California "Gross Vehicular Manslaughter While Intoxicated"
Penal Code 191.5(a) PC

"Gross vehicular manslaughter while intoxicated" under Penal Code 191.5(a) PC occurs when a defendant commits both California DUI and a grossly negligent act, and as a result another person is killed.1

Penal Code 191.5(a) reads: "Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence."

Under PC 191.5(a), the "grossly negligent act" must be separate from the actual DUI--and must be either a California misdemeanor, an infraction, or an otherwise lawful act that could cause death.2

Examples

PC 191.5(a) gross vehicular manslaughter while intoxicated could be charged in the following situations:

Penalties

Penal Code 191.5(a) PC gross vehicular manslaughter while intoxicated is a California felony and leads to a sentence in the state prison of four (4), six (6) or ten (10) years.3

Your driver's license will also be suspended if you are convicted of California gross vehicular manslaughter while intoxicated.4

Car-crash-scene-at-night
PC 191.5(b) PC vehicular manslaughter while intoxicated is charged when a defendant is DUI, drives with ordinary negligence, and kills someone as a result

Legal defenses

An experienced California DUI defense attorney can help you fight PC 191.5(a) gross vehicular manslaughter while intoxicated charges using some of following legal defenses:

  • You were not actually intoxicated at the time of the accident;
  • You did not act with gross negligence;
  • Your negligence didn't cause the victim's death, and
  • You were facing a sudden emergency and acted reasonably under the circumstances.

In order to help you better understand California gross vehicular manslaughter while intoxicated laws, our California DUI and criminal defense attorneys will address the following:

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is the Legal Definition of Gross Vehicular Manslaughter While Intoxicated?

The California offense of gross vehicular manslaughter while intoxicated under Penal Code 191.5(a) PC has the following “elements of the crime”:

  1. You drove a vehicle while intoxicated or under the influence of drugs;
  2. While doing so, you also committed another misdemeanor, California infraction, or otherwise lawful act that might cause death;
  3. You committed that misdemeanor, infraction, or other act with gross negligence; and
  4. Your grossly negligent conduct caused the death of another person.5
Car-crash-scene-with-ambulance
You must act with negligence to be guilty under PC 191.5(b).

In order to better understand the legal definition of PC 191.5(a) gross vehicular manslaughter while intoxicated, let's look more closely into these elements.

Driving intoxicated or under the influence of drugs

You are considered to have driven intoxicated for purposes of Penal Code 191.5(a) PC if you either:

Example: Chelsea is a 19-year-old college student. She meets some friends for dinner and a beer at a restaurant. Feeling perfectly sober, she gets in her car to drive home.

On the drive, Chelsea picks up her phone to read a text message that turns out to be extremely interesting. She gets absorbed in the message and runs a stoplight just after it turns red, hitting a car that is turning left. The driver of the other car is killed.

Officers on the scene insist that Chelsea take a DUI breath test, and she agrees. It turns out her BAC is just over 0.05. Because of her age, she can be charged with gross vehicular manslaughter while intoxicated even though she was well under the normal legal BAC of 0.08.

A misdemeanor, infraction, or lawful act that could cause death

In order to be guilty of Penal Code 191.5(a) PC gross vehicular manslaughter while intoxicated, you must either:

  • Commit a California crime that is not a felony, or
  • Commit a lawful act in a way that is likely to cause death.7

Importantly, the DUI—or DUI of drugs—itself can NOT be the unlawful act/act likely to cause death. In other words, there must be another unlawful act or lawful act that could cause death in addition to the act of driving intoxicated or high.8

DUI-checkpoint-at-night
You are only guilty of ordinary vehicular manslaughter while intoxicated if you commit an additional unlawful or negligent act besides DUI.

Also, this additional unlawful act does not need to an inherently dangerous crime. But it does need to be an act that's dangerous under the circumstances.9

Example: After drinking and smoking pot, Emilio and his friend Tom get in Emilio's car. Emilio drives onto the freeway. That stretch of freeway has a 65 mph speed limit.

Emilio and Tom soon hit a congested patch on the freeway, where traffic is moving at less than 40 mph. Emilio weaves through lanes rapidly and manages to travel at a speed of 75 mph before he crashes into another vehicle. Tom, who is not wearing his seat belt, is killed instantly.

Emilio had been driving only 10 mph over the posted speed limit—an unlawful act that isn't necessarily dangerous. But in a situation where traffic was moving much more slowly than that, the act was dangerous—and could lead to gross vehicular manslaughter while intoxicated charges.

