A Watson murder is a form of California Penal Code 187 PC, second-degree murder. 1 It can be charged when someone with a prior California DUI conviction kills someone while driving under the influence. 2
“Watson murder” takes its name from a 1981 California Supreme Court case called People v. Watson. 3 In that case, the court held that a DUI driver who causes a fatal accident can be convicted of murder (Penal Code 187) if the driver acted with “implied malice.”
What is “implied malice” in a DUI murder case?
“Implied malice” is also known as “malice aforethought.” It does not require ill will toward the victim or an intention to cause the victim’s death. 4
Rather, a defendant acts with implied malice when:
- He or she intentionally commits an act (in this case driving under the influence);
- The natural and probable consequences of the act are dangerous to human life;
- At the time the defendant acts he or she knows the act is dangerous to human life; and
- The defendant deliberately acts with conscious disregard for human life. 5
The difficult part for the prosecutor is proving that the driver acted with a “conscious disregard for human life.”
If the prosecutor cannot do this, a California DUI that results in death will usually be charged as either:
- Penal Code 191.5(a), gross vehicular manslaughter while intoxicated, or
- Penal Code 191.5(b), vehicular manslaughter while intoxicated. 6
When can DUI be charged as murder in California?
Historically, prosecutors have brought murder charges only when:
- The defendant has at least one prior conviction for driving under the influence, and
- The defendant attended California DUI school or was read a “Watson admonition” in connection with the prior offense(s).
A “Watson admonition” is a warning given to defendants convicted of driving under the influence in California. It advises that DUI is extremely dangerous to human life and that a subsequent conviction might lead to murder charges. 7
Can DUI murder be charged without a prior Watson admonition?
Second-degree murder charges for DUI are most common when a defendant
- was previously given a Watson warning or
- attended DUI school.
But neither of these is required. A prosecutor can file murder charges any time there is a DUI fatality and the prosecutor can prove “implied malice.”
Malice may be implied when:
- The driver’s conduct showed a “wanton disregard” for life, and
- The facts show that the driver was especially aware of the risk his or her conduct created. 8
Example: Burt is an emergency medical technician (“EMT”). On his night off he goes out drinking. While driving home on the 405, Burt blacks out and swerves onto the shoulder. He strikes a driver who is changing a flat tire and kills him. The Los Angeles Deputy D.A. charges Burt with second-degree murder. She says that as a paramedic, Burt ‘should have known better’ than to drive drunk.” 9
What factors increase the likelihood of a DUI murder charge?
As a practical matter, a prosecutor is most likely to charge a defendant with Watson murder when he/she:
- Had a very high blood alcohol content (“BAC”) (typically 0.15% or more);
- Had multiple prior convictions for drunk and/or drugged driving; and/or
- Engaged in extremely reckless driving, such as:
What are the penalties?
Punishment for DUI murder in California can include:
- Fifteen (15) years to life in the California state prison; 13
- A fine of up to ten thousand dollars ($10,000); 14 and
- A “strike” on the defendant’s criminal record under California’s “Three Strikes” law. 15
The possible sentence increases if there are also surviving victims who suffered injury.
What are some common defenses?
Legal defenses to California DUI murder charges often include taking the position that:
- The defendant did not drive under the influence,
- The accident was not the defendant’s fault,
- The defendant did not act with implied malice, or
- There was police and/or prosecutor misconduct.
We discuss each of these approaches in more detail in Section 5, below.
To help you better understand the law, our California DUI lawyers discuss the following, below:
- 1. What is “Watson Murder” in California?
- 2. How does a prosecutor prove DUI murder?
- 3. Common characteristics of Watson murder cases
- 4. What are the penalties for California DUI Murder?
- 5. Legal defenses to California “Watson Murder” charges
“Watson murder” — also known as “DUI murder” — is a type of second-degree murder in California. It can be charged when someone with a prior DUI conviction causes a fatality while driving drunk or under the influence of drugs.16
The phrase “Watson murder” stems from the California Supreme Court case People v. Watson. In that case, the court held that driving under the influence could constitute the implied malice necessary for a second-degree murder conviction. 17
To convict a driver of DUI murder in California, the prosecutor must prove that the driver acted with “implied malice.” This requires the prosecutor to prove three facts (the “elements of the crime”):
- The defendant committed an intentional act that resulted in someone’s death (in this case drunk or drugged driving);
- The natural consequences of that act (driving under the influence) were dangerous to human life; and
- The defendant knowingly acted with a conscious disregard for that danger (in a DUI murder case, the risk of death). 18
Intent to kill is not necessary
Unlike first-degree murder in California, no “intent” to kill the victim is required for DUI murder charges. This distinguishes Watson murder (and other forms of second-degree murder) from first-degree murder. 19
Instead, the prosecutor must prove that the defendant acted with “implied malice.” That is, he or she must prove that the driver consciously disregarded the danger driving drunk posed to human life.
