A Tucson woman has been arrested in connection with a fatal collision last week involving a bicyclist. Police say a man was traveling in the bike lane when he was struck from behind and killed by the suspect’s vehicle. According to an eyewitness, the woman left the scene after the crash.
The witness apparently followed the car, and it was later discovered by police at an apartment complex in the area. The suspect, who lives in that complex, was then arrested. Police say she showed signs of intoxication, and she has been charged with second degree murder and leaving the scene of an accident. These are obviously very serious charges. The murder count is a class 1 felony. In addition, hit and run involving a death is also a felony.
You may wonder why the woman was charged with second degree murder, rather than a less serious charge such as negligent homicide or manslaughter. In order to understand the likely reason, we should first review the three homicide charges:
- Negligence. Negligent homicide requires, as the name implies, proof of criminal negligence. The essence of criminal negligence is the failure to perceive a known risk, where the failure is a “gross deviation” from the standard of care that would be expected of a reasonable person. It is a class 4 felony.
- Manslaughter. In order to prove a charge of manslaughter in the context of a DUI case, the prosecution must demonstrate that the defendant acted “recklessly.” This includes awareness and conscious disregard of a serious (substantial and unjustifiable) risk, where the disregard is a gross deviation from the standard of conduct that a reasonable person would exercise. The law states specifically that where a person is unaware of such a risk due to voluntary intoxication, the act can nevertheless be reckless. Manslaughter is a class 2 felony.
- Second degree murder. This offense can involve reckless causing death under circumstances demonstrating an extreme indifference to life. It is a class 1 felony.
Note that none of the homicide offenses listed above requires proof of premeditation. And the differences among them relate to a suspect’s state of mind, the proof of which is usually gleaned from surrounding circumstances. As a result, there is a fair amount of prosecutorial discretion involved in determining whether to charge a suspect with second degree murder in a DUI case. While the details in the present case are not currently available, as a general matter, the more serious charge is often reserved for cases involving extreme DUI, or super extreme DUI.
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