Ron Freitas
District Attorney
OFFICE OF THE DISTRICT ATTORNEY 222 E. Weber Ave., Room 101, Stockton, CA
P. O. Box 990, Stockton, CA 95201
T (209) 468-2400 | F (209) 465-0371
TORI VERBER SALAZAR District Attorney Kristine M. Reed Assistant District Attorney James Bojko Chief Investigator
News from the Office of District Attorney Tori Verber Salazar
For Immediate Release
January 29, 2019
CONTACT: Office of Public Engagement, SJCDA
T: 209-468-2400 | E:

A Vehicular Homicide Primer

SAN JOAQUIN COUNTY- In the past several weeks there have been several vehicular homicide cases charged by the San Joaquin County District Attorney's Office. Several of these cases have been reported in the press and have generated many comments on various social media platforms. In an effort to clarify several of the issues involved in vehicular homicide cases, the SJCDA presents this overview on some of the common elements involved in these types of cases.

Caveat: Every case is different and the information presented here is only a broad and general statement. In any particular case, the evidence presented to jurors is unique to that case. In each trial, the judge will craft the law to fit those particular facts for the jurors to use in their deliberations.

A vehicular homicide is a fatality involving a collision of a motor vehicle that proximately results in the death of another human being. Typically, in a vehicular homicide case, there will be law enforcement witnesses who investigated the collision, civilian witnesses who might have witnessed the collision or something that preceded it, and, several expert witnesses who will testify about a set of particular facts before the judge and jury.

Here is a summary of some of those experts who might testify:

  • Accident Scene Reconstruction Expert: Typically, a law-enforcement Accident Reconstruction expert will explain the mechanics of the collision based on the facts presented to the jury. That expert is usually trained in the mathematics, physics and, sometimes, kinesiology of traffic collisions. There are privately retained experts who also might testify.
  • Phlebotomist: When blood is drawn, it is done by a phlebotomist who has been trained to draw blood from a person. Typically this is done at a hospital since the phlebotomist is usually a private medical practitioner. A driver must submit to a blood alcohol test. In normal circumstances, they may chose between a blood and a breath test. Phlebotomists do not administer the breath test. Breath tests, given by law enforcement, only requires certification that the machine was in good working order according to state regulations.
  • Criminalist. When blood alcohol content (BAC) is tested, a trained criminalist will testify to the testing, the results, and the meaning of the results. This can include testifying about "retrograde extrapolation". Retrograde extrapolation uses an established process to determine what a person's BAC was at the time they were believed to be driving relative to the time they performed a BAC test. A criminalist might also testify to the presence of drugs in the driver's system and its impact on the person's level of intoxication.
  • Forensic Pathologist. A trained pathologist will testify to the cause of death. Typically, the cause of death is labeled as "blunt force trauma". A forensic pathologist can explain the cause the death and, depending on the presented facts and their qualifications, the circumstances surrounding the death.

After all the evidence has been presented, including expert witness testimony, the jury will be instructed on the law by the judge. Those instructions will involve a variety of legal principles and the definition of the crime, the words to define the crime, and what is known as "proximate result" or "proximate cause".

Proximate cause is an act that is a "substantial factor" that produced foreseeable consequences without intervention or fault from anyone else. It must be proved beyond a reasonable doubt that the collision and fatality were the direct, natural, and probable consequence of that act.

Vehicular homicide cases are charged differently depending on the circumstances. These charges range as follows:

  • Murder in the second degree, a felony (Penal Code § 188 (a)(2).) This is known as a "Watson" murder, named after a 1981 California Supreme Court case. A "Watson" murder alleges that the driver acted with "implied malice" when they proximately caused the collision and fatality. In essence, "implied malice" is proven by showing a subjective "conscious disregard for life." The sentence for this crime is fifteen years to life in state prison.
  • Gross vehicular manslaughter while intoxicated, felony (Penal Code § 191.5 (a).) This crime requires a showing of intoxication, gross negligence, and proximate cause. Gross negligence is conduct that is less than "implied malice" but greater than ordinary negligence. The sentence for this crime is either 4, 6, or 10 years in state prison.
  • Vehicular manslaughter while intoxicated without gross negligence, a felony (Penal Code § 191.5 (b).) This crime requires a showing of intoxication, ordinary negligence, and proximate cause. The sentence for this crime is either 16 months, 2 years, or 4 years in state prison. This crime may be charged as a misdemeanor and with a maximum of one year in the county jail.
  • Gross vehicular manslaughter without intoxication, a felony (Penal Code § 192 (c)(1).) This crime requires a showing of gross negligence, and proximate cause. The sentence for this crime is either 2, 4, or 6 years in state prison. This crime may be charged as a misdemeanor and with a maximum of one year in the county jail.
  • Vehicular manslaughter without intoxication or gross negligence, a misdemeanor (Penal Code § 192(c)(2).) This crime requires a showing of ordinary negligence and proximate cause. The sentence for this crime is a maximum of one year in the county jail.

At times, there are associated related charges like driving under the influence causing great bodily injury, reckless driving causing great bodily injury or death, hit and run, and simple driving under the influence or driving with a BAC 0.08 or above. In addition, there are sentencing enhancements that can increase a sentence depending on the driver's prior criminal convictions.

It bears repeating, that all persons charged are presumed innocent until the facts have been presented to a jury. The jury will have the benefit of hearing all the witnesses on both direct and cross-examination; arguments by the prosecution and the defense concerning the facts and the application of law to those facts; legal instructions tailored to the facts and given by the judge; and a deliberation process where all twelve jurors may examine and discuss their position about the facts. It is only after this process that a jury may determine if a criminal charge has been proven beyond a reasonable doubt and the defendant is guilty.