We are asked from time to time about defending Watson Murder cases that arise out of a DUI accident. While thankfully rare, these are among the most difficult kinds of cases to defend, principally because the defendant who finds himself involved in the traffic fatality never intended to hurt the deceased person.

The theory of criminal liability in these cases arises from the case of People v. Watson which was a 1981 California Supreme Court ruling that gave prosecutors the green light to charge second-degree murder in certain DUI accidents where someone was killed.

In a nutshell, the District Attorney’s burden of proof in all murder cases involves the need to prove “malice aforethought” as an essential element of murder. The “malice” element is a somewhat antiquated legal concept, but it embraces the mental state required for murder to be proven. “Malice” comes in two forms, “express” malice and “implied” malice. “Express” malice is easy to understand. It’s manifested when the defendant demonstrates a clear and deliberate intent to take away the life of another person. An easy example is where the defendant loads a gun with bullets, walks up to the victim, and shoots the victim in the chest over and over while yelling, “Die, you son of a bitch!” This defendant has demonstrated express malice.

Implied malice is trickier and more difficult to understand, but in a nutshell, it’s to be found where the defendant engages in activity that he knows is likely to lead to a death, and does the act heedless of the consequences. This is why Watson murder prosecutions typically are found in cases where the defendant has suffered one or more previous DUI convictions. The “implied malice” theory is that the defendant took DUI classes as part of his sentence obligations in the earlier cases, and those classes uniformly teach the students that driving while impaired can easily lead to serious injury or death.

You might think that “everybody knows this already” and while that’s very likely true, the DA on a Watson Murder case now has the ability to put on evidence that the charged defendant actually took classes where he was warned about the lethal dangers of impaired driving. It’s not uncommon in Watson Murder prosecutions for the DA to call as a witness the very same instructor who taught those classes, in an effort to prove to the new jury that the charged defendant absolutely, positively knew that he might kill someone if he drove drunk in the future.

Also, it is now mandatory for judges and prosecutors to give a so-called “Watson warning” on every DUI case, even the garden variety cases. In the Watson warning, the judge admonishes the defendant when passing sentence about the grave dangers of impaired driving, and of course, the court reporter is taking down every word. This way, if that same defendant later kills someone while driving impaired, the DA can point to the transcript of the earlier case to show that the defendant was on actual notice that he could be charged with murder in a future case if he continued to drink and drive.