If you are convicted of an alcohol related driving offense, including driving under the influence (DUI), or reckless driving involving alcohol ("wet reckless"), the Court will read you the following admonition during sentencing:
"You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If you continue to drive while under the influence of alcohol or drugs, or both, and, as a result of that driving, someone is killed, you can be charged with murder."
Some law enforcement officers read this to a person after he/she has been arrested for DUI. Officers will often also ask the person to sign a written page containing the advisement, which acknowledges that they understand it.
This language is also included in the "DUI Advisement of Rights, Waiver, and Plea Form," which is initialed and signed by all persons entering into a DUI plea bargain agreement. It is meant to deter persons from driving under the influence in the future. This admonition is also very significant legally. Normally, if a DUI driver is involved in an accident and, as a result, someone is killed, the DUI driver will be charged with Penal Code Section 191.5 (Gross Vehicular Manslaughter While Intoxicated) and can be sentenced to a maximum of 10 years in state prison. However, if a person has been convicted of DUI and read this admonition, it can serve as proof of "implied malice" in a future prosecution in a DUI case involving death. This allows the prosecution to charge the DUI driver with second degree murder pursuant to Penal Code Section 187. This became law following the California Supreme Court decision in People v. Watson (1981) 30 Cal. 3d 290 (thus the name "Watson Admonition").
Murder is the killing of a human being with malice aforethought (as opposed to manslaughter which is the killing of a human being without malice aforethought). There are two types of malice aforethought: express malice and implied malice. Express malice requires an intent to kill. Implied malice requires that the following be proven: 1) the person intentionally committed an act; 2) the natural consequence of the act was dangerous to human life; 3) at the time of the act, the person knew the act was dangerous to human life; and 4) the person acted deliberately with a conscious disregard to human life. Other judicial decisions have elaborated on what needs to be shown to support the "implied malice theory" in a DUI murder prosecution. Typically, the following things will need to be shown: 1) BAC greatly above the .08 legal limit; 2) a pre-drinking intent to drive; 3) knowledge of the hazard of DUI (this is where the Watson admonition comes in. Once a person is convicted of DUI (or other alcohol related driving offense) they are considered to be on notice that driving under the influence of alcohol or drugs is dangerous and endangers the lives of others); and 4) highly dangerous driving.
The difference between a conviction for vehicular manslaughter versus second degree murder is significant. Whereas the manslaughter conviction carries a maximum 10 year sentence (if the driver does not have prior convictions), the second degree murder charge carries a minimum term of 15 years. If you have a prior DUI conviction and are subsequently arrested for DUI involving a death, the Los Angeles County District Attorney may very well charge you with second degree murder. If you are in this unfortunate position it is important to CONTACT our office immediately to discuss the case. DUI Lawyer Robert D. Berglund will carefully analyze the police report, as well as all other evidence, and carefully evaluate the factors that prosecutors must establish to prove the "implied malice theory" against you. This is a difficult analysis and should not be left in the hands of an attorney that is not experienced in DUI defense. Berglund Law Office, P.C. specializes in representing person charged with DUI. CONTACT our office today for a free and confidential consultation.
