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Can driving while high on Marijuana causing a death support a Murder charge?

Posted by Joel Bailey | Jul 11, 2022 | 0 Comments

A recent California appellate Court in People v. Murphy (2022) B306773 affirmed a trial court's conviction of Mr. Murphy for three counts of murder in the second degree (187(a) PC.). The court reasoned that evidence of recent smoking of marijuana, combined with reckless driving, was sufficient to support a finding that Mr. Murphy was impaired for purposes of driving and that at the time, he had a “conscious disregard for human life” (People v. Watson (1981) 30 Cal.3d 290, 300.)

How do they prove someone is “high” on pot for DUI?

Current California law prohibits driving under the influence of alcohol, drugs, or their combination (23152 CVC.)  However, the mere presence of marijuana, and its metabolites, is not sufficient to conclude someone is impaired.  Most expert toxicologists support the position that marijuana users can experience cognitive impairment hours after ingesting marijuana, well after the euphoric effect has worn off.  Unlike alcohol, marijuana DUIs do not have a particular level at which a person is presumed impaired. Hence, a review of a biological chemical sample and Field Sobriety Tests (FSTs) are the common ways the prosecution seeks to establish impairment.

If I smoke pot regularly, will I test “positive” for purposes of a DUI?

Because marijuana is a lipophilic drug (stored in fatty tissue and organs), it is harder to accurately estimate levels and impairment than a substance like alcohol (hydrophilic, or water-based, and stored in the blood.)  Also, blood can be tested for marijuana use by detecting the metabolite delta-9 tetrahydrocannabinol  (THC).  But, there are also two types of THC; Carboxy is non-psychoactive, and Hydroxy, which is psychoactive (meaning still affecting and potentially impairing brain function.)  A regular user of marijuana can have a high carboxy level of THC but may not have used it for days (or even weeks) and may not be impaired for driving.

Are marijuana-DUIs defensible?

Having an educated, aggressive DUI attorney or criminal defense attorney is critical to properly defending marijuana DUIs.  A detectable level of THC should not be sufficient to sustain a DUI charge.  Since marijuana is now legal in California, the government and the public are becoming more informed on its use and effect on people.  Driving “stoned” (impaired by marijuana to the point where mental or physical abilities are not at the level of a sober person of ordinary prudence—whatever that means) is still dangerous and properly illegal. 

How can they charge a DUI Marijuana driver with Murder?

Murder in California is the unlawful killing of another human being with malice (187(a) PC.)   Malice can be expressed (e.g., I want to kill you) or implied (I know the action I am about to take could reasonably and probably kill someone, but I am taking it anyway.)  The subjective knowledge of the dangerousness of the conduct is the crux of a DUI-murder case.  Subjective means an actual appreciation of the likelihood of death of another.  DUI-murder cases originated from facts where a defendant had a prior conviction for DUI, was told of the danger, or had a particularized knowledge of the dangerousness and drove impaired anyway.  California law explicitly states that no provocation or malicious intent is required (People v. Soto (2018) 4 Cal.5th 968, 974.)

How can they charge murder if someone didn't mean to hurt anyone?

As described above, the “implied malice” state of mind can be proven circumstantially via disregard for the actual appreciation of the danger of driving impaired.  Additional facts such as a high level of alcohol, hydroxy THC, or other drugs of impairment, and/or the manner of driving have all been used by the government in attempts to support a murder charge where there is no proof the driver wished harm to anyone.

DUI-homicides (a death has occurred) are tragic for all involved.  Arguably, prosecuting someone for murdering another person for whom they have no ill-will furthers the tragedy.  Gross Vehicular Homicide while Intoxicated (191.5(c)(1) PC) is often the more appropriate charge, punishable by up to ten (10) years in state prison.  Prosecutorial discretion in filing and negotiating these cases can be abused for political and ideological reasons that should not affect the decision-making process.

If you or a loved one is involved in accident with drugs or alcohol, call our Carlsbad and Vista offices immediately, we can help (760) 643-4025.  JB Law, APC.

About the Author

Joel Bailey

ATTORNEY BIO & EXPERIENCE Attorney Joel W. Bailey was born and raised in San Diego, California. He graduated from La Jolla High School, and earned degrees in Psychology, Sociology and Political Science from UC Santa Barbara, as well as completing a semester at the Universidad de Madrid in Spain....


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