Sometimes a case must be prepared for trial to get a good plea. To have an impact and to get good bargaining position you have to show the other side that you are prepared or are preparing for battle. This additional work is all the more important if you are planning on taking your case to trial regardless of any plea offers. You should ask the following:

1. The first thing you must decide for a trial is what are the legal defenses to the charges. Did someone else do the crime or is the eyewitness mistaken about what they saw? Even if I did something is the prosecution wrong about what was in my mind? What is our defense? What evidence can we develop to help prove our defense? Even though it is the job of the prosecution to “prove” the case, the more your team can do to “disprove” the case the better your chances are for a good verdict.

2. What is your strategy about preparing the defense? What investigation is needed? What expert witnesses are needed to help analyze our case? How much is that going to cost? What is the timetable for getting the defense ready? When do you think our trial will actually happen?

3. Make sure you give your lawyer straight information so he/she doesn’t go off on a theory that is hair brained or false. Give him as many witnesses you can think of that support your defense or support your good character. After a reasonable period of time ask him about his progress. Did you talk to the witnesses yet? What did they say? How do you feel about our case now?

4. As you get closer to trial make sure your lawyer has followed through on all of the ideas about investigation and experts that you discussed earlier. Have you subpoenaed all of the documents that we need? What more records do you need? Have you hired and consulted with the experts? How is our investigation coming along? Exactly what has the investigator done? What does the investigator still need to do?

5. One way to get comfortable with your lawyer and the state of your lawyer’s preparation is to ask him/her to tell you what the case is all about. If he can explain it to you in a convincing way then you know that he “gets it.” If the lawyer can’t explain it to you then you may have a problem.

6. You need to be prepared to spend considerable time with your lawyer preparing for trial and preparing for the possibility that you will testify. Am I going to take the witness stand? Will you prepare me for all questions including cross-examination?

At some point you must trust your lawyer to do the job preparing for and trying your case. Once you have developed that trust it is important to listen to what he/she says and follow their instructions. This is an area they know better than anyone and if you got yourself a good trial lawyer they are guided by their own instincts and motivation to win on your behalf.

William F. Nimmo is a well known criminal defense lawyer based out of San Diego whose firm handles violent crime and sexual assault cases throughout Southern California. Bill Nimmo was awarded the trial lawyer of the year award by the San Diego Criminal Defense Bar Association and in 2008 and 2010 was given a Top Criminal Attorney award by San Diego’s legal newspaper.

If you have been charged with “Shaken Baby Syndrome” (SBS) or “non-accidental head injury to a child,” there are several things that you can do to help your attorney prepare your case. The most important thing you must remember is this: do not talk to anyone about your case without your attorney’s permission. Do not contact experts, do not talk to people on the web, by phone or by email, without clearing it with your attorney first. The second thing you must remember is that this is a long process; it takes a lot of time to learn the medical literature and secure experts to review your case. The more that you can do to help your attorney prepare your case, the better advantage you will have at trial. What follows are three things you can do to help prepare your case for trial.

Step 1. Collect all of the baby’s medical records since birth. If you are the child’s parent, or the child’s parent is supportive of your innocence, you can sign a “release of medical records” form to obtain all past and present medical records of the child. If you are not the parent, if your parenting rights have been terminated, or if the parents of the child are not supportive of your innocence, your attorney will have to subpoena the medical records from each medical facility the child has visited. Do not trust the prosecution to turn over all of the medical records on its own: they will often cherry pick only records that tend to bolster their case. The following is a list of records your attorney will need to obtain before experts can review your case:

• Prenatal records (will be listed under the mother’s name)
• Birth records (under both mother’s and child’s names)
• Well-baby check-ups and all previous doctor visits
• Vaccination records
• Medical records of siblings
• Daycare records
• Paramedic records
• ER records for day of collapse
• CT Scans, Bone Scans, MRI’s, X-Rays, Retinal Camera Photos
• Progress and follow up records—(if the baby lived)
• Autopsy (if the baby died)
• Pathology or neuropathology repots and slides (if applicable)