Gross negligence

The legal definition of “gross vehicular manslaughter while intoxicated” under PC 191.5(a) centers around the concept of gross negligence. If the prosecutor cannot show that you acted with gross negligence, then you may only be guilty of ordinary vehicular manslaughter while intoxicated.10

Gross negligence occurs only when:

  1. A person acts in a reckless way that creates a high risk of death or great bodily injury, AND
  2. A reasonable person would have known that acting in that way would create such a risk.11

Gross negligence needs to be more than ordinary carelessness or error in judgment. It is only gross negligence if the person acts markedly differently from how an ordinarily careful person would act in the same situation—and if his/her act indicates a real disregard for human life.12

BUT the combination of driving under the influence and violating a traffic law is not, by itself, enough to add up to gross negligence. California juries in PC 191.5(a) gross vehicular manslaughter while intoxicated cases are asked to also consider other aspects of the defendant's conduct, including his/her level of intoxication and how s/he was driving.13

Example: After drinking heavily at a party, John and two friends get into John's car. John starts driving on a two-lane country road.

John is speeding and keeps veering out of his lane and crossing the double yellow line. Then, at a blind curve on a downgrade, John crosses the double yellow line on purpose to pass three cars, while going 10 miles over the speed limit. He hits an oncoming vehicle, killing one of his passengers.

John's actions indicate the kind of disregard for human life and consequences that could be called gross negligence—and support gross vehicular manslaughter while intoxicated charges.14

Causing the death of another person

Gross vehicular manslaughter while intoxicated charges under California Penal Code 191.5(a) PC will only stick if your grossly negligent conduct actually causes another person's death.15

This means that the death must be a direct, natural, and probable consequence of your conduct.16

Your actions do need to be the only cause of death, though—as long as they are one “substantial factor” causing it.17

Example: Aaron has a few beers and smokes some pot at a friend's house before driving home. On the way home, he remembers he forgot his phone at his friend's house. He is stopped at a red light and makes an illegal U-turn immediately after the light turns green.

Unfortunately a pedestrian is crossing the street illegally just as Aaron makes his turn. He strikes the pedestrian, knocking her down and injuring her. Another car then strikes the pedestrian a second time, killing her.

Aaron may be criminally liable for Penal Code 191.5 gross vehicular manslaughter while intoxicated because his actions were a factor in the pedestrian's death—even though her own negligence and the second car also played a role.

2. What are the Penalties for PC 191.5(a)?

Penal Code 191.5(a) gross vehicular manslaughter while intoxicated is a California felony.

Handcuffed-hands-beside-gavel
PC 191.5(b) vehicular manslaughter while intoxicated is a wobbler in California.

The potential consequences of a PC 191.5(a) conviction consist of:

  1. Felony (formal) probation,
  2. Imprisonment in the California state prison for four (4), six (6), or ten (10) years, and/or
  3. A fine of up to ten thousand dollars ($10,000).18

BUT you face a tougher sentence if you have one or more prior convictions of any of the following offenses:

  1. Vehicular manslaughter while intoxicated (gross or ordinary),
  2. Gross (but not ordinary) vehicular manslaughter under Penal Code 192(c) PC,
  3. Penal Code 192.5(a) or (b) vehicular manslaughter while operating a boat,
  4. Vehicle Code 23152 VC DUI, or
  5. Vehicle Code 23153 VC DUI causing injury.19

If you have a prior conviction for any of these offenses, then you face a state prison sentence of fifteen (15) years to life for a gross vehicular manslaughter while intoxicated conviction!20

2.1. Will I lose my driver's license if I am convicted of PC 191.5(a) gross vehicular manslaughter while intoxicated?

Loss of your driving privileges is another harsh penalty for violating California Penal Code 191.5(a) PC.

California-drivers-license
A felony PC 191.5(b) conviction will lead to your driver's license being suspended for one year.

If you are convicted of gross vehicular manslaughter while intoxicated, then the California DMV will revoke your driver's license for a period of at least three (3) years.21

If you drive during the period when your license is revoked, you will then face additional charges for driving on a suspended license under Vehicle Code 14601 VC.22

3. How Can I Fight PC 191.5(a) Gross Vehicular Manslaughter While Intoxicated Charges?

There are few experiences more devastating than being involved in a car accident where someone is killed. If you were drinking or doing drugs before the accident, it may be tempting to blame yourself. And of course the authorities will be tempted to blame you too.

