Russell Hebets March 26, 2014

Around midnight on March 24th, tragedy struck. According to the charging document, Ever Olivos-Gutierrez, an undocumented illegal alien, was driving a Ford Exposition near the intersection of Dayton Street and Colfax Avenue in Aurora just east of Denver. He did not have a valid license. Police say he had been drinking and ran a red light. His vehicle collided with a Chevrolet Camero driven by 17 year old Juan Carlos Dominguez-Palomino. The young man was killed.

In most cases involving a traffic death when a driver is accused of Driving Under the Influence, the state charges the defendant with Vehicular Homicide. This charge was written specifically to address a DUI death, and is classified as a Class 3 Felony carrying a standard range of 4-12 years in the Department of Corrections, with the possibility of up to 24 years.

It was very surprising when the Deputy District Attorney handling this case indicated that the prosecution would likely be proceeding on charges of Murder in the First Degree. Can they do this? The most common definition of Murder in the First Degree is when someone kills another intentionally after deliberation. Clearly this definition doesn’t fit this case, even if everything in the police report is taken as gospel.

So how is this First Degree Murder? The Arapahoe County District Attorney will likely proceed under a different clause of Colorado’s murder statute. Under this section they would need to prove that Mr. Olivos-Gutierrez showed extreme indifference to the value of human life by knowingly engaging in conduct that creates a grave risk of death to another. This charge is a Class 1 Felony, carrying at a minimum life imprisonment, and at the maximum, a death sentence.

Will this fly? Only time will tell. Extreme Indifference First Degree Murder is usually charged for incredibly reckless conduct, such as a person who fires a gun indiscriminately into a crowd of people. To our knowledge, it has never been used in a Vehicular Homicide case, because there is usually no intent by the defendant to kill anyone. However, there are persuasive arguments on either side of this debate which we will analyze in future blogs as the story develops. For now you can read the initial story here and continue to stay tuned!