Driving while impaired from marijuana supports 2nd degree murder conviction

People v. Murphy (Cal. Ct. App., June 30, 2022, No. B306773) 2022 WL 2352782, at *1

Summary:Murphy appealed from his three convictions for second degree murder. (Pen. Code, § 187, subd. (a).).1 Murphy argued that evidence supporting his convictions is insufficient because the prosecution failed to prove he acted with implied malice when, while under the influence of marijuana, he drove his car at nearly 90 miles per hour through a red light and collided with another vehicle, killing its occupants.

The court concluded that sufficient evidence supported the jury’s verdict. There is nocommonly administered and standardized medical test equivalent to the blood alcohol concentration test that accurately determines a person’s level of impairment from lipophilic, psychoactive drugs such as marijuana. However, there was substantial evidence that at the time of the accident Murphy was impaired from using marijuana. There was also substantial evidence that Murphy acted with implied malice both when he smoked marijuana with the intent to drive, and when he drove in a manner that demonstrated a conscious disregard for human life.

Toxicology Expert Testimony about marijuana and difference in measure if alcohol concentration
The prosecution presented several expert witnesses during trial describing the differences between how alcohol and marijuana are metabolized and measured in the human body and the cognitive and physical effects of marijuana on users.
Alcohol is a hydrophilic substance, which means alcohol is metabolized in water-based systems of the body, including blood. A blood test to measure blood alcohol concentration (commonly known as a BAC) provides an accurate measure of the concentration of alcohol in a person’s body at the time of a blood draw and a fairly uniform measure of impairment. Because tye body eliminates alcohol at a constant rate, a toxicologist can use a person’s BAC at a given point in time to extrapolate that person’s estimated BAC at an earlier point in time.

Marijuana is a lipophilic drug, meaning it is stored in the body’s fatty tissue and organs, including the brain. The effect of lipophilic drugs varies from one person to another but that generally, within 90 minutes after a person smokes marijuana, 90 percent of the marijuana will have left the bloodstream and moved into the brain. Blood tests are therefore a less accurate measure of the amount of marijuana present in a person’s body at any point in time. There is no test equivalent to a BAC test for alcohol that accurately determines a person’s level of impairment from lipophilic drugs such as marijuana. Blood tests for marijuana could measure the concentrations of certain components of marijuana, including delta-9 tetrahydrocannabinol (“THC”) and THC metabolites: (1) carboxy, which is non-psychoactive; and (2) hydroxy, which is psychoactive. Toxicologists use carboxy and hydroxy concentrations to calculate “some rough estimates” about when someone last used marijuana. A measurement of carboxy THC can show marijuana in a person’s body weeks after the person last used the drug whereas a measurement of hydroxy THC discloses information about more recent ingestion of marijuana.

Murphy’s blood was drawn at the hospital at 4:38 p.m. on the day of the accident, about four hours after the collision. The results showed Murphy’s blood contained 7.2 nanograms per milliliter of THC, 3.3 nanograms per milliliter of hydroxy THC, and 225 nanograms per milliliter of carboxy THC. Given hydroxy was detected in Murphy’s blood, he probably used marijuana within 24 hours prior to the collision. The presence of carboxy concentrations greater than 100 nanograms per milliliter indicated Murphy was possibly a chronic marijuana user.
Impairment from marijuana use
Studies have shown marijuana users may experience cognitive impairment many hours after ingesting the drug. Many hours after smoking marijuana, well after the feeling of euphoria has worn off, a user may still be impaired. Occasional users might return to their baseline function within three to six hours (with some having cognitive impairments that last up to 24 hours). But it was possible for long-term, chronic users to have more prolonged effects even if they had not smoked in 12 hours, psychoactive THC might still be stored in the person’s brain, affecting cognition.
Impact of marijuana in driving
Marijuana use tends to have more mental than physical effects. Aperson is “under the influence” when that substance has some effect on the user; a person is “impaired” when mental or physical capabilities are so greatly affected that the person cannot drive a vehicle with the necessary caution and safety of someone who is sober.
Marijuana can cause a person to experience feelings of euphoria and can have cognitive impacts such as divided attention, the inability to multitask, lack of perception of time and diminished spatial awareness. The physical impairments include difficulties in balance and coordination, increased heart rate and blood pressure as well as a lack of convergence, which hinders a person’s ability to distinguish something far from something nearby. Marijuana use imposes challenges to a driver’s ability to safely operate a motor vehicle, including impairing focus on the road and affecting reaction time. A driver impaired by marijuana might be incapable of reacting appropriately or timely to unexpected events on the road. Marijuana impairment could also contribute to speeding or driving too slowly, weaving within or outside of one’s lane, veering off the road and failing to observe stop signs or traffic signals.
Implied Malice Second Degree Vehicular Murder
Murder is the unlawful killing of a human being with express or implied malice aforethought. (§§ 187, subd. (a), 188; accord, People v. Rangel (2016) 62 Cal.4th 1192, 1220, 200 Cal.Rptr.3d 265, 367 P.3d 649.) Malice is “express” when a person manifested a deliberate intention to unlawfully take away the life of another human being; it is implied when there was no considerable provocation or when the circumstances attending the killing show an abandoned and malignant heart. (People v. Soto (2018) 4 Cal.5th 968, 974, 231 Cal.Rptr.3d 732, 415 P.3d 789. (Soto).)
Implied malice has “ ‘ “both a physical and a mental component. The physical component is satisfied by the performance of ‘an act, the natural consequences of which are dangerous to life.’ The mental component is the requirement that the defendant ‘knows that his conduct endangers the life of another and acts with conscious disregard for life.’ ”People v. Watson (1981) 30 Cal.3d 290, 300, Watson).) Malice may be implied when [the] defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life.”To support a finding of implied malice, the evidence must establish the defendant deliberately committed an act, the natural consequences of which were dangerous to life, with knowledge of the act’s danger to life and a conscious disregard of that danger. (Watson, supra, 30 Cal.3d at p. 300.) This conscious disregard for the danger to life distinguishes implied malice from gross negligence, which involves “the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences.” The standard for implied malice is subjective and requires the defendant appreciate the risk involved. (Watson, supra, at pp. 296-297, 179 Cal.Rptr. 43, 637 P.2d 279.)
Since Watson, numerous appellate courts have upheld murder convictions in cases where defendants have committed homicides while driving under the influence of alcohol and other controlled substances.
Although the Watson factors are relevant to the determination of implied malice vehicular murder, courts have also recognized that “there is no particular formula for analysis of vehicular homicide cases, instead requiring a case-by-case approach.”
Analysis
Substantial evidence in the record supported the jury’s finding of implied malice for Murphy’s second degree murder convictions.
The jury could reasonably infer Murphy was under the influence of marijuana when he ran the red light and struck the Subaru. The jury could reasonably infer, from the substantial evidence presented, that Murphy smoked marijuana several times in the hours before the accident. The toxicology evidence showed Murphy had a significant quantity of psychoactive THC in his blood four hours after the accident, which indicated he had recently ingested marijuana. Based on the quantity of psychoactive THC in Murphy’s blood, the toxicology expert hypothesized that a similarly situated person would likely have been actively impaired at the time of the collision.

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