But this doesn't mean the accident was your fault—and it definitely doesn't mean you should go to prison for it! An experienced DUI and criminal defense lawyer can help you try to fight the PC 191.5(a) charges. 

Severely-wrecked-car-with-emergency-vehicles-nearby
You can fight PC 191.5(b) charges with the right legal defenses.

Potential legal defenses to gross vehicular manslaughter while intoxicated charges include:

You were not actually intoxicated at the time of the accident

You and your attorney can use typical California DUI defenses to challenge the assertion that you intoxicated when the accident occurred. For example, you can

  • Attack the evidence that you appeared to be under the influence—fatigue, illness, or just the shock of an accident can all mimic the symptoms of being drunk or high;
  • Challenge the validity of your blood or breath test results (for example, your DUI blood or breath testing procedures may have violated California Title 17); and/or
  • Question the police procedures used in your DUI arrest and investigation in an effort to uncover police misconduct or other unlawful actions.

You did not act with gross negligence

Driving a vehicle requires all of us to make quick decisions—and it can be hard to argue that these decisions, even if they ultimately turn out to be bad ones, were so bad as to be grossly negligent.

If you are face PC 191.5(a) gross vehicular manslaughter while intoxicated charges, you and your attorney may be able to successfully argue that your behavior was merely negligent—not grossly so. This can radically reduce your potential penalties by making you eligible to be charged under PC 191.5(b), California's ordinary vehicular manslaughter while intoxicated law, instead.

Your gross negligence didn't cause the victim's death

According to Bakersfield criminal and DUI defense attorney John Murray23:

“Sorting out cause and effect in situations involving auto accidents is challenging. Even if you drove with gross negligence and someone ended up dead, there is a chance the prosecution in your gross vehicular manslaughter while intoxicated case cannot prove that it was your negligence—rather than, say, the negligence of the victim or a third party, or other forces beyond your control—that caused the death.”

An experienced criminal defense attorney will know how to challenge the prosecution's account of what happened, often with the help of accident reconstruction expert witnesses.

You faced a sudden emergency and acted reasonably under the circumstances

California gross vehicular manslaughter while intoxicated law (Penal Code 191.5(a)) says that a defendant is only required to use the same care and judgment in an emergency that an ordinarily careful person would use in the same situation.24

If s/he did so, then s/he was not grossly negligent.25

Example: Peter is driving home from a boozy dinner on the freeway on a foggy night. One of his headlight bulbs burns out. Terrified by the poor visibility, Peter drives below the freeway minimum speed. The result is that another car rear-ends him going much faster—and a passenger in that car is killed.

Peter may be able to fight Penal Code 191.5 charges by arguing that the emergency—his headlight going out in a fog—justified his actions.

4. Penal Code 191.5(a) PC and Related Offenses

PC 191.5(a) gross vehicular manslaughter while intoxicated may be charged with or replaced by certain related California crimes. These include:

4.1. Penal Code 191.5(b) vehicular manslaughter while intoxicated

PC 191.5(b) vehicular manslaughter while intoxicated has an identical legal definition to PC 191.5(a) gross vehicular manslaughter while intoxicated--except that for PC 191.5(b) you only need to have acted with ordinary negligence, not gross negligence.26

Wrecked-front-of-car
PC 192(c) is a less severe offense than PC 191.5(b) vehicular manslaughter while intoxicated.

Ordinary negligence is when you fail to act the way a reasonably careful person would to avoid harm to someone else.27

PC 191.5(b) can be a useful charge reduction or plea bargain from PC 191.5(a) because the penalties are lighter. Attempting to reduce gross vehicular manslaughter while intoxicated charges to PC 191.5(b) is a common strategy when the evidence for gross negligence is weak.

Vehicular manslaughter while intoxicated without gross negligence is a wobbler--which means it can be charged as either a misdemeanor or a felony. The maximum misdemeanor sentence is one (1) year in county jail, and the maximum felony sentence is four (4) years in prison.28

4.2. Penal Code 192(c) vehicular manslaughter/gross vehicular manslaughter

Penal Code 192(c) gross vehicular manslaughter is basically identical to PC 191.5(a) gross vehicular manslaughter while intoxicated, with one major difference: Penal Code 192(c) does not require that you be under the influence of alcohol or drugs when the accident occurred.29

For this reason, your defense attorney may try to get your charges reduced from Penal Code 191.5(a) PC to Penal Code 192(c) if the evidence that you were intoxicated at the time of the accident is weak.

