Earlier this month, an Atoka man was charged with first degree manslaughter for causing a DUI accident in 2015 that killed a passenger in his vehicle. Just two days later, a man in Logan County was charged with second degree murder for causing a fatal DUI accident in 2015. Two fatal DUI accidents, but two separate charges. How do Oklahoma district attorneys determine whether to charge someone with manslaughter or murder for causing a DUI fatality?

The answer lies in whether the crime resulting in death--DUI--is a misdemeanor or a felony. In general, a first DUI offense is a misdemeanor, and a second or subsequent DUI conviction is a felony. The distinction between a misdemeanor or felony charge resulting in manslaughter or murder charges lies not in Oklahoma DUI law, but in state homicide laws.

First degree murder is defined in 21 O.S. § 701.7 as a premeditated, intentional killing with "malice aforethought" or when a death occurs under one of the following conditions:

  • during or as a result of the commission of a specified violent crime (murder or attempted murder, forcible rape, armed robbery, kidnapping, escaping from custody, eluding, first degree burglary, first degree arson, drug distribution, drug trafficking, drug manufacture, etc.)
  • when a child dies as a result of abuse; child abuse murder
  • soliciting a death in furtherance of a drug crime
  • intentionally causing the death of a law enforcement officer or corrections employee in the furtherance of his or her duties

Causing a fatal DUI accident does not fall under the scope of first degree murder; however, if the impaired driver has a prior DUI under his or her belt, then he or she will be charged with second degree murder for causing a death in the commission of a felony.

According to 21 O.S. § 701.8, second degree murder occurs under one of the two following conditions:

  • When perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; or
  • When perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out [in the definition of first degree murder]

Because a second DUI offense is a felony, then a death that results from the commission of that act--a DUI fatality--would be charged as second degree murder. Second degree murder is punishable by 10 years to life in prison.

First degree manslaughter is an unintentional death defined by state law as a homicide that occurs under one of the following circumstances:

  • When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
  • When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
  • When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.

Because a first offense of DUI is a misdemeanor, a fatal DUI accident under this circumstance would be charged as first degree manslaughter. First degree manslaughter is punishable by a minimum of four years in prison.

Image credit: Sam Greenhalgh