Step 2. Create a timeline of the child’s medical history. Subdural hematomas cannot be dated accurately. Instead, we tend to think of them in windows of time. An acute subdural is defined as 1-72 hours old, a subacute is 3-10 days old, and a chronic is anything older than 10 days. An accurate timeline of the child’s falls, hospital visits, vaccinations, symptoms, and any peculiar behaviors may help your expert time the bleeds or identify their origin.
Here are some questions that may be important to a child’s medical history:

1. Was the pregnancy difficult?
2. Was the baby’s birth premature?
3. Was childbirth complicated?
4. Were there any short falls or impacts to the head at any time since birth?
   • If so, when?
   • Who was with the child at the time of the fall?
   • Did the child see a doctor?
5. What did the head circumferences look like? Review the medical records and chart out height, weight and head circumference from birth. The most accurate percentile calculators on the web calculate specifically for gender and number of days old.
   • Has the head circumference jumped percentile lines?
   • Is head circumference disproportionate to weight and/or height?
6. Has the child shown any of the following signs of increase intracranial pressure since birth (particularly in the last 3 days
   before his or her hospitalization):
   • Lethargy?
   • Vomiting? (projectile?)
   • Reduced feedings?
   • Inconsolable crying or unusual sounding cries?
   • Positional discomfort? (preferring to be seated in a swing or carrier, crying when layed down etc.)
   • Seizures?
7. Was anyone else with the baby, unsupervised, for the last three days?
8. Did the parents call or visit the doctor in the last 3 days?

Step 3. Get Informed About the Science. Though it is a good idea to do some medical research on the web, be careful to use only peer-reviewed journals and Academy statements when providing your family or your attorney with research for trial. There are websites with annotated bibliographies of the most authoritative articles in the areas of childhood head injuries. Try www.SBSDefense.com for a list or articles and strategies for defending against false accusations of non-accidental trauma.

In theory that is a beautiful design! In reality it is very fragile and depends on a population of juries that enthusiastically abide by those principles. A jury must be of the mind to know that it is better to let a guilty person go free than to risk convicting someone who is innocent. This is a tough job to assign to normal jurors, especially in this modern world. The general public (from which jury pools are drawn) is so polluted by news media about crime and right-wing ideas that it seems rare to get the proper cynical viewpoint to follow these standards of proof. And cases take so long that it is hard to get the kind of jurors you need to spend a couple or three weeks to hear a properly presented case. If you have a “reasonable doubt case” you want intelligent jurors to hear that case.

Once you eliminate all of those who could not survive for three weeks if they had to leave their jobs and families, what you are left with is highly questionable. In some ways the jury trial is a dinosaur and only affordable for the rich. And even the rich cannot force the system to have jurors that are highly functional. They can, however, afford lawyers who can devote more time, hire more experts, and fund other things that may give an edge to the defense.

Given all this, the question of taking the stand seems more important. It is still an individual decision and it should be a decision discussed thoroughly, pros and cons, with your lawyer. I would not avoid the stand if it were just the fact that I had a criminal record. A good lawyer can diffuse that and, properly handled by the defendant, can really be a non-factor, or a least a lesser factor. If that happens you need to own up to your past, answer the questions candidly, and move past it. Realistically, juries do not necessarily think you are perfect and the more candid or truthful you are about being imperfect, the more that can help you.

One thing to always consider is the question of whether you need to take the stand to explain things that just cannot be explained without you telling them. An example is a situation where you were there and involved, but you had no idea that anything was going to happen. How is the jury going to know what was or was not in your mind? For instance, if you were the driver of a vehicle and one of the people in the vehicle unexpectedly pulled out a gun and shot at someone. How would the jury ever know you had no idea what was going to happen unless you explain it to them? Juries can understand an explanation, but sometimes you have to “man up” and give it to them. This is always a question you should decide ONLY after you and your attorney thoroughly discuss the issue. Some attorneys feel more comfortable without the defendant taking the stand, while others feel more comfortable when the defendant takes the stand to explain. There is no uniform rule; it has to be decided individually in each case. Again, this is only an article designed for thought and discussion. YOU need to talk to your lawyer!

