Scott Henson at Simple Justice writes about the word Murder losing its meaning. Of a man recently convicted of second degree murder in New York for an Intoxication Manslaughter offense, Scott wrote:

It’s not to say that McPherson was an innocent man.  He was not.  It’s not to say that McPherson’s conduct was excusable.  It was not.

But Franklin McPherson did not commit murder.  To say he did cheapens the crime for the victims of real murders, and subjects it to the transitory whims of the prosecutor.  McPherson was drunk…

In New York, ‘creative’ prosecutors are proceeding under the theory that the defendant acted with depraved indifference to to human life. 


Read Scott’s post for why this is faulty legal reasoning. But how did we get to this point – that is, the point where the general public believes this is appropriate? Scott continues:


As has become so very popular, an appeal to emotion is hidden behind vague things that seem to make sense, provided one doesn’t let things like the law get in the way.  This has long been the push by advocacy groups such as MADD to create a growing public intolerance for drunk driving, and create the impression that ever-increasingly harsh charges and punishments are the only way to stop this plague. 

The problem is that these groups have been so successful, and politicians have basked in the reflected glow of this success, that when reality gets in the way of these PR campaigns (meaning when convictions for murder do nothing to stem the tide of drunk driving), they need to find yet a deeper, harsher, more horrific penalty to impose.  Yeah, if only they got the death penalty, that would fix the problem!

The reason why they are slaying imaginary dragons is that this is not the crime of murder.  It never was, and never will be.  Drinking too much and getting drunk is not something that one contemplates as part of a violent crime.  Driving home drunk, every stinking drunk, isn’t meant to cause harm.  It’s meant to get home. 


In Texas, prosecutors have a gone a different route. Here, where a 3rd DWI conviction is a felony in and of itself, prosecutors have taken to charging Intoxication Manslaughter defendants with Murder if the they have 2 prior misdemeanor convictions for DWI under the ‘felony murder’ rule.


The felony murder rule is a legal doctrine that removes the usual requirement of intent in a murder prosecution and simply holds a defendant responsible for murder if a death occurs while a felony is being committed. Hence in Texas, 2 prior DWIs + an intoxication manslaughter today = a murder prosecution tomorrow.


The problem with this theory is that it means the defendant’s prior convictions are actually what elevate the Intoxication Manslaughter charge to murder. In other words, the entering of the plea on the previous cases or the finding of guilt by the jury is actually an element of the offense of Murder itself.


That doesn’t make sense.


Right now, in Texas, DWI defendants charges with Intoxication Manslaughter face the possibility of a 20 year sentence – certainly that’s enough for an unintentional crime. But if it’s not then the Legislature should simply increase the penalty for that actual offense. Ambitious legal theories advanced by creative prosecutors – or is that creative legal theories advanced by ambitious prosecutors? – should not be the basis for a Murder charge.

Randy England has an excellent post that illustrates the dangers of applying “worst case scenario” thinking to every situation. But before we get to the article, let me put on my Modest Proposal hat to see whether I can rile you up and get your Tough-On-Crime legislative juices running…

#1) Misdemeanors are ‘just’ misdemeanors, but if someone keeps committing misdemeanors we ought to elevate the offense to a felony. After all, if you haven’t learned your lesson, you need harsher and harsher punishment. In some (perhaps all?) cases, the second time you commit a misdemeanor, it should be a felony.

#2) If someone dies during the commission of a felony, the charge should be elevated to murder. Yes, murder usually requires intent, but it should be foreseeable to all that committing a felony automatically puts everyone in jeopardy, so… felony + death = murder.

I don’t need to tell you that we already have these rules separately, and some of you can guess what will happen when we combine them.

I’ve blogged before about the (il)logical dangers of imprisoning people for life without proving any intent, and we see more and more stories in the news of Texans prosecuted for Felony Murder based on DWI. The state gets there by proving DWI + 2 prior convictions for DWI = felony, and felony + dead body = murder.

Yes, there’s already a more specific statute for Intoxication Manslaughter, whereby a defendant convicted of DWI that causes death can be punished up to 20 years in prison. But that’s not enough for the Life in Prison crowd. So, we came up with the legal fiction of misdemeanor DWI elevated to felony with priors + dead body = murder.

