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Second degree murder based on implied malice is committed when (1) a person does an act, the natural consequences of which are dangerous to life; (2) the act is deliberately performed by a person who knows that his conduct endangers the life of another; and (3) the person acts with conscious disregard for life.
After two people died when defendant was in a drunk driving accident, defendant was charged with second degree murder and vehicular manslaughter. When the trial court dismissed the charges, the state sought review. The court reversed. Based upon an independent review of the record, there existed a rational ground for concluding that defendant's conduct was sufficiently wanton to hold him on a second degree murder charge.
Was there sufficient evidence to charge defendant for second degree murder?
The facts supported a finding of implied malice justifying the murder charge. The conduct of defendant exhibited wantonness and a conscious disregard for life, which would support a finding of implied malice. The evidence was sufficient to uphold the second degree murder counts and to permit the state to prove, if it could, the elements of second degree murder. Defendant's blood alcohol content one-half hour after the collision was .23 percent, more than twice the percentage necessary to support a finding that he was legally intoxicated at the time of the accident.