While they say the recession is over, the fact is common people are still unemployed and losing their jobs. Even if they get their jobs back it will take months, if not years, to regain savings or credit so they can afford even small extras in life.

This is impacting people charged with smaller crimes and well as larger crimes. Families of those with smaller cases are saying, “Just let the public defender handle it.” Families of those defendants with larger cases just do not have the money to put up a good defense. Public defender and conflict panel attorneys are being swamped with cases and are overloaded. Courts are not approving costs for experts and investigation like they used to, and private lawyers are not taking small payments. Those private lawyers see that people are not making payments and so the private lawyers have changed their policies.

Unfortunately, the laws are not getting easier and the prosecutors are not giving better deals. This economy helps them because the defense is weakened but the prosecution is not. And the legislature keeps enacting tougher laws.

When will this end, you probably ask? Realistically it is hard to tell! The economy seems to be stopped from declining but the effects are still there and will probably only slowly improve. For you facing major prison sentences this is probably not encouraging. I wish more encouraging things could be said. This is a time where your families need to make sacrifices and understand that once a person is convicted it is hard to reverse, and there could be a long road to freedom. If you can hire private counsel, be especially selective and interview them carefully. Remember, careful judgment is critical. Rash impulses could result in throwing away what money your family has and could result in an ineffective defense. A lot of lawyers are full of stories of victory and promises of great things, but few of them actually live up to those results and those promises.

Good Luck!!!

A lot of times you can show a witness is wrong by physical evidence or circumstances that cast doubt on their accuracy. You may be able to show that their positioning makes it impossible for them to have seen what they claim. Or you may be able to show that the lighting was such that they could not have seen what they claim. Eyewitnesses are frequently wrong and a good lawyer searches the situation for physical proof or physical circumstances that prove that they are most likely wrong. A witness like that can be impeached gently. You don’t have to accuse them of being a liar, you just have to show them to be wrong. Sometimes when presented with the proof they will cave in and admit they could be wrong.

Sometimes you need to bring in an eyewitness expert to talk about the psychological phenomenon and the physical situation to demonstrate to the jury how witnesses tend to get things wrong. Witnesses want to be helpful and that bias causes them to exaggerate their certainty and makes them resistant to admitting that they just don’t know what they claimed to have known. These eyewitness experts are usually psychologists who specialize in the social science research of human factors, such as lighting and vision, and the psychological factors that go into witness observations.

More difficult to cross examine is the witness where there is no physical evidence or psychological phenomenon to contradict. They simply are accusing you of doing something and it is their word against yours. They may have a grudge against you, they may just not like you, or they may just be nasty humans. In any event you have to impeach them or you will be convicted.

The first thing to do is figure out what their motive is to lie. But once you do that you still have to attack. One of the best ways to impeach a witness like this is to impeach they with prior inconsistent statements. In many cases a witness will give two or three statements to the police or other agencies. Nowadays most of these statements are tape recorded, either by video or audio or both. A lot of times the initial statement to the police will not be recorded but by the time social services or the detective interviews them they will be recorded.

The first thing you do is to get every statement possible. In a sexual assault case make sure your lawyer gets the medical report from the sexual assault response team. That report always has statements made by the alleged victim and many times they are different than what they tell the detectives later. Later on you can add the preliminary hearing to that list of times they have given a statement.

Second you need to have all of the statements transcribed. Once you have a written transcription of all of the statements you will have the tools to impeach them with inconsistencies in their statements. This is where the lawyer, and the client, should go over the statements several times and compare what they said on each topic. If your alleged victim is not telling the truth I guarantee you things will be different. Sometimes the differences are subtle and sometimes they are huge.

If your lawyer is good they will be able to catch the witness in some unexplainable inconsistencies. Once a witness has been caught and they realize it they lose confidence and will likely show behavior that will cause a jury to wonder why they couldn’t keep the story straight.