Gross vehicular manslaughter under Penal Code 192(c) is a wobbler. The maximum felony jail sentence is six (6) years.30

And Penal Code 192(c) without gross negligence is a misdemeanor, carrying a maximum penalty of one (1) year in county jail and no required suspension of your driver's license.31

4.3. DUI murder/Watson murder

The most egregious cases involving DUI-related deaths are prosecuted as murder rather than PC 191.5(a) gross vehicular manslaughter while intoxicated.

Specifically, California prosecutors may charge you with DUI murder/”Watson” murder if you kill another person while driving under the influence, and both of the following are true:

  1. You are a repeat DUI offender, and
  2. You either have been educated about the dangers of DUI, or were given something known as a “Watson advisement” at the time of a prior DUI conviction.32

A “Watson advisement” is a warning that it is extremely dangerous to human life to drive under the influence of drugs or alcohol, and that killing someone while DUI can lead to murder charges.

Watson murder in California is prosecuted under Penal Code 187, California's murder law.

Call us for help…

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For questions about Penal Code 191.5(a) PC gross vehicular manslaughter while intoxicated or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

For more information on DUI causing injury or death in Nevada, please see our page on DUI causing injury or death in Nevada.

¿Habla español? Visite nuestro sitio Web en español sobre "homicidio vehicular en estado de embriaguez" en la ley de California.


Legal References:

