The most serious charge related to driving under the influence is that of second degree murder, P.C. §187, based on the implied malice theory. Murder is defined as the killing of a human being or fetus with malice afore- thought. There are two types of malice aforethought: (a) express malice; and (b) implied malice. Proof of either one is sufficient to establish the state of mind necessary for murder. Express malice requires an intent to kill, whereas implied malice requires the following:

1. The defendant intentionally committed an act;
2. The natural consequences of the act were dangerous to human life;
3. At the time of the act, the defendant knew the act was dangerous to human life; and
4. The defendant deliberately acted with a conscious disregard for human or fetal life. 

THE PEOPLE V. WATSON DECISION

In People v. Watson (1981) 30 Cal 3rd 290, the California Supreme Court held that under certain circumstances, vehicular homicides may be charged as second degree murder under the implied malice theory.

In attempting to distinguish and define the difference between acts that constituted implied malice from gross negligence, the Watson Court stated:

The requisite culpability for the vehicular manslaughter charged here is gross negligence which has been defined as the exercise of so light a degree of care as to raise a presumption of conscious indifference to the consequences. On the other hand, malice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. Though these definitions bear a general similarity, they are not identical. Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness, which is absent in gross negligence. Id., at 296.

Implied malice is defined in CAIJIC 8.11 and CALCRIM 520. In essence, both instructions state that malice is implied when the natural consequences of the act are dangerous to human life and the act was deliberately performed with knowledge of the danger, and that a reasonable person would know of the likely and probable consequences.

Malice is implied when the circumstances of the killing show that it was done with an “abandoned and malignant heart” Penal Code § 188. Implied malice requires that the defendant act with a wanton disregard of the high probability of death. People v. Schmies (1996) 44 Cal.App.4th 38.

Numerous cases have followed the Watson decision and have attempted to define the difference between implied malice and gross negligence. Each of the cases had some common characteristics: all involved high blood alcohol levels; most of the defendants had numerous prior DUI convictions; and most of the defendants had knowledge regarding the danger of drinking and driving.

THE WATSON ADVISEMENT & OTHER FORMS OF NOTICE OF THE DANGERS OF DUI 

Another factor the prosecution can now use to prove the subjective awareness of the defendant’s state of mind at the time of the act of driving is CVC §23593. This new statute requires courts to advise all persons convicted of CVC §§ 23152, 23153, or 23103 pursuant to C.V.C § 23103.5 (alcohol-related reckless driving) of the dangers of drinking and driving and that they may be charged with murder if they kill someone while driving under the influence. Thus, not only is a jury informed about a defendant’s prior conviction, but it will also likely be informed that this admonition was specifically given to the defendant on a prior occasion.

In recent years, the Orange County District Attorney's Office has used traffic school references containing the Watson Advisement and even a student's attendance in a DUI Awareness Class at High School or College as a basis to charge a defendant with a Watson Murder instead of Vehicular Manslaughter.

PUNISHMENT: A defendant convicted of P.C. § 187 (second degree murder) faces an indeterminate sentence of 15 years to life. P.C. § 190 (a). The defendant faces 25 to life if the victim is a police officer killed in the performance of his duties and the defendant knows or should have known the victim is a police officer. P.C. §190(b). Such knowledge can be evidenced by the presence of a marked police car and/or uniformed officer.