Russell Hebets June 9, 2019

We recently blogged on the tragic case of Ever Olivos-Guttierez, the undocumented alien who slammed into the vehicle of 17 year old Juan Carlos Dominguez-Palomino. Mr. Olivos-Guttierez fled the scene, and the young Dominguez-Palomino was killed. In a very unusual move, the Arapahoe County District Attorney’s office charged Mr. Olivos-Guttierez with 1st Degree Murder. In a subsequent blog entitled DUI Fatality – Why First Degree Murder is Appropriate, we put forth a case supporting this charging decision. In this blog we will consider why 1st Degree Murder charges may not be appropriate for a DUI fatality case.

One compelling reason why a murder charge may not be appropriate is that the Colorado legislature has already specifically created criminal charges for the exact situation of an intoxicated driver killing another while behind the wheel. This statute, titled Vehicular Homicide, is a class 3 Felony when committed by an intoxicated individual. It carries with it the very significant jail term of up to 24 years in prison. The purpose of the executive branch of government (i.e. the Arapahoe County DA’s Office) is to enforce the laws created by the legislative branch. The act of charging this death as 1st Degree Murder does an end-run around the will of the people as enacted by the Colorado legislature.

The case of a DUI homicide further does not fit the typical definition of 1st Degree Murder. When most people hear Murder in the First Degree, they think of the guy (or girl) who sits at home plotting the details of a very deliberate act of murder before carrying it out. This image actually hits pretty close to the mark of the most oft used legal definition of First Degree Murder. The very first section of Colorado’s murder statute states that you need deliberation to be convicted under this section. A DUI driver doesn’t deliberate about killing someone. It may be terrible and it may be avoidable, but it isn’t deliberate.

The biggest problem area with this charge is the mental element to the offense. Your typical definition of First Degree Murder includes an intentional act, i.e. the murderer meant to kill someone. A typical murder isn’t an accident. A vehicular homicide, no matter how tragic, is still an accident. Despite killing Mr. Dominguez-Palomino , it is undisputed that Mr. Olivos-Guttierez did not mean to kill anyone when he got into his vehicle drunk.

Now before everyone tells us how the driver made a deliberate choice to get into a vehicle after becoming intoxicated, and intended to drive after becoming intoxicated, let’s look at how this would play out in everyday life. To fit this case into Murder in the First Degree, the Arapahoe County DA’s office is using the rationale that Mr. Olivos-Guttierez knowingly engaged in conduct that created a grave risk of death to a person. In 2013 there were 28,198 DUI arrests in Colorado. Under the DA’s rationale every one of these 28,198 arrests should be charged with attempted First Degree Murder. Each of these drivers is alleged to have engaged in the exact same conduct that Mr. Olivos-Gutteirez engaged in. How about texting while driving? The texting driver knowingly engages in conduct that creates a grave risk of death to a person. Is this First Degree Murder? Where is the line drawn? Wherever it is, it should be short of a mandatory life sentence for unintentional acts.