In a word, yes.
Some states have enacted statutes providing that murder in the second-degree is committed where a death is caused by a "wanton or reckless act" — the mental element of malice normally required for second-degree murder being inferred from the act of drunk driving. A few states have even gone so far as to designate the offense as first-degree murder, although slightly different language such as "utter recklessness or wantonness" may be used.
The California Supreme Court, for example has affirmed a prosecutor’s right to charge an intoxicated driver involved in a fatal accident with second-degree murder – even though there is no such statutory law. In People v. Watson, the Court held that the vehicular manslaughter statute was not intended to establish gross negligence as the ceiling for culpability in traffic fatality cases. The required mental state, it held, can be implied from the facts where the driver "does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life".
Hmmmm. The concept of "malice" seems pretty vague — and the Supreme Court’s definition does not seem to make the definition of the crime any less confusing.
Perhaps recognizing this, another California court later tried to explain what constitutes "malice" for purposes of "DUI murder". In People v. Olivas, that court tried to distinguish the mental element of "malice" in a murder case from the mental element of "gross negligence" in a vehicular manslaughter case. Second-degree murder ("malice") required a "conscious disregard for life", while manslaughter ("gross negligence") requires only a "conscious indifference to the consequences". The court found the difference "subtle but nevertheless logical".
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