You can help your lawyer by reading the various accounts carefully and pointing out the inconsistencies by page and line. Sometimes your lawyer won’t agree that what you have found is significant but your lawyer will appreciate the help.

Whether your attorney is trying to get the best “deal” or win your case at trial, casting doubt on the credibility of the cop(s) involved in the case can become important to your defense. Broadly, there are two ways to go about casting doubt on the cops’ credibility. First, you can directly assert that the cop(s) knowingly engaged in deceitful or wrongful behavior contributing to your charge(s) (for example, planting evidence, lying, excessive force, sexual harassment, racist or sexist behavior). Second, you can assert that the cop(s) conducted a “sloppy investigation” (purposeful or through ignorance) contributing to a reasonable doubt. In some cases, you may be asserting some combination of these two.

This article addresses the first broad challenge to the cops’ credibility, which is directly asserting deceitful or wrongful behavior contributing to your charges. For a discussion of utilizing “sloppy investigation” as part of establishing reasonable doubt, read my companion article “Sloppy Investigation: A Defense Lawyer’s Dream.”

Cops directly engaging in deceitful or wrongful conduct contributing to your charges can take various forms. They may plant evidence, they may fabricate evidence such as informant information, what they actually saw or about statements you made to them, they can beat you down and arrest you for resisting, they may act totally racist or sexist towards you and arrest you when you don’t put up with it or they can sexually harass you and arrest you when you rebuff their advances.

Importantly, you may not be the only person the involved cop(s) has/have done this to. If the prosecutor won’t deal to your satisfaction or your case appears headed for trial and you believe the cop(s) may have engaged in deceitful or wrongful conduct, you and your attorney should consider a Pitchess and related motions to have a Court review the involved officer’s personnel file to see whether others have made similar complaints or there have been disciplinary actions for similar conduct in the past. The presence of such similar complaints or related actions in the officer’s personnel file may not only change the complexion of your case in the eyes of the prosecutor but may well be admissible at trial under, among other bases, Evidence Code § 1101(b) to show the officer’s motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident – in your case.

Depending on whether your issue is officer excessive force, officer statement coercion, an illegal search, false arrest or other misconduct will govern just which motion you will file. Your attorney will either be familiar with these or will research which motion is appropriate. Some of the names you may hear is a Memro motion, a Pierre C. motion, a Pitchess motion or some combination thereof. Each of these motions is governed by the type of law enforcement misconduct you are alleging in your case.

If a judge feels your declaration supports disclosure they will typically review the officer’s personnel file to determine if any information exists that would be disclosable to a defendant. Typically if complaints exist you are not entitled to all of the reports but you are entitled to date, place, nature of the complaint, all witness information, result of the investigation, and any discipline that may have been imposed. However, some judges feel that you’re only initially limited to the name of the prior complainant against the officer and the contact information for that complainant reflected in the file. In such a circumstance, you must have an investigator attempt to contact the prior complainant and interview them about their experience with the officer. Only once that is done will the court entertain a follow-up motion for disclosure of more information. Although this limited route almost ensures your attorney must engage in follow-up motion work, I personally don’t mind it because the more work I do in a case the more work others must do and it is always important to actually interview the prior complainant(s) because they can make powerful witnesses against the cop(s) at trial.

In all, these motions take a lot of effort on the part of your attorney, but in the right case they can be very productive and result in major evidence against a law enforcement officer who typically might carry a lot of power with a jury. Depending on where you are officers can be viewed as unassailable by juries and you need everything you can get to show that they are not telling the truth or they used excessive force and caused you t have the right to respond.

If you are involved in a criminal case you should monitor your lawyers progress. It is important to see not only if your lawyer is doing their job but also it is important for you to be involved in your case. An informed client makes better decisions about their life and their future! If you find that your lawyer is not doing his/her job, knowing this will help you prod them into action or give you motivation to seek other counsel.

