Vehicular Manslaughter While Intoxicated
(California Penal Code 191.5b PC)

Under California Penal Code 191.5(b) PC, the crime of vehicular manslaughter while intoxicated occurs when

  1. a defendant both drives under the influence and engages in some additional negligent behavior while driving, and
  2. as a result, another person is killed.1

Penal Code 191.5(b) PC reads: "(b) 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, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence."

PC 191.5(b) vehicular manslaughter while intoxicated is sometimes called "vehicular manslaughter while intoxicated with ordinary negligence."2 If the defendant is believed to have acted with gross negligence, then the prosecutor will likely charge him/her with the more serious offense of PC 191.5(a) gross vehicular manslaughter while intoxicated instead.

Examples

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

  • While driving with a blood alcohol content (“BAC”) of .08 or greater, a woman places a call to a friend on her cell phone without using a hands-free device. While she is on the call, she hits a jaywalking pedestrian, who dies instantly.
  • A man drives home after using cocaine at a party (thus committing DUI of drugs). He drives about 10 miles over the speed limit on a major arterial and ends up rear-ending a car that comes to a sudden stop in front of him. The driver of that car has a heart attack and dies.

Penalties

PC 191.5(b) vehicular manslaughter while intoxicated is a wobbler in California law. This means that it can lead to either:

  • misdemeanor penalties (up to one (1) year in county jail), OR
  • felony penalties (sixteen (16) months, two (2) years or four (4) years in prison).3

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

Legal defenses

An experienced California DUI defense attorney can help you argue some of the following legal defenses to fight your PC 191.5(b) charges:

  • You were not actually intoxicated at the time of the accident;
  • You did not act with 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 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 Vehicular Manslaughter While Intoxicated?

The California offense of vehicular manslaughter while intoxicated (ordinary negligence) 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 ordinary negligence; and
  4. Your negligent conduct caused the death of another person.5 

In order to better understand the legal definition of 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 if you either:

Example: Rick is a twenty-year-old college student. He meets some friends for dinner and two beers and then gets in his car to drive to his part-time job. He feels perfectly sober.

He hits a red light at an intersection where he needs to turn right. Rick focuses on watching the cross traffic to his left, waiting for an opening so that he can turn right while his light is still red. He makes the turn when there are no more cars coming from the left, not noticing a pedestrian who entered the crosswalk at the last minute. Rick's car hits the pedestrian, who later dies from her injuries.

Officers on the scene insist that Rick take a DUI breath test, and he agrees. It turns out his BAC is just over 0.05. Because of his age, he can be charged with vehicular manslaughter while intoxicated even though he 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 vehicular manslaughter while intoxicated with ordinary negligence, you must either:

  • Commit a California crime that is not a felony (that is, a misdemeanor or an infraction), 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

Also, this additional unlawful act does not need to be 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, Mary and her friend Carmen get into Mary's car in a heavy rainstorm. Mary drives onto the freeway. 

Mary and Carmen soon hit a congested patch on the freeway. But traffic is still moving in an exit-only lane. So Mary drives in that lane for as long as it lasts and then tries to merge back into thru traffic when the lane ends. In doing so, she loses control of the car on the wet freeway and hits a guardrail.

Carmen, who is not wearing her seat belt, is killed instantly.

Mary had been driving in an exit-only lane when she didn't need to exit—an unlawful act that isn't necessarily dangerous. But because of the wet, slippery conditions the act was dangerous—and could lead to PC 191.5(b) vehicular manslaughter while intoxicated charges.

Negligence

You are only guilty of Penal Code 191.5(b) PC vehicular manslaughter while intoxicated if you act with ordinary negligence.10

Ordinary negligence means that you failed to use reasonable care to prevent reasonably foreseeable harm to someone else. You behave negligently when you either:

  • Do something a reasonably careful person would not do in the same situation, or
  • Fail to do something that a reasonably careful person would do in the same situation.11

Causing the death of another person

Vehicular manslaughter while intoxicated (ordinary negligence) charges will only stick if your negligent conduct actually causes another person's death.12

Under PC 191.5(b), this means that the death must be a direct, natural, and probable consequence of your conduct.13

Your actions do need to be the only cause of death, though—as long as they are one “substantial factor” causing it.14

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(b) PC 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 Penal Code 191.5(b)?

Ordinary negligence vehicular manslaughter while intoxicated under Penal Code 191.5(b) PC is what is known as a “wobbler.”15 This means that it may be charged as a misdemeanor or a felony, depending on

  • the circumstances of the offense, and
  • your criminal history.16

If you are charged with ordinary negligence vehicular manslaughter while intoxicated as a misdemeanor, the potential consequences are:

  1. Misdemeanor (summary) probation,
  2. Up to one (1) year in county jail, and/or
  3. A fine of up to one thousand dollars ($1,000).17

But if the offense is charged as a felony, then you could face the following PC 191.5(b) penalties:

  1. Felony (formal) probation,
  2. Sixteen (16) months, two (2) years or four (4) years in prison, and/or
  3. A fine of up to ten thousand dollars ($10,000).18

2.1. Will I lose my driver's license after a PC 191.5(b) conviction?

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

If you are charged with and convicted of ordinary vehicular manslaughter while intoxicated as a felony, your license will be suspended for one (1) year. But you will not lose your license if you are convicted of misdemeanor PC 191.5(b).19

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.20

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

You probably know that the law enforcement system—and public opinion—come down very hard on drinking and driving. When a fatal accident happens and alcohol or drugs may have been involved, everyone is quick to point fingers.

