In December of 2019, while I was still a prosecutor with the Bucks County District Attorney’s Office, I got assigned to a horrific double-fatal DUI crash from I-95 in Bristol Township. A drunk driver, while traveling over twice the speed limit of 55 MPH, slammed into the back of a van that was carrying four people who were heading home from work after midnight. The van caught fire, and the back two passengers couldn’t make it out in time. The driver and front seat passenger were barely able to climb out of the passenger door, but suffered permanent injuries. Today, after initially reversing his conviction on the most serious charges, the Superior Court changed course and affirmed his convictions for Third-Degree Murder and Aggravated Assault.
Ordinarily, though most of us would say in conversation that driving drunk is a reckless thing to do, the law doesn’t usually see it that way. For an act to be “reckless” in a criminal case, the person has to “consciously disregard a substantial and unjustifiable risk” that a particular result will occur. Because of the way our courts have interpreted this over the years, a DUI is not considered “reckless” unless there are more factors to it. Things like speed, traffic conditions, driving behavior (passing, swerving, etc.), the type of road, the presence of pedestrians, and weather can all be a factor toward recklessness. Resultingly, DUI is usually only “careless,” which means not exercising proper caution that we should all expect.
How Does a DUI become a Murder?
There have certainly been DUI cases that rise to being “reckless,” but rarely do DUI cases rise to such an extreme level of recklessness that we call “malice.” Malice is the state of mind that the prosecution must prove for a Murder charge or for an Aggravated Assault charge where the conduct is not intentional. You’ve probably heard of the case of a Philadelphia woman who bragged about driving drunk, got warned to stop, and wound up killing two state troopers and a civilian by crashing into them while they were stopped. She pled guilty to third-degree murder and got 27.5 to 60 years in jail.
Although it probably just sounds like semantics in a short blog post like this, think of malice as being “extra reckless.” It’s not just a “substantial” risk; it’s that serious injury or death is a likely consequence of the person’s actions, but they disregard or ignore those probable consequences. One way of proving malice is showing that somebody was told or encouraged to stop doing what they’re doing but they kept doing it, and somebody got seriously hurt or killed. But another way is to show that the person was reckless for a long time. This is called “sustained recklessness,” in the face of an obvious risk of harm to potential victims.
The Basic Facts
In this case, Commonwealth v. Kevin Peters, the defendant drove to work in Philadelphia. After work, he spent about 7 hours drinking relatively strong drinks with co-workers, refused offers for a ride home to Bucks County, and struggled to navigate his way out of the parking garage. On his way up I-95, he missed his exit twice and drove so dangerously as to cause two other drivers to call 911 on him separately. He took his eyes off the road while going about 115 MPH to lean over and pick something up, and when he looked up it was too late to even hit his brakes. Toxicology results showed his blood-alcohol level was almost twice the legal limit for DUI.
Because when all of the factors considered together showed sustained recklessness, rather than just another preventable DUI crash, the Commonwealth charged not only Homicide by Vehicle while DUI and Aggravated Assault by Vehicle while DUI, but Third-Degree Murder and Aggravated Assault. The jury convicted him of everything and he was later sentenced to 19.5 to 39 years in jail, which is far higher than he would have received if he weren’t convicted of Murder and Aggravated Assault. There were no winners.
Superior Court – Round 1
Mr. Peters appealed to the Superior Court. As in most appeals, a 3-judge panel of the PA Superior Court (which usually has 15 total judges) initially heard the appeal. That panel reversed the Third-Degree Murder and Aggravated Assault convictions, reasoning that the Commonwealth hadn’t proven malice. The panel relied heavily on the fact that nobody ever overtly told Mr. Peters that he was too drunk to drive, and that he disregarded such a warning. In other words, it was because the Commonwealth hadn’t met a “notice requirement.” Most of us know that getting hammered and driving 115 MPH is pretty darn dangerous; the panel ruled that somebody had to actually say it to this 37-year-old defendant for there to be a conscious disregard of this risk.
Superior Court – Round 2
The DA’s Office asked the Superior Court to take a closer look at the case and requested an en banc argument, where a larger 9-judge panel comes together to decide the issue. Recognizing the seriousness of the case, the Superior Court agreed to reconsider its earlier decision. Today, almost 3 years after the trial, the Superior Court reversed course on itself, and the en banc panel affirmed the original conviction and sentence for Third-Degree Murder and Aggravated Assault.
Some Quotes from the Majority
The lengthy Superior Court Opinion takes a deep dive into why it eventually found that malice existed in this case. Here are some quotes directly from the Opinion:
- Appellant, after drinking to excess over several hours, attempted to exit his parking garage, but could not operate the garage’s payment machine. He then damaged the gate when he forcibly opened it to exit. Appellant’s difficulties in exiting the garage certainly alerted him that he was too intoxicated to drive safely. Yet he was not deterred.
- “After Appellant began driving, numerous instances alerted him that continuing to drive, while significantly impaired, posed an extremely high and unjustifiable risk to others. Appellant violated numerous traffic laws, drove recklessly for nearly an hour before the collision, and narrowly avoided hitting two other motorists on I-95 (prompting both motorists to call 911 to report Appellant’s hazardous driving).”
- “Appellant twice missed his intended exit on I-95, despite having lived in the area for six years.”
- “Immediately before the collision, the intoxicated Appellant admittedly took his eyes off the road while driving over 100 mph, and reached over to the passenger-side floorboard to retrieve his phone.”
Summing it up, while acknowledging it was a close call, the Superior Court said that “under the totality of the circumstances, the evidence was sufficient to demonstrate Appellant ‘displayed a conscious disregard for an unjustified and extremely high risk that his actions might cause death or serious bodily harm.'”
What’s Next?
So, for now, the jury’s verdict and the judge’s sentence will remain in place. Since the Superior Court’s Opinion is en banc, it becomes precedential and is now the law of the land. It’s pretty likely that Mr. Peters will appeal this decision to the Pennsylvania Supreme Court, and we think they’ll agree to hear his case because of how serious its implications are. I wouldn’t expect a decision anytime this year, but this is one to keep an eye on for prosecutors and defense attorneys alike.
Download the Opinions, hot off the presses from earlier today, right here:
Majority Opinion affirming the conviction – CLICK HERE
Concurring Opinion, which agrees with the majority’s result but for different reasons – CLICK HERE
Dissenting Opinion, which disagrees with the majority’s decision – CLICK HERE
Call Us
DUI can be anything from a misdemeanor that gets you 6 months of probation to a slew of felonies that lands you in state prison for much of your adult life, let alone the guilt and financial ruin you’ll cause yourself and your family. If you’ve been involved in a crash and were under the influence of anything, you should call us to immediately secure us as your legal representation. Sometimes early attorney involvement can make a huge difference in how a case is charged or resolved.
Or contact me privately:
steve@fairlielaw.com
(215) 997–1000