In the early stages of your case it is important to gather information and develop a case strategy. You should ask the following questions:

1. Have you gotten all of the police reports, audio and videotapes of witness statements, and other “discovery” from the district attorney’s office?
2. After insuring that the attorney has reviewed everything ask him how the evidence looks? What is the bad evidence? What are the weak spots in their case? Do we need to do any investigation to clear up or develop evidence that would help?
3. After you have a clear understanding of the case against you ask the attorney what he advises you do? Should I plead? Should I go to trial? Should I go to preliminary hearing? Why?
4. Once you have determined your general goal ask your attorney what his strategy is for attaining that goal. When does he expect to make a deal? Is there anything needed to be done before that date to help make the deal happen?
5. Sometimes the preliminary hearing is a good place to air out the evidence and show the prosecution that their case is weaker than they think. Are we going to do that? Is it better to waive prelim so the record won’t show how bad the facts are for us?
6. Sometimes the deals are better before the prelim and sometimes the deals are better after the prelim. This can be a factor of which judge will preside over the different settlement conferences. Where does your attorney recommend that you plead and why?
7. If you decide to plea, ask your attorney what his goal is for your sentencing. Am I going to have a psychological evaluation? Are you going to need letters from friends and employers? What can I do to help you get ready for sentencing?
8. Ask your lawyer what sentencing alternatives are available. Can I get work furlough? Can I do community service? Do you think the judge would consider a drug rehabilitation program?
9. Once you plead you will be interviewed by the probation officer. Ask your attorney how you should handle the interview with the probation officer. Should you discuss the facts of the case with him? Is there anything about my life that you think I should tell him? What kind of attitude show I have when I interview with him? What should I wear? How are my hair and my general appearance?
10. If you go to a sentencing hearing, ask your attorney what his plan is for the hearing. What is the judge like who is going to sentence me? Are you going to submit a written sentencing memorandum? Are you going to call any witnesses? Why or why not? Who does he want to have present? Does he want me to speak? What should I say?

No one doubts that combat veterans serving in Iraq and Afghanistan, touched by the horrors of war and returning home, are forever changed. Some will cope, but a large percentage are suffering from post-traumatic stress disorder, or related psychological problems. In addition, there are still thousands of Vietnam and Desert Storm veterans who are struggling with combat-related issues. Regrettably, many of them are, and will, come into contact with law enforcement. Our society put them in harm’s way, and it shares responsibility for their damage in our service. Parades, flag-waving and patriotic slogans are great, but we owe them far more than that. They have earned a level of consideration that is commensurate with their sacrifice. This is not giving special treatment; it is recognizing how special their service has been.

Penal Code Section 1170.9, signed into law in 2007, recognizes that sacrifice and accepts that responsibility. It is the first, but not the only, Alternative Sentencing Program in the nation for War on Terror Veterans suffering from post traumatic stress disorder (PTSD). Depending on the nature of the offense, and wherever possible, Penal Code Section 1170.9 gives judges the discretion to apply what some refer to as “problem-solving justice” in framing remedies. Punishment where appropriate, but not for punishment’s sake, and avoid unnecessary harm if possible.

This section is still so new that very few defense attorneys, prosecutors, and judges are aware of its existence. In essence, the Section provides that once a combat veteran is convicted, and is otherwise eligible for probation, and certain requirements are met, the judge has an option other than sentencing the combat veteran to prison or jail. Once a clear connection is established between the offense and a diagnosis of post-traumatic stress disorder, substance abuse, or psychological problems stemming from service in a combat theater in the United States military, the judge may order the defendant into a local, state, federal, or private nonprofit treatment program. Of course, the veteran has to agree to this alternative. If the veteran successfully completes the program, the court may dismiss the charges. Having an experienced criminal attorney is the only way to ensure a fighting chance of keeping the freedoms a veteran has fought for.

