Criminal Law Corner - The Watson Warning: When a DUI becomes Murder

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By Stephen C. Mancini

In the 1981, California landmark case of People v. Watson, 30 Cal.3d 290 (1981), the Supreme Court of California established law providing that an individual convicted of a DUI, reckless driving, or DUI with injuries is to receive a warning that any future prosecution for such violations involving a death could result in a charge of Murder in the Second-Degree as opposed to the prior, more commonly charged Involuntary Manslaughter.  

Let’s take a step back to see how the court evolved from Involuntary Manslaughter to a charge of Second-Degree murder which requires malice.  First, there is ordinary negligence – that negligence which is a slight deviation from the norm.  This is your basic tort with no criminal liability usually attaching.  This may be a situation where a driver is travelling a bit too fast and is distracted and rear ends a vehicle killing the driver.  In such a case where one causes death, a civil action could well ensue, but not any criminal culpability.  But what if the driver had a few drinks prior to getting on the road and perhaps was speeding when they inadvertently went through a red light killing another driver.  This would appear to be a gross deviation from the norm, and would establish gross negligence rising to the level of criminal culpability which is the standard for Involuntary Manslaughter.  So, for decades gross negligence involving a death would equate to Involuntary Manslaughter.  And this situation would be most seen in the context of a vehicular homicide.

But what if the activity of the driver was egregious and seemed to rise to a higher level than gross negligence? What if the driver’s blood alcohol level was three times the legal limit, and the driver was recklessly driving through a school zone during the day?  Would such conduct still be considered a gross deviation from the norm or something greater?  And, if so, what would that greater be? We know that murder requires malice, but how could the law ever consider a DUI or reckless driving case malicious.  Could a court look to the totality of circumstances to determine malice? Would being three times the legal limit and recklessly driving through a school zone be enough to rise the activity to the level of malice to justify a murder charge?  Because the malice would have to be implied malice, the more egregious factors involved, the more implied malice could be established.  The second-degree murder charge involving implied malice would fall within the concept of depraved heart – a conscious disregard for human life.  But would the law need more – something that would put the defendant on notice that should the defendant drive impaired in the future resulting in a fatal accident, such incident could result in a murder charge.  And by putting the defendant on notice, such factor would add greatly to the totality of circumstances and bolster the charge for Second-Degree murder.  The notice – THE WATSON WARNING.  And the implied malice for Second-Degree murder is that the defendant was warned of the risks in the prior case but chose to drive and act in a conscious disregard for human life – despite the express warning.

The Watson warning, or Watson advisement, states:

“You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle.  Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both.  If you continue to drive while under the influence of alcohol or drugs, or both, and as a result of that driving, someone is killed, you can be charged with murder.”

Generally, the Watson warning is part of the Tahl[1] waiver (the document signed by defendant at the time of their plea to a DUI, wet reckless, or DUI with injury) read to the defendant in open court by the judge before Defendant takes the plea.  The judge will require the Defendant to acknowledge the advisement and that he/she understood the warning.  At that point they are deemed to be on notice.

However, the Watson warning will be given during Defendants’ plea on his/her first offense and during each offense thereafter.  The Watson warning will not apply during the first offense as there was no previous offense where Defendant would have received the warning.  Therefore, the Defendant will only receive his/her first warning during the first conviction and those convictions thereafter.  So, to charge the Defendant with second degree murder on his/her first offense, other overwhelming egregious factors that would constitute implied malice would have to be shown, but the notice given in the Watson warning would not be a factor. 

During the plea for a DUI, reckless driving, or DUI with injury, it is required for an attorney to go through each provision of the Tahl waiver for the Defendant to understand the rights he/she is waiving in exchange for the plea.  All the provisions are important, such as waiving ones right to trial, immigration ramifications, etc.  But what may be more important than any of the other provisions is your client’s understanding that any subsequent death caused by their egregious conduct could result in a second-degree murder charge which would be punishable by 15 years to life in state prison.  So, the last words an attorney might want to say to their client after the plea is “YOU’VE BEEN WARNED.”