Vehicular Manslaughter while Intoxicated -California Penal Code  191.5


Driving under the influence is a serious crime in California. However, when a driver who is under the influence causes the death of another person – be it another driver, a pedestrian, or a passenger – he or she will be subject to far more severe consequences under California Penal Code 191.5 PC.

Under California Penal Code 191.5 PC, there are two types of charges you may face for vehicular manslaughter while intoxicated:

  1. Vehicular manslaughter while intoxicated with gross negligence – PC 191.5(a)
  1. Vehicular manslaughter while intoxicated with ordinary negligence – PC 191.5(b)


Prosecuting the Charge of Vehicular Manslaughter While Intoxicated

vehicular manslaughter while intoxicated
Vehicular manslaughter while intoxicated is a serious crime in California

PC 191.5 is complex in that there are several elements that the prosecution must prove to secure a conviction. The essential elements are these:

  1. The person drove a vehicle under the influence of alcohol;
  2. While driving, he or she committed eithervehicular a misdemeanor or infraction, or committed an otherwise lawful act that could result in the death of another;
  3. The other act was committed with either ordinary negligence or gross negligence; AND
  4. As a result of the above, another person is killed.


The elements are probably best explained by providing an example. Suppose that the driver and his co-workers decide to take advantage of the happy hour specials at the restaurant near their office. He has a few drinks, and while he does not feel drunk, he has enough drinks to send his blood alcohol level over 0.08%. A co-worker has even more drinks and is in no condition to drive, and so the driver offers to give his co-worker a lift home. While driving, he decides to send a text message on his phone, unaware that he is approaching a red light at a busy intersection. He goes through the intersection, and hits another car as it crosses his path. The co-worker dies as a result of the crash.

Here, our driver was under the influence of alcohol when he drove. He committed an infraction of California Vehicle Code 23123.5 when he composed his text message while driving. As a result of doing so, he was distracted while driving, causing the accident that killed his co-worker. Under these facts, the driver could be charged with vehicular manslaughter while intoxicated.

The third element concerning ordinary or gross negligence is important because it determines the level of punishment the driver can receive. Ordinary negligence is a familiar concept, and is generally characterized by simple carelessness, such as changing lanes without looking. Gross negligence is a more extreme level of carelessness, and is characterized by:

  1. The person acting in a reckless manner that creates a high risk of death or serious injury; AND
  2. A reasonable person would have known that acting in that matter would create that risk.


To prove gross negligence, the prosecution can use evidence of a high level of intoxication or that the defendant drove in a highly reckless manner. In the example above, the driver could be said to be grossly negligent because texting while approaching a busy intersection creates a high risk of death or serious injury, and a reasonable person in his position would have known that he was creating that risk. Therefore, he could be facing a very serious punishment if convicted.

Punishments for Violating California Penal Code 191.5

sentencing for vehicular manslaughter while intoxicated
The severity of the punishment for committing this crime depends on whether the prosecution can make a case for gross negligence, which is charged under PC 191.5(a).

As stated above, the severity of the punishment for committing this crime depends on whether the prosecution can make a case for gross negligence, which is charged under PC 191.5(a). Gross vehicular manslaughter while intoxicated is a felony, and if convicted, a defendant faces a sentence of four, six or 10 years in state prison.

If only ordinary negligence was present, the case will be tried under PC 191.5(b), and can be charged as either a misdemeanor or felony. If convicted of a felony with ordinary negligence, the defendant can be sentenced to 16 months, two, or four years in county jail. As a misdemeanor, the crime carries a punishment of up to one year in county jail.

In addition to prison or jail time, a conviction for vehicular manslaughter while intoxicated also carries the penalty of mandatory revocation of the defendant’s driver’s license, if the crime was charged as felony, but regardless of whether it was charged has having been committed with gross or ordinary negligence.

Defenses to PC 191.5 Charges

Intoxication Not Proven

The prosecution has a difficult hurdle to overcome in that there are many ways to challenge the validity of the intoxication claim, and so many of the defenses available in a DUI case are available here. For example:

  • The officer may have mistaken any number of symptoms as signs of intoxication, such as fatigue or illness;
  • The breath or blood samples may have been obtained in violation of the defendant’s rights; or
  • The instruments used to measure the breath or blood samples were mishandled, or not properly calibrated.

Sudden Emergency

If the accident was the result of the driver having to react to a sudden emergency, he or she may be able to avoid a conviction under PC 191.5. For example, suppose a driver had a few drinks before heading home. On the way, he runs over a sharp object, causing his tire to pop, and the car veers uncontrollably across the road. Trying to control the car, the driver decides to steer towards the side of the road to avoid other cars, but doesn’t see the man on his bicycle who just made a right turn on to the street. The driver strikes the cyclist and kills him.

defenses to vehicular mansalughter while intoxicated charges
There are several defenses that a skilled criminal defense attorney can raise on your behalf.

The statute only requires that a driver use the same ordinary care and judgment that any other ordinary driver would, which means that if an ordinary driver were to make the same decisions that the defendant did, he or she was not acting with negligence. In this case, the driver would likely be found to have used the same level of care that any other driver who had suddenly lost a tire would have in trying to get his or her vehicle to the side of the road as quickly as possible to avoid other vehicles.

Frequently Asked Questions

  1. If I was using a legally prescribed medication, am I considered to be under the influence?

It depends. Regardless of whether the prescription was legal and being taken as prescribed, if the drugs in your system impaired your ability to drive a vehicle in a reasonable and ordinary manner, then you may be considered to have driven under the influence of a drug.

  1. Can vehicular manslaughter while intoxicated be reduced to another crime?

Yes. Generally, a prosecutor would much rather convict a defendant of a lesser crime than no crime at all. With this particular offense, a reduction usually occurs because the prosecution cannot prove the element of intoxication. In those cases, the prosecution may drop the intoxication allegation and push for ordinary vehicular manslaughter under Penal Code 192.

  1. Is driving while intoxicated enough to prove gross negligence?

No. During a trial, the judge will instruct the jury that “[t]he combination of driving a vehicle while under the influence of an alcoholic beverage and/or a drug and violating a traffic law is not enough by itself to establish gross negligence. In evaluating whether the defendant acted with gross negligence, consider the level of the defendant’s intoxication, if any; the way the defendant drove; and any other relevant aspects of the defendant’s conduct.”1

This means that the jury must evaluate all of the circumstances in your case, and could find that even driving under the influence and the violation of a traffic law were not enough to convict you of vehicular manslaughter while intoxicated with gross negligence.

Contact the Attorneys at Wallin & Klarich For Help

partners 2015 - vehicular manslaughter while intoxicated attorneys
Contact the experienced criminal defense attorneys at Wallin & Klarich today if you have been charged with vehicular manslaughter while intoxicated

A charge of vehicular manslaughter while intoxicated carries the possibility of serious, life-changing consequences. If you are facing an allegation that you committed this crime, you will need the help of an experienced and skilled attorney. Wallin & Klarich has been successfully defending those charged with vehicular manslaughter while intoxicated for over 30 years. Contact us today for a free, no obligation consultation.

With offices in Orange County, Los Angeles, San Bernardino, Riverside, Ventura, Victorville, West Covina, San Diego, Torrance and Sherman Oaks, there is a Wallin & Klarich attorney experienced near you, no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.

1. CALCRIM No. 590. Gross Vehicular Manslaughter While Intoxicated (Pen. Code, § 191.5(a)).

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