Implied malice for murder in the second degree while driving under the influence of alcohol 

• Second Degree Murder - DUI Law
• Implied Malice
• Watson Admonitions & "Watson murder"

In California, prosecutors can charge second-degree murder in a fatal DUI crash, alleging that the defendant acted with “implied malice” because he or she has prior DUI conviction(s) and was warned of the safety risks of driving under the influence, and the current collision involved hazardous driving. 

A “Watson admonition” is a warning given to those convicted of driving under the influence advising that DUI is dangerous to human life and that another conviction might lead to murder charges. Such a charge is called a “Watson murder.” 

Lagunas, the defendant, while driving at high speed in a residential neighborhood and under the influence of alcohol, failed to negotiate a turn or apply his brakes, and killed a six-year-old girl playing in her front yard. A witness estimated the vehicle speed at 40-plus mph and stated that the driving was “erratic, unresponsible, too fast, dangerous.” After having failed to safely negotiate a right-hand turn at a T-intersection, Lagunas’ vehicle drifted across the road, struck a parked vehicle, jumped the curb, and drove into the yard of a home where the young girl was playing. She was transported to the hospital, where she later died due to numerous blunt force injuries. The defendant was not injured. 

Lagunas displayed objective symptoms of intoxication and was unable to follow simple instructions in performing a field sobriety test. He was arrested for DUI. A search of his vehicle located an empty beer can in the center console and three more empty cans in the rear seat area. 

Lagunas said his brakes locked up and he could not control the steering to make the turn. He admitted to drinking one 24-ounce can of beer at breakfast, a second at his jobsite, and a third prior to leaving work. 

An accident reconstruction expert testified that a physical examination and testing of the braking and steering systems on the vehicle revealed all were in proper working order: “Zero issues with it;” “I did not observe any deficiencies or anything that I would be able to articulate could have contributed to the crash.”  

A DOJ forensic expert testified that Lagunas’ BAC at the time of the accident was .23 or the equivalent of between 11-12 standard drinks (a standard drink being one twelve-ounce can of beer, a four-ounce glass of wine, or one shot of 80-proof liquor).  

Lagunas had two prior DUI convictions. Both times, as part of sentencing and court-ordered education, he was told that if he continued to drive while intoxicated and killed someone, he could be charged with murder. 

Defendant was convicted of second-degree murder under the “implied malice” doctrine. He appealed, contending there was insufficient evidence to support a murder conviction. Lagunas argued that the prosecution engineered “an all or nothing case by charging only second-degree murder, betting that no jury would let the appellant walk free after causing the death of an innocent little girl.” He contended that the court erred by not instructing the jury on a lesser offense of gross vehicular manslaughter while intoxicated.

The 4DCA found there was substantial evidence to support the jury’s determination that Lagunas acted with conscious disregard for human life. In the murder statute, malice can either be express or implied (187(a) P.C.) “Malice is implied when an unlawful killing results from a willful act, the natural and probable consequences of which are dangerous to human life, performed with conscious disregard for that danger.” Implied malice while driving under the influence of alcohol has substantial case law precedent in California (People v. Watson?(1981) 30 Cal.3d 290).  

Here, the defendant’s BAC was three times the legal limit. He brought alcohol to his jobsite, consumed alcohol at the jobsite, and there was a reasonable inference that he had “predrinking intent to drive after consumption,” the court said. Lagunas had two DUI convictions and was mandated to attend educational programs on the dangers of drunken driving. Twice he was warned that DUI with a death could result in a murder charge. Lastly, he was driving in a residential neighborhood at a high rate of speed and could not negotiate a turn or apply his brakes in time to avoid a collision. There was substantial evidence in the court record that the defendant acted with conscious disregard for human life. His conviction was upheld. 

As to the claim that the trial judge failed to instruct the jury on the lesser crime of gross vehicular manslaughter while intoxicated, the court ruled this contention was moot. This crime is not a lesser and included offense of second-degree murder.  

As the first responder, you arrive at a crash where someone is dead or critically injured and on their way to the emergency room. During your field investigation, you form the opinion that the suspect driver is under the influence of alcohol or drugs (800 E.C.). You make a probable cause arrest. This is a potential murder crime scene and should be treated and maintained as such. Incident command should take place and trained investigative personnel called in for follow-up. 

Keep in mind, the Watson court relied on some or all of the following factors for an implied malice murder conviction:  

1) BAC above the legal limit, which could also include drug or polysubstance intoxication;  

2) Predrinking intent to drive;  

3) Knowledge of the hazards of driving while intoxicated; and

4) Highly dangerous driving.  

In the present case, all four were present. 

This is the second case in recent months upholding a second-degree murder conviction for a DUI-related death. In Peo. v. Suazo (9/19/23) 95 Cal. App. 5th 681), the facts were as follows:  

Defendant Suazo, while intoxicated, drove his vehicle at a high rate of speed, went off the highway, through a fence, and into the area of a tractor supply business. When his vehicle struck agricultural equipment, his passenger was ejected from the vehicle and died at the scene. Suazo fled. Tulare County CHP found him in the cab of a truck 100 feet from the scene.  

Accident reconstruction and examination of the vehicle control module indicated that Suazo’s vehicle was travelling at 91 mph just two seconds before the collision and that the accelerator was 70% depressed. Suazo’s BAC tested at 0.139 and 0.146, he was driving on a suspended license, and had a prior DUI conviction where he was warned of the dangers of driving while intoxicated and that a death of another could result in a murder charge. 

Suazo was convicted of second-degree murder under the implied malice doctrine, as well as other counts (felony hit and run, driving with a suspended license, driving with BAC greater than .08). He appealed, contending that the evidence was insufficient to support his murder conviction because he consumed alcohol without intending to drive afterward and then drove while he was unconscious of his acts. 

The 5DCA ruled a “predrinking” intent to drive is not an absolute requirement before a jury may find a driver acted with implied malice. Instead, it is only one of the?four Watson factors that may be considered as evidence. It was clear in the evidence presented that Suazo drove himself to a restaurant with the intent to drink there and had no plan to avoid driving himself home.  

Suazo also argued that the trial court erred in failing to instruct the jury on voluntary intoxication and being unconscious of his acts to the extent that they bore on whether he had the necessary knowledge required to remain at the scene of injury accident and render aid as possible. The court ruled that no instruction on voluntary intoxication is applicable for a violation of section 20001 V.C. (fleeing the scene after an injury accident), because this offense is a general intent crime. Penal Code section 29.4(b) allows for admission of evidence of voluntary intoxication solely with regard to specific intent crimes. Nor was an instruction for being unconscious of the act necessary. Unconsciousness caused by voluntary intoxication does not negate a finding of implied malice, the court said. 

So, nice try: “I drank so heavily that I don’t remember driving, the crash, or fleeing the scene, thus my actions don’t rise to the level a conscious disregard for human life!” The California Supreme Court has denied a rehearing of this case. 

There is an interesting case now pending here in the North Bay. The Napa County District Attorney’s Office has charged two defendants with second-degree murder for the death of 17-year-old high school girl due to their act of selling her fentanyl. The prosecutor’s legal argument is that her death resulted from implied malice due to selling a dangerous drug with a conscious disregard for human life. I will follow this case because it could bring about some interesting precedent. 

Stay Safe, 

RH