THE AUTHOR
Greg Hill
Is Being Unconscious While DUI a Defense to Second Degree Murder Charge? Appellate Court Says No.
On Friday evening, February 22, 2008, Elijah Ferguson crashed into the rear of a car stopped at a red light and carrying Michael and Grace Stein. BY GREG HILL
On Friday evening, February 22, 2008, Elijah Ferguson crashed
into the rear of a car stopped at a red light and carrying Michael
and Grace Stein. The accident happened at the corner of MacArthur
and Jamboree Boulevards. Post-accident analysis of Ferguson’s car
revealed he was traveling 75 miles per hour and accelerating, only
to decelerate 0.1 second before impact. Ferguson’s BAC, taken two
hours after the crash, was 0.12.
Michael Stein died instantly from the impact; Grace was severely
injured.
Ferguson was charged with second degree murder under Penal Code §
187(a), as well as DUI related charges. At trial, the prosecution
put forth testimony that Ferguson, a Lance Corporal in the Marines
and stationed at nearby Camp Pendleton, attended several classes on
safe driving which included warnings about DUI.
Some of his fellow Marines in his unit also testified about
listening to weekly “liberty briefings” that included additional warnings about
DUI. The Marines testified that Ferguson had most likely listened to fifty such
briefings while in the Marines. In fact, Ferguson underwent such a briefing
about eight hours earlier in the very day of the crash.
Toward the end of trial, Ferguson requested a jury instruction on the defense of
unconsciousness, as several witnesses at the scene testified he appeared
confused at the scene as to what happened. A police officer who interviewed him
after the crash also testified that Ferguson had no memory of the crash. The
suggestion was that he was asleep at impact.
The unconsciousness instruction proposed told the jury that if they found
Ferguson had voluntarily become intoxicated (CALCRIM 626), they could find him
guilty of the lesser included offense of involuntary manslaughter. This would
greatly reduce Ferguson’s punishment. The trial court denied Ferguson’s request.
Ferguson was then convicted and sentenced to fifteen years to life in prison.
He then appealed, claiming the trial court erred in refusing his proposed jury
instruction based on voluntary intoxication resulting in unconsciousness.
The Second Appellate District, in People v. Ferguson (2011 DJDAR 6062),
disagreed, saying the trial court did the right thing. The basis for its opinion
was that Ferguson displayed a reckless disregard for the safety of others,
satisfying the implied malice standard required for second degree murder,
because he knew very well the dangers of DUI from the perhaps 50 weekly liberty
briefings he had undergone in the Marines. He knew that drinking and driving
would endanger the life of another.
In addition, the Court held, Ferguson displayed conscious disregard for life
because his fellow Marines testified how on the evening in question, they knew
he was very drunk, so they took away his car keys. In response, Ferguson became
angry and belligerent when they would not let him drive.
In particular, the Court described how Ferguson tried to trick another Marine
into letting him have the keys “so he could get something out of his car.”
Ferguson also agreed to have another Marine drive him home, but at the moment of
leaving, told the other Marine he could not spend the night at his home after
driving him home. Ultimately, Ferguson obtained the keys by prevailing upon a
junior Marine by reminding him of his lower rank and ordering the junior Marine
to turn over his keys.
The Court further pointed out that CALCRIM 626, the jury instruction sought, was
specifically excluded from use in any act involving driving of a vehicle under
Penal Code § 192.
As such, Ferguson’s sentence remained fifteen years to life.
About the Author
Greg Hill has been practicing for thirteen years. His office is in Torrance, California. He is a U.S. Naval Academy graduate (B.S., 1987), Boston University graduate (M.B.A., 1994) and Loyola Law School graduate (J.D., 1998).
Greg Hill & Associates represents clients in Torrance, Long Beach and the surrounding areas in sex offenses, as well as DUI, domestic violence and restraining orders, among other crimes.
