Can Drunk Driving be Charged as Murder in Michigan Where Death Occurs?

Whenever a death occurs at the hands of another, a prosecutor must decide how to charge the wrongdoer. In several Michigan cases involving intoxicated drivers where a death has occurred prosecutors have successfully charged murder. Generally, the appropriate charge is OWI causing death, which is punishable by up 15 years in prison. See MCL Sec. 257.625, et. seq. However, if a prosecutor can show that a driver had the appropriate mindset, then this charge can be raised to second degree murder, which is punishable by up to life in prison. See MCL Sec. 750.317.

Each crime is made up of elements, and an important element in a murder charge relates to the element of criminal intent. Consequently, in a murder case, the prosecutor will be focused on evaluating any evidence suggesting the wrongdoer’s state of mind, or what we lawyer’s call “mens rea.”

To be first degree murder, a person must intend to kill someone, and there must be some evidence of planning, or what lawyers call “malice aforethought.” It is hard to imagine there ever being a case containing evidence that a person intended to get drunk and then drive their car into a specific person thereby killing them. Without such level of premeditated intent, a first-degree murder charge is not appropriate.

Also, first degree murder is a specific intent crime. A person who commits a specific intent crime does so with a mind toward a specific outcome. They mean or want for the harm to occur. Naturally then, intoxication can be a defense to specific intent crimes. See M Crim JI 6.2 Intoxication as a Defense to a Specific Intent Crime.

On the other hand, all drunk driving cases in Michigan are general intent crimes. A person can commit a general intent crime without actually intending the outcome. Drunk driving is a general intent crime for two reasons. The first is that people usually do not intend to drive drunk. In most instances people drink too much and while experiencing the intoxicating effects of the alcohol get in their car and “decide” to drive. The second reason drunk driving is a general intent crime is that intoxication is not a defense to a general intent crime. Of course, intoxication is an element of drunk driving, and therein lies the problem with murder charges when drunk driving is the cause of the death.

Like first degree murder, second degree murder is also a specific intent crime. However, a defense does not stop possible prosecution, and prosecutors can overcome such a defense by creatively looking for evidence of a heightened level of “malice.” Also, because second degree murder is murder without malice aforethought, meaning without the necessary planning, with the right facts a prosecutor can decide that this is the right crime.

There are two possible states of mind in a second-degree murder case, and the prosecutor need only show one of them. These include:

The driver intended to kill the decedent or to cause them great bodily harm, or
The driver’s actions show that they knowingly created a very high risk of death or great bodily harm to the decedent.

It is the second state of mind that is generally applicable to a second-degree murder charge in a Michigan drunk driving case.

One case in Michigan where second-degree murder was charged involved a person who was highly intoxicated driving at a grossly excessive speed while talking on the phone immediately prior to the accident that caused the death. Additionally, there were text messages that this same person wanted to kill someone that night. The prosecutor in this case successfully argued that these facts showed the appropriate state of mind. The jury agreed and convicted. Because intoxication is only a defense, the jury was willing and able to disregard that evidence, or to not believe it sufficient to allow the driver in this case to avoid culpability.

Although a second-degree murder charge in a drunk driving case can be appropriate, prosecutor’s know that conviction in these cases is never easy. If you are charged with drunk driving in Michigan where a death has occurred, consider having one of the DUI lawyers at the Barone Defense Firm review your case. The evaluation is free and carries no obligation.