But the situation is not hopeless. An experienced DUI and criminal defense lawyer can help you fight gross vehicular manslaughter while intoxicated charges with legal defenses that may 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 were intoxicated when the accident occurred and thus are guilty of PC 191.5(b). 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 negligence 

Driving a vehicle requires all of us to make quick decisions. It can be hard to argue that these decisions, even if they ultimately turn out to be bad ones, are actually negligent and so can support vehicular manslaughter while intoxicated charges.

If you are charged with ordinary-negligence PC 191.5(b), you may be able to argue that your driving was not different from that of any reasonably careful person—and thus that you weren't negligent at all.

Your negligence didn't cause the victim's death

According to Burbank criminal and DUI defense attorney John Murray21:

“Sorting out cause and effect in situations involving auto accidents is challenging. Even if you drove negligently and someone ended up dead, there is a chance the prosecution 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. And this is a key element of the crime of vehicular manslaughter while intoxicated.”

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 vehicular manslaughter while intoxicated law 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.22

If s/he did so, then s/he was not negligent and so cannot be guilty of vehicular manslaughter while intoxicated with ordinary negligence.23

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(b) charges by arguing that the emergency—his headlight going out in a fog—justified his actions.

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

Vehicular manslaughter while intoxicated PC 191.5(b) may be replaced by certain related California crimes. These include:

4.1. Penal Code 191.5(a) gross vehicular manslaughter while intoxicated

If you commit the crime of vehicular manslaughter while intoxicated as defined above, but you are alleged to have acted with gross negligence, you will be charged with Penal Code 191.5(a) PC gross vehicular manslaughter while intoxicated.24

Gross negligence is more severe than the ordinary negligence required for a PC 191.5(b) conviction. You commit an act with gross negligence if you act with a reckless disregard for human life.25

PC 191.5(a) gross vehicular manslaughter while intoxicated carries more severe penalties than ordinary vehicular manslaughter while intoxicated. It is always a felony and can lead to up to ten (10) years in prison and/or a 3-year driver's license suspension.26

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

Penal Code 192(c) vehicular manslaughter/gross vehicular manslaughter is basically identical to PC 191.5(b), 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.27

For this reason, your defense attorney may try to get your charges reduced from Penal Code 191.5 vehicular manslaughter while intoxicated 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, with a maximum felony jail sentence of six (6) years—and the possibility of being tried only as a misdemeanor.28

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.29

4.3. DUI murder/Watson murder

The most egregious cases involving DUI-related deaths are prosecuted as murder rather than 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.30

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--and so obviously leads to much more severe penalties than Penal Code 191.5(b) PC vehicular manslaughter while intoxicated.

Call us for help...

Call us for help

 

For questions about Penal Code 191.5(b) PC vehicular manslaughter while intoxicated (ordinary negligence) 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 – Vehicular manslaughter while intoxicated. (“(b) 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, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence. (c) . . . (2) Vehicular manslaughter while intoxicated in violation of subdivision (b) is punishable by imprisonment in a county jail for not more than one year or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or four years. . . . (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”) 591 
  3. Penal Code 191.5 PC – Vehicular manslaughter while intoxicated, endnote 1, above.
  4. Vehicle Code 13350 VC – Required revocation; affidavit of understanding; reinstatement. 
  5. CALCRIM 591 – Vehicular Manslaughter While Intoxicated—Ordinary Negligence (Pen. Code, § 191.5(b)), 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 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 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 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. CALCRIM 591 – Vehicular Manslaughter While Intoxicated—Ordinary Negligence (Pen. Code, § 191.5(b)), endnote 2, above.
  11. Same
  12. Same
  13. Same
  14. Same
  15. Penal Code 191.5 PC – Vehicular manslaughter while intoxicated, endnote 1, above.
  16. Same.
  17. Same.

    See also Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies [such as felony PC 191.5(b) vehicular manslaughter while intoxicated with ordinary negligence], in addition to the imprisonment prescribed.”)

  18. Same. 
  19. Vehicle Code 13350 VC – Required revocation [of driver's license after a PC 191.5(b) conviction; affidavit of understanding; reinstatement, endnote 4 above.
  20. Vehicle Code 14601.1 VC - Driving when privilege revoked or suspended for other reasons
  21. Burbank 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.
  22. CALCRIM 591 – Vehicular Manslaughter While Intoxicated—Ordinary Negligence (Pen. Code, § 191.5(b)).
  23. See same.
  24. Penal Code 191.5 PC – Gross vehicular manslaughter while intoxicated 
  25. CALCRIM 590 – Gross Vehicular Manslaughter While Intoxicated (Pen. Code, § 191.5(a)) 
  26. Penal Code 191.5 PC -- Gross vehicular manslaughter while intoxicated
  27. Penal Code 192(c) PC – Vehicular manslaughter law 
  28. Penal Code 193 PC – Vehicular manslaughter; punishment
  29. See same.
  30. See People v. Watson (1981) 30 Cal.3d 290.

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