When Does DWI Resulting in Death Amount to Second Degree Murder?

Jeff wrote here about a recent high-profile case in which a defendant, Raymond Cook, was charged with multiple felony offenses after he drove while impaired and crashed into a young woman’s car in North Raleigh, killing her. In Cook’s case, the jury found the defendant guilty of impaired driving, involuntary manslaughter and felony death by vehicle, but acquitted him of second-degree murder.

Driving while impaired and proximately causing the death of another constitute both involuntary manslaughter and felony death by vehicle. A person convicted of both offenses arising from the same incident may, however, be sentenced only for felony death by vehicle, the more serious offense. See State v. Lopez, 363 N.C. 535, 536 (2009).

Because the act of driving while impaired violates a safety statute designed for the protection of human life and limb, it amounts to culpable negligence as a matter of law, see State v. Davis, 198 N.C. App. 443, 447 (2009). Thus, driving while impaired and proximately (but unintentionally) causing the death of another is involuntary manslaughter, a Class F felony. However, the act of impaired driving and thereby causing the death of another does not, without more, constitute second-degree murder. That is because second-degree murder requires malice, a state of mind that can be proved in vehicular homicide cases by showing that the defendant intended to drive in a reckless manner reflecting knowledge that injury or death would likely result. See State v. McAllister, 138 N.C. App. 252 (2000).

The United States Court of Appeals for the Fourth Circuit in United States v. Fleming, 739 F.2d 945 (4th Cir. 1984), distinguished impaired driving and death cases involving malice (and thereby supporting murder charges) from those involving culpable negligence (supporting a conviction for manslaughter, but not murder) this way:

In the vast majority of vehicular homicides, the accused has not exhibited such wanton and reckless disregard for human life as to indicate the presence of malice on his part. In the present case, however, the facts show a deviation from established standards of regard for life and the safety of others that is markedly different in degree from that found in most vehicular homicides. In the average drunk driving homicide, there is no proof that the driver has acted while intoxicated with the purpose of wantonly and intentionally putting the lives of others in danger. Rather, his driving abilities were so impaired that he recklessly put others in danger simply by being on the road and attempting to do the things that any driver would do. In the present case, however, danger did not arise only by defendant’s determining to drive while drunk. Rather, in addition to being intoxicated while driving, defendant drove in a manner that could be taken to indicate depraved disregard of human life, particularly in light of the fact that because he was drunk his reckless behavior was all the more dangerous.

Id. at 948.

Following are examples of evidence deemed sufficient by North Carolina’s appellate courts to establish malice in impaired driving cases resulting in the death of someone other than the driver:

  • Driving by the defendant with a revoked license and having previously been convicted of impaired driving, see State v. Armstrong, 691 S.E.2d 433, 438 (N.C. App. 2010); State v. McAllister, 138 N.C. App. 252 (2000)
  • Driving with a blood alcohol concentration measuring 0.113 three hours after the accident and driving into the victim’s lane of travel after having previously been convicted of driving after consuming by a person under 21, and, while facing pending charges of driving while impaired and driving while license revoked, see State v. Gray, 137 N.C. App. 345 (2000)
  • Driving while substantially impaired after prior convictions for driving while impaired, driving with a revoked license and using false license tags along with an inspection sticker obtained by lying to inspection personnel, see State v. McBride, 109 N.C. App. 64, 68 (1993)
  • After fighting with bar proprietor, driving away and passing a car in a no passing zone, striking a motorcycle, and driving through a red light into an intersection at 60 miles per hour, crashing into a car and killing all three of its occupants, see State v. Snyder, 311 N.C. 391, 392-394 (1984)

In Cook’s case, the State introduced evidence that the defendant drove 30 mph over the speed limit on a North Raleigh Street, with an alcohol concentration two or three times over the legal limit. Such evidence appears legally sufficient to establish malice, but, of course, even evidence legally sufficient to establish guilt may be insufficient to convince the jury.

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