If a person dies as a result of an accident involving a motor vehicle, the charge can be vehicular manslaughter, whether a DUI is involved or not. If a DUI is involved, then a Vehicular Manslaughter charge is almost certain. If the DUI driver has one or more prior DUI convictions, however, the charge is likely to be Second-Degree Murder. As of January 1, 2008, the charge may be Murder, even without prior convictions, (See the next section, below).
Even with no alcohol or drugs involved, a driver can be charged with some form of vehicular manslaughter if the driver is determined responsible for an accident that results in the death of another person. This includes a passenger in the driver‘s own vehicle. All that need be shown is that the driver was negligent to some degree or committed some traffic violation, and caused the accident that led to the death of the other party.
Vehicular Manslaughter can be charged as either a misdemeanor or a felony, depending on the level of negligence. If the level of negligence is highly elevated, the charge can be Gross Vehicular Manslaughter, which brings an elevated penalty above the simple version.
Over the years, I have seen many cases of Vehicular Manslaughter that should not have been brought. This is one of the most over-charged penal sections on the books. As a prosecutor, I saw that many other prosecutors had the belief that, "if somebody dies, somebody must pay for it", irrespective of whether the driver was truly blameworthy. Moreover, there is a corresponding belief among many prosecutors that a driver has an absolute duty to avoid an accident, irrespective of whether it is humanly possible to do so as a practical matter. Lastly, many prosecutors are afraid to refuse to file or resolve such cases because someone died, particularly if family members of the deceased are calling for blood, however irrational it may be in a case.
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