It might seem as if every driver should know that drunk driving can cause a fatality. But for purposes of a DUI murder charge, it usually takes something more.
How does the prosecutor prove implied malice?
To prove implied malice, the prosecutor must usually establish that the defendant had some special knowledge about the risks of impaired driving.
The prosecution will usually try to do this by showing that:
- The defendant was read (or signed) a “Watson” admonition for a prior DUI; or
- The defendant attended a court-approved DUI school for a prior DUI; or
- The defendant had some specialized knowledge of the risks of driving under the influence. For instance, perhaps he or she worked as a paramedic, a police officer, or another profession with firsthand awareness of the potential consequences of drunk driving. 20
Let’s take a closer look at each of these three factual situations.
The defendant was given a “Watson admonition” for a prior conviction
Since the Watson case, people who are convicted of a DUI in California are given a “Watson advisement” during their sentencing hearing.
The admonition is sometimes read to the defendant by the judge. 21 Or the defendant may be asked to sign a form (known as a “Tahl warning”) which reads:
“I understand that being under the influence of alcohol or drugs, or both, impairs my ability to safely operate a motor vehicle, and is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of my driving, someone is killed, I can be charged in California with murder.”
A prosecutor will show that the defendant received an admonition in connection with a prior DUI by:
- Introducing into evidence the “Tahl waiver” the defendant signed when he or she pled guilty, and/or
- Introducing the court docket showing that the judge read the Watson advisement during sentencing.
DUI school as a way of proving “implied malice”
Attendance at a court-approved “DUI school” may also satisfy the “implied malice” requirement for a DUI murder conviction.
The prosecutor will introduce the course materials and course records. If they show that the course materials warned about the risks of drunk or drugged driving, it might establish the implied malice to support a murder conviction.
Recently, prosecutors have begun charging DUI murder in a wider variety of cases.
For instance, in 2017, prosecutors charged a paramedic with second-degree murder. While driving drunk, the paramedic had struck and killed someone on the side of the highway. The prosecutor’s reasoning was that as a paramedic the defendant “should have known better.” 22
Many defense attorneys believe that this is a case of a prosecutor “overcharging” the crime. A prosecutor might overcharge in order to put pressure on the defendant to accept a “better deal” such as gross vehicular manslaughter.
An experienced California DUI defense attorney can help a defendant recognize this situation and avoid the trap.
Certain facts are common to most California DUI homicide cases. These include that:
- The defendant had multiple prior convictions for driving drunk or stoned,
- The defendant had a pre-drinking intent to drive,
- The defendant had a very high BAC (typically at least 0.15%) at the time of driving,
- The defendant drove extremely recklessly, and
- The defendant possessed special knowledge about the risks of driving while intoxicated (whether due to a prior Watson advisement, DUI school, or otherwise). 23
If the prosecutor cannot prove these facts, he or she will usually charge vehicular manslaughter while intoxicated.
Example: Vicki drives a group of her girlfriends to a birthday party. It is her turn to be the “designated driver.” Vicki does not intend to drink. But at the party, there is punch. It is fruity, sweet and delicious. Vicki has several cups, not knowing it contains rum. On the way home, she strikes and kills a pedestrian. Her BAC is 0.10, just over the .08 “legal limit” for a California DUI “per se.” Because Vicki did not intend to drink and drive and her BAC was only slightly over the limit, she should not be charged with DUI murder.
Second-degree DUI murder (Watson murder) can be punished by:
- Fifteen (15) years to life in the California State Prison; 24
- A fine of up to ten thousand dollars ($10,000); 25 and
- A “strike” on the defendant’s record under California’s “Three Strikes” law. 26
A “strike” will result in a doubled sentence for any subsequent felony offense committed by the defendant. 27
And if a defendant has two or more strikes and commits another strike felony he or she will receive a mandatory sentence of 25-years to life. 28
Additional penalties for injured survivors
People convicted of DUI murder face additional and consecutive time behind bars if there are additional victims who survive the accident. The amount that will be added to the sentence is:
- Three (3) to six (6) years for each surviving victim who suffers “great bodily injury” (defined as any significant or substantial injury), and
- One (1) year for each person with less serious injuries, up to a three (3)-year maximum. 29
Legal defenses to PC 187 DUI murder typically fall into four broad categories. These involve taking the position that:
- The defendant did not drive under the influence,
- The accident was not the defendant’s fault,
- The defendant did not act with implied malice, and/or
- There was misconduct by the police and/or prosecutor.