  1. Penal Code 191.5 PC – Gross vehicular manslaughter while intoxicated. (“(a) Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence. . . . (c)(1) Except as provided in subdivision (d), gross vehicular manslaughter while intoxicated in violation of subdivision (a) is punishable by imprisonment in the state prison for 4, 6, or 10 years. . . . (d) A person convicted of violating subdivision (a) who has one or more prior convictions of this section or of paragraph (1) of subdivision (c) of Section 192,subdivision (a) or (b) of Section 192.5 of this code, or of violating Section 23152 punishable under Sections 23540, 23542, 23546, 23548, 23550, or 23552 of, or convicted of Section 23153 of, the Vehicle Code, shall be punished by imprisonment in the state prison for a term of 15 years to life. Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the term imposed pursuant to this subdivision. (e) This section shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290. (f) This section shall not be construed as making any homicide in the driving of a vehicle or the operation of a vessel punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.”)
  2. Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 590 Gross Vehicular Manslaughter While Intoxicated (Pen. Code, § 191.5(a)). (“The defendant is charged [in Count ] with gross vehicular manslaughter while intoxicated [in violation of Penal Code section 191.5(a)]. To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant (drove under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug]/drove while having a blood alcohol level of 0.08 or higher/drove under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug] when under the age of 21/drove while having a blood alcohol level of 0.05 or higher when under the age of 21); 2 While driving that vehicle under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug], the defendant also committed (a/an) (misdemeanor[,]/ [or] infraction[,]/ [or] otherwise lawful act that might cause death); 3 The defendant committed the (misdemeanor[,]/ [or] infraction[,]/ [or] otherwise lawful act that might cause death) with gross negligence; AND 4 The defendant's grossly negligent conduct caused the death of another person.”)
  3. Penal Code 191.5 PC – Gross vehicular manslaughter while intoxicated, endnote 1, above.
  4. Vehicle Code 13351 VC – Required revocation; conviction of vehicular manslaughter while intoxicated. (“(a) The department immediately shall revoke the privilege of a person to drive a motor vehicle upon receipt of a duly certified abstract of the record of a court showing that the person has been convicted of any of the following crimes or offenses: . . . (3) Violation of subdivision (a) of Section 191.5 [gross vehicular manslaughter while intoxicated] or subdivision (a) of Section 192.5 of the Penal Code or of Section 2800.3 causing serious bodily injury resulting in a serious impairment of physical condition, including, but not limited to, loss of consciousness, concussion, serious bone fracture, protracted loss or impairment of function of any bodily member or organ, and serious disfigurement. (b) The department shall not reinstate the privilege revoked under subdivision (a) until the expiration of three years after the date of revocation and until the person whose privilege was revoked gives proof of financial responsibility, as defined in Section 16430.”)
  5. CALCRIM 590 – Gross Vehicular Manslaughter While Intoxicated (Pen. Code, § 191.5(a)). endnote 2, above.
  6. See same.
  7. See same.
  8. People v. Soledad (1987) 190 Cal.App.3d 74, 82. (““[T]he trial court erroneously omitted the ‘unlawful act' element of [gross] vehicular manslaughter [while intoxicated] when instructing in … [the elements] by referring to Vehicle Code section 23152 rather than another ‘unlawful act' as required by the statute [Penal Code 191.5(a) PC].”)
  9. People v. Wells (1996) 12 Cal.4th 979, 982. (“[T]he offense which constitutes the ‘unlawful act' need not be an inherently dangerous misdemeanor or infraction. Rather, to be an ‘unlawful act' within the meaning of section 192(c)(1) [vehicular manslaughter statute; also applies to gross vehicular manslaughter while intoxicated], the offense must be dangerous under the circumstances of its commission. An unlawful act committed with gross negligence would necessarily be so.”)
  10. Penal Code 191.5 PC – Gross vehicular manslaughter while intoxicated, endnote 1, above.
  11. CALCRIM 590 – Gross Vehicular Manslaughter While Intoxicated (Pen. Code, § 191.5(a)). (“Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when: 1 He or she acts in a reckless way that creates a high risk of death or great bodily injury; AND 2 A reasonable person would have known that acting in that way would create such a risk. In other words, a person acts with gross negligence when the way he or she acts is so different from how an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.”)
  12. See same.
  13. CALCRIM 590 – Gross Vehicular Manslaughter While Intoxicated (Pen. Code, § 191.5(a)). (“The combination of driving a vehicle while under the influence of (an alcoholic beverage/ [and/or] a drug) and violating a traffic law is not enough by itself to establish gross negligence. In evaluating whether the defendant acted with gross negligence, consider the level of the defendant's intoxication, if any; the way the defendant drove; and any other relevant aspects of the defendant's conduct.”)
  14. Based on the facts of People v. Bennett (1991) 54 Cal.3d 1032.
  15. CALCRIM 590 – Gross Vehicular Manslaughter While Intoxicated (Pen. Code, § 191.5(a)), endnote 2, above.
  16. CALCRIM 590 – Gross Vehicular Manslaughter While Intoxicated (Pen. Code, § 191.5(a)). (“[An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.]”)
  17. See same. (“[There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.]”)
  18. Penal Code 191.5(a) PC – Gross vehicular manslaughter while intoxicated, endnote 1, above.
  19. See same.
  20. See same.
  21. Vehicle Code 13351 VC – Required revocation; conviction of vehicular manslaughter while intoxicated, endnote 4 above.
  22. Vehicle Code 14601.1 VC - Driving when privilege revoked or suspended for other reasons [including PC 191.5(a) gross vehicular manslaughter while intoxicated conviction]. 
  23. Bakersfield criminal and DUI defense attorney John Murray has earned a statewide reputation for representing DUI and vehicular manslaughter while intoxicated defendants throughout Orange and Los Angeles Counties. He is equally at home in the California criminal courts and at various California DMV hearing locations.
  24. CALCRIM 591 – Vehicular Manslaughter While Intoxicated—Ordinary Negligence (Pen. Code, § 191.5(b)) [also applies to PC 191.5(a) gross vehicular manslaughter while intoxicated]. (“[A person facing a sudden and unexpected emergency situation not caused by that person's own negligence is required only to use the same care and judgment that an ordinarily careful person would use in the same situation, even if it appears later that a different course of action would have been safer.]”)
  25. See same.
  26. Penal Code 191.5(b) PC -- Vehicular manslaughter while intoxicated [potential charge reduction from PC 191.5(a) gross vehicular manslaughter while intoxicated]. 
  27. CALCRIM 591 – Vehicular Manslaughter While Intoxicated—Ordinary Negligence (Pen. Code, § 191.5(b)) [potential charge reduction from PC 191.5(a) gross vehicular manslaughter while intoxicated]. 
  28. Penal Code 191.5(c)(2) PC -- Vehicular manslaughter while intoxicated [potential charge reduction from PC 191.5(a) gross vehicular manslaughter while intoxicated].
  29. Penal Code 192(c) PC – Vehicular manslaughter law [compare to Penal Code 191.5(a) PC California's gross vehicular manslaughter while intoxicated law]. 
  30. Penal Code 193 PC – Vehicular manslaughter; punishment [compare to penalties for Penal Code 191.5(a) PC gross vehicular manslaughter while intoxicated]. 
  31. See same.
  32. See People v. Watson (1981) 30 Cal.3d 290.

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