Jim Porter: DUI can be second degree murder?
Special to the Sun
TAHOE/TRUCKEE and#8212; Ashley Johnigan drank the equivalent of 16 alcoholic drinks at a San Ynez bar called the Maverick Saloon. After drinking for more than three hours, she was and#8220;very drunk,and#8221; according to several witnesses. Finally the bartender cut her off at which point she stumbled outside and fell. Several friends told her she was drunk and that she shouldnand#8217;t drive and even offered to hail a taxi. Johnigan refused assistance and continued to slur she was and#8220;OKand#8221; and could drive. There is a lesson here folks. Drunks donand#8217;t know when they canand#8217;t drive.
Johnigan drove toward her home 19 miles away in her Mercedes while the bartender called 911. CHP officers soon found her car parked in the traffic lane and when they activated their overhead lights, she sped off weaving down the winding road at over 70 mph. She hit another car head-on, killing its passenger and injuring the driver of a second vehicle. Johnigan smelled of alcohol, had red watery eyes, said she was drunk, adding she had and#8220;one shot of tequila about 2 hours ago,and#8221; which is slightly different than the standard response, and#8220;a couple of beers.and#8221; Johnigan had a .24% blood alcohol content and#8212; three times the legal limit.
The jury convicted the defendant of driving while intoxicated, second degree murder and gross vehicular manslaughter, sentencing her to 15-years-to-life in state prison. She was ordered to pay $1,056,201.58 in victim restitution.
Johnigan contended there was insufficient evidence to support the murder conviction because she never had a prior DUI or alcohol-related collision, nor had she ever had to attend a drunk driver education program, and without such a and#8220;predicate act,and#8221; malice required for a murder conviction could not be implied.
Johnigan clearly had a drinking problem. All sorts of witnesses came forward testifying about her driving and drinking, and jeopardizing her child whom she frequently drove around while intoxicated. One of her friends testified that she once said and#8220;someday my drinking might get me into trouble.and#8221;
Those who drive and drink (many of us do it) need to know that a grossly intoxicated driver may be convicted of second degree murder. Thatand#8217;s right, murder: and#8220;One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental facilities with a vehicle capable of great force and speed, reasonably may be held to exhibit conscious disregard of the safety of others.and#8221;
Johnigan was fishing for a vehicular manslaughter conviction versus vehicular second degree murder.
The Court of Appeal discussed a case where the driver, who was sober, drove 70 mph in a 35 mph zone crossing the yellow line and running a red light. His conviction for second degree murder was upheld as he was well aware of the risk inherent in his driving.
The Johnigan Court of Appeal had no problem concluding that an implied malice second degree murder conviction for a driving offense does not require a and#8220;predicate actand#8221; like a prior DUI. She knew she was very intoxicated, and it was dangerous for her to drive and the jury properly concluded she acted with implied malice. Second degree murder conviction upheld.
Lesson to learn
The lessons here are obvious. Long gone are the days where drunk drivers are slapped on the wrist. A DUI is bad enough, but with extenuating circumstances and obvious intoxication, it is easy to cross the line into implied murder and face 15 years in prison. We need to be careful and we need to help our friends when they say and#8220;Iand#8217;m OK, I can drive.and#8221;
Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at firstname.lastname@example.org or at the firmand#8217;s website http://www.portersimon.com.
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