Monday, June 3, 2013

How Can DUI be Considered Murder?

I’ve said before that DUIs are like snowflakes.  And I love that about my work.  I’ve done some work in other areas of the law and to me, a lot of it is just boring compared to criminal defense.  For example, when I was doing some personal injury work, it just seemed like every time I worked on a “soft tissue injury” rear-end collision, it was the same case.  Over and over.

But DUI is different every time.  That’s why when some people call me and say “Well, my brother/friend/cousin/acquaintance got a DUI and ________ happened to them.”  Usually my response is something like, “They had a different case than you.”  And my new client’s case may be better or worse.

Concerning the levels of seriousness, DUI cases can be as benign or as serious as one can imagine.  A person can be “over-charged” with DUI if they had a beer with dinner and they are stopped at a roadblock.  Maybe a police officer smells alcohol on their breath and they make a decision immediately that the person is DUI.  In that circumstance, my client may not be guilty of any crime whatsoever.

On the other end of that spectrum, DUIs can be extremely serious, depending on the consequences that occur as a result of the intoxicated driving.  A person can even be charged with Murder as a result.

Pursuant to a WLKY report:  “Metro Louisville police said 24-year-old Anthony Smiley struck another car head on in the 7100 block of Manslick Road about 8:30 p.m. Friday.  The coroner's office said the occupant of the second car, 57-year-old Robin Jent, of Louisville, died an hour after the accident.  Smiley is being held at Metro Corrections on charges of DUI and murder.”

At this point it may be appropriate to back up and discuss a broader principle of criminal law.  Assuming the primary function of punishing someone for criminal conduct is to deter others from committing the same conduct, isn’t it appropriate to punish based on the action, and not the consequence of that action?  The conduct of driving at a .3 BAC is the same conduct regardless of whether the driver causes an accident, no?  For the sake of brevity, we’ll continue this conversation on another day, and focus on how and why a person can be charged with Murder based on driving under the influence.

Typically people think of Murder as an intentional action.  The actor pulls a trigger, intending to kill another, and the intended result occurs.  But with DUI, we’ll assume the driver doesn’t intend to harm anyone.  Rather, the intent is simply to get home (or whatever the final destination should be).

How, then, can someone be charged with Murder based on drunk driving?

Under KRS 507.020(b), A person is guilty of Murder when “Including, but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.”

The key language that we’ll look at today is “wantonly” engaging in conduct that creates grave risk of death.  In order to figure out what constitutes wanton behavior, we’ll jump to the definitions of Mental States under KRS 501.020(3).  Under this subsection, Wanton behavior is defined as follows:  “A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.”

Now, I know there’s a lot of what one might consider unnecessarily* superfluous legalese in that definition, so let’s cut through the fluff and get a real definition.  The difference between reckless conduct and wanton conduct is this:  People who are reckless do things without regard to risk involved.  People who are wanton KNOW the risk and they disregard that risk.

Specifically, the risk we’re talking about today is the risk that driving drunk can cause serious or fatal accidents.  And the drunker the driver, the higher the risk.

Here’s the rub:  As a person’s intoxication increases, the risk of hurting someone on the road increases.  Also, as a person’s intoxication increases, the cognitive ability decreases.  Thus, if a person is incredibly drunk (such that they are more dangerous), doesn’t it naturally follow that the likelihood that they can appreciate (and consciously disregard) risk has decreased?

Marinate on that a bit.

Anyway, the Wanton provision of the Murder statute is a way that the Commonwealth can prosecute someone for Murder without the actual INTENT to kill someone.  In legal slang, this is called “Depraved Heart Murder.”

I think that would make a phenomenal movie title, don't you?  I wonder if Ashley Judd and Morgan Freeman are available...

If you have any more questions about DUI, Murder, or any other issues, my door is always open.  You can call me at 502.618.4949.



*See what I did there?  Glad you're paying attention.

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