In California, a driver can be convicted of second-degree murder (Penal Code 187(a)) based on a finding of implied malice when the circumstances involved in the killing show "an abandoned and malignant heart" (People v. Soto (2018) 4 Cal. 5th 968, 974).
In the wake of California's legalization of marijuana for recreational use, there have been increased concerns about the potential rise in marijuana-related DUIs. In recent years, California courts have made some critical rulings in both alcohol- and drug-related DUI cases, specifically in the area of "implied malice."
In short, if you use marijuana (even if obtained legally) and get behind the wheel, this can meet the definition of implied malice. If you get into an accident while impaired and are involved in an accident resulting in someone's death, you could face much more than DUI and vehicular manslaughter charges: you could be charged with 2nd-degree murder.
Simply put, driving under the influence of marijuana (or any drug) leading to a fatal accident can result in serious legal consequences, including vehicular homicide or even murder charges, particularly when coupled with the concept of "implied malice." Vehicular manslaughter in California (Penal Code 192(c) PC) occurs when someone drives a vehicle negligently or unlawfully, resulting in the death of another person.
DUI of Marijuana
Despite the legalization of recreational marijuana in California, it remains illegal to drive under the influence of marijuana (or any drug that impairs driving ability). The legalization of marijuana does not negate the fact that driving under its influence is dangerous.
Marijuana, like alcohol, can impair driving by affecting psychomotor functions, attention, reaction time, and coordination. Unlike alcohol, where blood alcohol content (BAC) provides a relatively clear measure of impairment, no established THC level in blood definitively indicates impairment, which can make prosecuting marijuana DUI cases more challenging.
If a driver is under the influence of marijuana and their impairment causes a fatal accident, they can be charged with vehicular manslaughter, which is a "wobbler" offense that can be charged as either a misdemeanor or a felony. Misdemeanor vehicular manslaughter carries a potential sentence of up to one year in county jail, while felony vehicular manslaughter can result in a prison sentence of up to six years.
Proving DUI of Marijuana
Current California law prohibits driving under the influence of drugs (DUID), defined under Vehicle Code 23152(f) VC.. However, the mere presence of marijuana and its metabolites is not sufficient to conclude that someone is impaired. Most expert toxicologists support the position that marijuana users can experience cognitive impairment hours after ingesting marijuana, which is well after the euphoric effect has worn off.
Unlike alcohol, marijuana DUIs do not have a particular level at which a person is presumed impaired. Thus, a review of a biological chemical sample and field sobriety tests (FSTs) are the common ways the prosecution seeks to establish impairment.
Suppose you smoke pot regularly. Does that mean you will test positive for purposes of a DUI? Because marijuana is a lipophilic drug that is stored in fatty tissue and organs, it is harder to accurately estimate levels and impairment than a substance like alcohol, which is hydrophilic, or water-based, and stored in the blood.
Also, blood can be tested for marijuana use by detecting the metabolite delta-9 tetrahydrocannabinol (THC). However, there are two types of THC, including Carboxy, which is non-psychoactive, and Hydroxy, which is psychoactive, meaning it still affects and potentially impairs brain function. A regular user of marijuana can have a high Carboxy level of THC but may not have used it for days or weeks, and may not be impaired for driving.
What "Implied Malice" Means
Under California law, second-degree murder (Penal Code 187(a)) does not involve premeditation or deliberation like first-degree murder. Instead, prosecutors must establish that the defendant acted with malice, either express or implied. Implied malice exists when someone:
- Intentionally commits an act.
- Understands that their actions are dangerous to human life.
- Consciously disregards that danger.
This concept is central to charging certain DUI fatalities as second-degree murder. Courts have determined that driving under the influence, knowing the risks to human safety, can constitute implied malice, particularly if the driver has received prior DUI education or warnings.
Simply put, implied malice, in the context of a DUI-related death, refers to a situation where a driver, despite not intending to kill, acts with a conscious disregard for human life, knowing their actions endanger others. The concept of "implied malice" significantly impacts the legal consequences of DUI-related fatalities, potentially elevating manslaughter charges to murder.
Proving Murder Without Intent
As noted above, the "implied malice" state of mind can be proven circumstantially via disregard for the actual appreciation of the danger of driving impaired.
Additional facts such as a high level of alcohol, hydroxy THC, or other drugs of impairment, or the manner of driving, have all been used by the district attorney in attempts to support a murder charge where there is no proof the driver wished harm to anyone.
