Colin McCallin April 7, 2014

We have recently blogged about the tragic DUI fatality case in which Ever Olivos-Gutierrez has been accused of driving drunk and killing Juan Carlos Dominguez-Palomino, a 17 year old boy. Olivos-Gutierrez is an illegal immigrant with several prior DUI and Driving Under Suspension convictions. His blood alcohol content was 4 times above the legal limit, and he attempted to flee the scene after the collision. These aggravating factors, as well as the high profile nature of the case, have led Arapahoe County prosecutors to charge Olivos-Gutierrez with First Degree Murder. You can read more about the case here. First Degree Murder is a very rare charge in this type of case, and its use has created a spirited debate as to its propriety, and our blog generated a lot of discussion. In this blog, we will discuss why this charge is appropriate and provable. In a future blog, we will discuss why it might be prosecutorial overreaching, and not provable.

First of all, it is important to note that there are several types of ways First Degree Murder can be charged. What comes to mind of most people when they think of First Degree Murder is premeditated murder, which requires the suspect to have the intent to kill another person after deliberation. This is NOT the way they are charging Olivos-Gutierrez. He is being charged under an extreme indifference theory. Specifically under this theory, the prosecution has to prove that Olivos-Gutierrez, “under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, knowingly engaged in conduct which created a grave risk of death to a person or persons other than himself, and thereby caused the death of another.”

Notice that under this theory, intent is not a requirement; in other words the prosecution doesn’t have to prove that Olivos-Gutierrez meant to kill anyone. The prosecution will attempt, rather, to establish that his conduct was so reckless and egregious that another person’s death was inevitable. Can they prove it? Let’s look at the facts they will rely on.

First of all, he’s done similar acts before with his prior DUI’s. He is a repeat offender- something that the prosecution will want to pound into the heads of the jury (you can bet the defense will try to keep this information out of the trial). Second, he was highly intoxicated. At 4 times the legal limit, the prosecutors will demonstrate that he was in no position to drive. This is the conduct “which created a grave risk of death to a person other than himself.”

Third, they will argue that his car became a deadly weapon destined for disaster, much like placing a loaded gun on the carpet in a room full of kindergarteners. Something terrible was foreseeable and preventable, but he drove anyway. Fourth, he fled the scene. This is the big one. He left his young victim to die in an attempt to avoid responsibility. This is an important factor because it demonstrates intent after the fact- the “universal malice” element. It shows that Olivos-Gutierrez knew what he did and tried to get away with it.

The defense might argue that First Degree Murder as applied in this case will cause a slippery slope, and that it sets up every DUI offender to become a possible attempted murderer, but so what? Prosecutors might see this as an opportunity to show the community that this crime will not be tolerated in an effort to increase deterrence for drinking and driving offenders. This stance may have community support- many people in this community think Olivos-Gutierrez is the poster boy for why our DUI laws are too lenient. Prosecutors will use this to their advantage- this case evokes strong emotions of sympathy toward the victim, and feelings of hostility and hatred toward Olivos-Gutierrez. Putting this all together could result in a conviction for Olivos-Gutierrez for First Degree Murder.