In California, there are a many such private programs, as well as some that exist within the Veterans Administration and Counties. Some the better known ones are Veterans Village in San Diego (which already has a court referred defendant), U.S. Vets in Long Beach, New Directions in Los Angeles, and Swords to Plowshares in the Bay Area. These are residential facilities that deal with the victims of post traumatic stress injuries are a vital asset for the courts and for the recovery of our veterans to a productive life. Prison is no remedy.

Currently the debate regarding this code section centers on the nature of offenses that will be considered for alternative sentencing. Although the only requirement concerning the offense is that the defendant be eligible for probation, there may be some offenses that will not be considered by District Attorneys or Judges. Violent felonies, for one, are difficult choices. The bottom line is that the judge will have the discretion to determine, on a case by case basis, which offenses to accept.

Education is the key to any new approach. Our entire criminal justice system needs to recognize and understand this new code section and accept that we share a significant responsibility for the welfare of our combat veterans. Already, there are some jurisdictions, such as Orange County, that recognize this need and are developing new approaches, such as a Veterans’ Courts to address the growing problem. A stand-alone Veterans’ Court, like Drug Courts, is presently being proposed by the United States Senate and other states are doing so as well. Clearly, this is an issue which grows with importance with every year this nation is at war, and for the generations that will follow.

Clearly this dialogue cannot begin too soon. The clock is ticking, and every day another combat veteran is overwhelmed by the damage he or she has suffered in our service. The dialogue between all elements of the criminal justice system and veterans’ services should begin immediately, and it is incumbent upon members of law enforcement, prosecutors, defense attorneys, the judiciary and probation departments to make an aggressive beginning. Does anyone doubt that we owe our combat veterans anything less?

These are the toughest economic times in this country in a long time. Now this may not be an interesting subject for you to read but you need to understand it because it affects you directly. Families are having a much harder time accessing enough money to hire good lawyers. You have probably seen in the news all the big companies who are going under because of the collapse of our economy. When General Motors, Chrysler, and Ford are on the verge of going under you know this country is in trouble. And it is not just in the automobile industry, it is everywhere! People in this country are losing their jobs left and right.

To summarize how it happened, it began with the collapse of real estate. For many years regular folks have bought houses. As the real estate values increased the value of their homes increased. People who bought a house for 75,000 or maybe 100,000 years ago suddenly had a house that expanded up to where it was worth 300,000, or even more. Lenders would lend these people money based on the increased value of their homes and the amount they owed rose steeply. Those with not great credit could get loans from lenders just based on their equity(the value of the house over what is owed.)

All these lenders then sold their loans to companies on Wall Street who packaged them up as “securities” and sold them to investors. Then the values of real estate started to drop. And the values kept dropping and dropping and dropping. In California values had grown way high and the drop was steep. Regular people who had loans on their equity suddenly owed more than their house was worth. The Wall Street companies who had sold these mortgages as securities began to collapse. The stock market shot down to where the impact was worse than the great depression of 1929. Companies started going under. People lost their jobs and could no longer afford their mortgages. And here we are.

Your family, which used to be able to afford to get a loan on their house to help pay for your defense could no longer do it. Lenders haven’t loosened up yet and the equities in the houses are still low. Even on the smaller cases, families are having a harder time because they need the money and they think that they might as well let the public defender handle the case. The public defender caseloads are growing higher and higher and their staffs are not growing to accommodate the increased caseloads.

If you are charged with a serious crime you really need to hire a good lawyer. Now you need to make you choice more carefully because you cant afford to make a mistake. Many times we see people hire some lawyer, their family pays a lot of money, and they end up realizing that the lawyer is just not that good. It used to be that the family could afford to bypass that mistake and hire another lawyer. Now chances are they can just afford hiring a lawyer one time. You don’t want to end up realizing your life and freedom are on the line and you have to get rid of your bad lawyer and go back to the overworked public defender or panel attorney.

Make sure you and your family hire an experienced criminal attorney or a firm who is reputable and capable of providing you the best defense. Look at their credentials, their results, and interview them carefully so you can hear for yourself, if they know what they are doing. In fact you should interview more than one lawyer so you can see the difference for yourself. You can tell by listening carefully to them if they know what they are doing. Don’t be fooled by someone who promises a lot because they may not be able to deliver. And you don’t want to be on trial’s doorstep when you find out your lawyer is not worth a damn!

