Murder in connection with a drunk driving charge is actually controversial. Historically, drunk driving related deaths have been treated as negligent homicide, manslaughter or under the specific offense of “operating while intoxicated causing death.”
The controversy is all about intent. Since alcohol affects a person's judgment, a person's mental faculties become increasingly compromised as the level of intoxication rises. Arguably, the level of intoxication may result in a diminished capacity, meaning that the person could not appreciate the magnitude or likelihood of causing harm. Insofar as the criminal act is concerned, the level of intoxication might mitigate against culpability and, arguably, the driver may have been too drunk to know the risk of his or her actions so the accused should not be charged with depraved indifference murder.
Michigan Courts have held that a person may be charged with murder in connection with a drunk driving fatality. The elements that must be established beyond a reasonable doubt to sustain a conviction for second-degree murder are: (1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse. Malice, in connection with a drunk driving death case, is the critical element that separates a murder case from manslaughter and other less serious offenses. The element of malice can be satisfied by establishing that the defendant intended to do an act in wanton and willful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm. But the prosecutor cannot establish malice merely by claiming that the defendant was driving while intoxicated. Not every case in which intoxicated driving leads to a death constitutes second-degree murder. Instead, the prosecutor must show that the evidence establishes “a level of misconduct that goes beyond that of drunk driving.” a conviction for second-degree murder can be sustained.