But remember – the burden is not on the defense to prove that the defendant did not drive drunk. The burden is on the prosecution to prove each element of the crime beyond a reasonable doubt.
With that in mind, let’s take a brief look at each of the above ways to fight DUI murder charges in California.
The defendant did not drive under the influence
If the defendant did not drive under the influence, he or she cannot be guilty of DUI murder.
So a skilled California DUI defense lawyer will almost always try to challenge the underlying DUI or arrest. Ways an attorney can do this include showing that:
- The police and lab did not strictly follow the procedures required by Title 17 of the California Code of Regulations; or
- The DUI blood test or DUI breath test results were not accurate; or
- The defendant was not the driver (the “no driving” defense).
The accident was not the defendant’s fault
Even if a defendant drove drunk or stoned, it does not prove that he or she caused the accident.
A good criminal defense lawyer will work with an accident reconstruction expert to establish what happened.
It might show that the accident—and, therefore, the resulting deaths–were not the defendant’s fault.
The defendant did not act with implied malice.
Proving implied malice is usually the key to a second-degree murder case under PC 187.
This is the most difficult element to prove and the one that is often the easiest to challenge.
Reasons why there might not be implied malice include:
- The defendant was not given a “Watson” admonition in connection with any prior DUI,
- The defendant never completed DUI school for any prior offense (or the program did not include a warning of the serious risks associated with driving under the influence), and
- The defendant has no specialized first-hand knowledge of the serious risks associated with driving under the influence.
Alternatively, a good drunk driving lawyer will try to show that the defendant’s conduct did not rise to the level of a “wanton disregard” for human life.
As Santa Ana DUI defense attorney John Murray 30 says:
“A California DUI murder conviction usually requires strong evidence that the defendant drove exceptionally recklessly and had an extremely high BAC. This presents an experienced California DUI defense with many opportunities to challenge the allegations.”
There was misconduct by the police and/or prosecutor.
Just because the charges are serious, it does not mean that the police and prosecutor can ignore a defendant’s constitutional rights.
If police misconduct is suspected, we can file a Pitchess motion to obtain the officer’s record.
This will often lead to getting evidence excluded. This can sometimes cause the prosecution’s entire case to crumble.
Or it can lead to a plea bargain to a lesser charge such as vehicular manslaughter or possibly even a “wet reckless” that will keep our client out of prison.
Charged with DUI murder in California? Call us for help . . .
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We may also be able to help if you were involved in a fatal DUI in Nevada. To learn more, please see our article on Nevada’s DUI with Death laws.
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- Penal Code 187(a) PC: “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.”
- California Criminal Jury Instructions (CALCRIM) 520. First or Second Degree Murder With Malice Aforethought (Pen. Code, § 187)
- People v. Watson (1981) 30 Cal.3d 290.
- CALCRIM 520
- See California Penal Code 191.5 PC — Vehicular manslaughter while intoxicated.
- When read to a defendant, the “Watson Admonition” is usually worded: “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.” The advisement is typically given at the sentencing hearing for all DUI charges: Vehicle Code 23152a driving under the influence, Vehicle Code 23152b driving with an excessive BAC, and Vehicle Code 23153 DUI causing injury.
- People v. Watson, endnote 3.
- Facts based on second-degree murder charges filed against Raymond Burley of Los Angeles in 2017. See “EMT faces steep penalty in fatal Long Beach DUI crash,” Press-Telegram, September 1, 2017.
- Vehicle Code 23582 VC.
- Vehicle Code 23109(a).
- Vehicle Code 2800.1 VC.
- Penal Code 190(a)
- Penal Code 672
- Penal Code 667.5 PC.
- Penal Code 187 PC, endnote 1. See also People v. Watson, endnote 3.
- People v. Watson, endnote 3
- CALCRIM 520, endnote 2.
- People v. Gonzales (1970) 4 Cal.App.3d 593.
- See, e.g., endnote 9.
- See endnote 7.
- People v. Autry (1995) 37 Cal.App.4th 351, 358.
- Penal Code 190(a) PC.
- California Penal Code 672 PC.
- Penal Code 667.5 PC.
- Penal Code 667 PC.
- Penal Code 12022.7 PC.
- The National Advocacy for DUI Defense placed Santa Ana DUI defense attorney John Murray on their list of the nation’s top DUI lawyers. Mr. Murray represents clients accused of committing DUI murder and other DUI offenses throughout Ventura, Orange, and Los Angeles counties.