DUI-homicides, meaning a death has occurred, are tragic for all involved. Arguably, prosecuting somebody for murdering another person for whom they have no intent to cause injury furthers the tragedy.
Gross vehicular homicide while Intoxicated (191.5(c)(1) PC) is often the more appropriate criminal charge, punishable by up to ten years in state prison. Prosecutorial discretion in filing and negotiating these cases can be abused for political and ideological reasons that should not affect the decision-making process.
The "Watson Murder" Standard
The foundation of implied malice in DUI-related murder cases comes from the landmark 1981 court case People v. Watson. Watson was involved in a deadly car crash after consuming alcohol and driving at excessive speeds.
Evidence showed that Watson, having chosen to drink and drive, understood the risks and disregarded the potential harm his actions could cause. The court ruled that implied malice applied in Watson's case, allowing the prosecution to charge him with second-degree murder. This precedent created what is now referred to as a "Watson murder."
Prosecutors often seek to prove implied malice by showing the driver had prior DUI convictions, attended DUI education programs, or received a "Watson advisement" - a warning given in DUI cases stating that driving under the influence is dangerous and could lead to murder charges if someone is killed.
Murder in California is the unlawful killing of another human being with malice (187(a) PC). As noted above, malice can be expressed or implied. The subjective knowledge of the dangerousness of the conduct is the crux of a DUI-murder case. Subjective means an actual appreciation of the likelihood of the death of another.
DUI-murder cases originated from facts where a defendant had a prior conviction for DUI, was told of the danger, or had a particularized knowledge of the dangerousness, and drove impaired anyway. California law explicitly states that no provocation or malicious intent is required.
People v. Murphy (2022)
While the concept of a "Watson murder" has been well established, a more recent court decision, People v. Murphy (2022), has specifically tied driving under the influence of marijuana to the implied malice standard.
In this case, there was abundant evidence that the defendant had been actively and heavily using marijuana at the time he ran a red light at more than twice the speed limit and collided with another vehicle, killing three people in the process.
Evidence presented in court demonstrated that Murphy knew of the impairing effects of marijuana, yet chose to drive anyway. He was convicted of three counts of 2nd-degree murder. On appeal, the higher courts confirmed the lower court decision, stating that these actions met the standard for implied malice.
This decision is significant because it underscores that even legally obtained substances, such as marijuana purchased at a dispensary, can result in severe criminal charges if they contribute to impaired driving in fatal accidents, and the user got behind the wheel knowing the risks of DUI, which all drivers do, since California's driver's license application requires applicants to sign an affidavit to this effect.
Drivers in California must understand that "legal" does not mean "safe" when it comes to substances that impair judgment and motor skills.
Potential Defense Strategies
While being accused of causing a fatality due to marijuana DUI is a serious matter, it does not automatically mean you'll be convicted of murder. The prosecution must still meet a high burden of proof, and an experienced California criminal defense lawyer can explore several defense strategies, depending on the circumstances of the case. While each case is unique, here are some common approaches:
- Challenging the Evidence of Impairment: Proving someone was under the influence of marijuana during an accident can be tricky. Unlike alcohol, where BAC offers clear evidence, marijuana's effects vary from person to person. A defense attorney may argue that the evidence of impairment is inconclusive.
- Questioning Knowledge of Risk: For implied malice to apply, the prosecution must show that the defendant knew the risks of driving under the influence. If you have had no prior DUI convictions or haven't undergone DUI education programs (or if you got your license before the DUI affidavit became standard), your attorney might argue that you don't meet the standard of implied malice because you were unaware that your marijuana use caused the risk of an accident.
- Challenging the Cause of the Accident: Marijuana use aside, second-degree vehicular homicide only applies if prosecutors can show that your actions directly caused the accident. A skilled defense lawyer might challenge this assumption by showing that other external factors, like weather conditions, road hazards, or the actions of the other driver, might be argued as the true cause of the crash. This defense won't necessarily result in dismissal of charges, but it could be used to negotiate for reduced DUI charges as an alternative to vehicular homicide.
Having an educated DUI attorney is critical to properly defending marijuana DUIs. A detectable level of THC should not be sufficient to sustain a DUI charge. Since marijuana is now legal in California, the government is becoming more informed about its use and effects on people.
Driving "stoned" on marijuana to the point where mental or physical abilities are not at the level of a sober person of ordinary prudence is still dangerous and properly illegal. For additional information, contact our California criminal defense lawyers, Eisner Gorin LLP, located in Los Angeles.
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