And, because no one has sympathy for defendants convicted of DWI, there is no general outcry about over punishment in these cases. So that leads to murder convictions in DWI cases, without any intent to kill.

But wait, couldn’t the same reasoning be applied to non-DWIs? Let’s get back to Randy’s post “Should driving while license suspended result in a felony-murder charge?

You may have heard of defendant Kevin Fisher in Kansas City who is charged with felony-murder because he was in an auto accident and his passenger was killed. No Drugs or alcohol were involved. The reason he is charged with murder is that he was driving on a suspended license, normally a misdemeanor–but in his case, a felony because of his prior criminal record…

Apparently in Missouri, DWLS can be elevated to a felony based on a defendant’s prior history. (In Texas, it ‘maxes out’ at a Class A misdemeanor – that is, ‘only’ a 1 year in jail maximum sentence.)

But as Randy points out, the law requires a causal connection between the ‘felony’ (or Driving While License Suspended, in this case) and the death. But the State has been known to stretch that pretty far sometimes:

If I rob a bank with a toy gun and the guard accidently shoots and kills a bystander while trying to stop me, I get charged with felony murder because someone was killed as a result of my felony.

But should the same apply if I try to forge a check at Breaktime and the clerk gets suspicious and calls the manager from the back room. On the way out the manager slips, breaks her neck and dies. All because of my forgery. Am I now to be tried a murderer?

What if they called the police and the officer runs over a baby on the way to investigate?

Worse still, many folks don’t know that their licenses are suspended in the first place. Couldn’t the state then proceed with murder charges, when the underlying misdemeanor itself is very questionable? Randy asks the same thing:

Some may argue that [the defendant] was a bad driver, so that puts him on a par with a drunk driver. But that is not necessarily so. One can be suspended for many reasons which have nothing to do with dangerous driving (e.g. failure to show proof of insurance or getting behind on child support).

Not only that, a person can drive while suspended without actually knowing that he is suspended. It is considered sufficient that you should have known you were suspended. That means [the defendant] can be guilty of murder on a standard of recklessness. Normally, a reckless killing would not be murder, but manslaughter.

I repeat: it is [illogical, unfair, senseless… you pick] to apply “worst case scenario” thinking to all defendants.

Because, when you do, you get a glorified traffic ticket, like DWLS, prosecuted as a Murder. And on its face, that has to be the wrong result.

There are 4 basic types of felony DWI in the Texas Penal Code.

The most common of these is probably DWI third, that is, a new DWI charge with two prior convictions. It used to be the law in Texas that if ten years passed from the date of the last DWI conviction, that the new charge was “only” a Class B Misdemeanor, and treated like a DWI first. Then the legislature made it 10 years from the date the person was released from confinement, or probation or parole. More recently, the ten year requirement was abolished, and any prior DWIs are usable for enhancement. This includes out of state DWIs.

The newest type of felony DWI charge is listed in the DWI Chapter of the Penal Code at Section 49.045, DWI with Child Passenger. This statute elevates even a first DWI charge to the level of State Jail Felony, if there is a child under 15 years old in the car. Very often, the State has the same problems proving intoxication that they would in a “regular” DWI charge. However, there are rarely substantive issues regarding the age of the passenger. No prior convictions are required for this to be indicted as a felony.

A third type of Felony DWI in Texas is Intoxication Assault. Section 49.07 is essentially a DWI, with the additional element that the defendant “by accident or mistake…and by reason of …intoxication causes serious bodily injury to another”. There are three basic defenses here: (1) the Defendant was not intoxicated, (2) the injury does not fall into the legal category of “serious bodily injury”, and (3) the intoxication did not cause the injury or accident. No prior convictions are required.

The fourth and final type of Felony DWI is Intoxication Manslaughter. Section 49.08 covers DWI is similar to 49.07, except that the intoxication causes death instead of serious bodily injury. Fortunately, this is the probably the least common type of DWI charge. Both Intoxication Assault and Manslaughter cases usually involve forced blood draws, and are therefore more difficult to defend than other cases. (Blood tests over .08, while not unassailable, are more reliable than breath tests from the intoxilyzer, at least in my opinion.)