Also see if the attorney or the firm has a serious financing plan. If you are going to finance a larger amount the family is going to have to back it up with a good long term job, their retirement account, or their property. They will have to put a significant amount down but that is better than having to pay the entire fee up front. They will also have to pay interest on the payments. In a smaller case the family will have to have a good long term job, decent credit, and agree to be responsible for the payments plus interest, through a debit or credit card.

More carefully, this is a huge decision and it could literally mean the difference in many many years in prison. With the firearm enhancements, gang enhancements, and strikes you could end up spending so much time in prison that you will be very old if you ever get out. Remember, however, giving up is not an option!!

It hits home the very real fact that alcohol and drugs are powerful intoxicants that can cause regular folks to engage in dangerous and deadly behavior. You don’t have to be a bad person to be charged with a DUI murder, you just have to have engaged in deadly driving conduct, under the influence, and have prior knowledge of the deadliness of driving while intoxicated.Cases like these are why having an experienced criminal attorney defending your freedom is important.

Becoming more popular prosecutions these days are what is know in the law as Watson Murders. These cases involve drug or alcohol related vehicular accidents that are charged as 2nd degree murder rather than gross vehicular manslaughter. The critical element that distinguishes the Watson brand of second degree murder from gross vehicular manslaughter is implied malice. The malice, found in murder is implied from the circumstances of the driving and the mental state of the driver as opposed to gross negligence which is found in gross vehicular manslaughter.

Gross negligence is defined in the law as “so slight a degree of care as to raise a presumption of conscious indifference to the consequences.” The “implied malice” element of second degree murder is when a person, “knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life.”

This means that if you drink and drive and get into a vehicular accident you could be charged with murder if the circumstances are such that a prosecutor thinks that implied malice may be involved. The maximum for one count of gross vehicular manslaughter with alcohol is 10 years, the sentence for 2d degree implied malice murder is 15 to life.

The mental state of the defendant is usually the most important issue in a vehicular accident prosecution for murder. The prosecution must show that the accused acted deliberately with a conscious disregard to human life, knowing that those acts were dangerous to human life.

Many times this involves drivers with previous convictions for driving under the influence. Knowledge of the danger doesn’t have to be from prior convictions but prior convictions provide documented knowledge that the driver understood the consequences of driving while intoxicated. In fact, courts routinely admonish someone pleading to DUI that they acknowledge the danger. Part of the admonition is the statement that you know if you drive while under the influence of alcohol or drugs and someone is killed that you can be charged with murder. These are called Watson acknowledgments.

The programs that a convicted DUI offender goes through can also provide the knowledge. People convicted of DUI attend programs that specifically instruct in detail repeatedly of the possibilities of death and destruction that comes from driving under the influence of intoxicants.

The actual factors that will provide sufficient evidence for implied malice in vehicular cases are:

1. Blood alcohol level above the .08 legal limit;
2. A pre-drinking intent to drive;
3. Knowledge of the hazard of driving while intoxicated
4. Highly dangerous driving.

Whenever you have a vehicular death charge and intoxication is involved you have a much harder time proving that the accident wasn’t your fault. Accident reconstruction experts, who normally help tremendously may not be much assistance with a high blood alcohol. That doesn’t mean it shouldn’t be analyzed, or you shouldn’t try, it just means practically that a high blood alcohol is a tough fact to get around if you want to debate causation.

If you are charged with a Watson Murder you need to get out of denial and help your counsel defend you properly. If the evidence is strong enough you need to consider attempting to plea bargain. You do not want to be convicted of something involving a “life tail” in this state and in this political climate. You may have a better chance of parole having been convicted of a driving incident, rather than an intentional killing, but don’t count on it. Prison is a tough place and you can’t guarantee that you will not have incidents that cause problems with your good time credits.