In a seminal decision that may spell the end of murder indictments as the weapon of choice for drunk drivers, the Appellate Division, Second Department, with one justice dissenting, reversed and dismissed a first degree assault conviction in People v. Valencia.  The charge was predicated on a “depraved indifference” theory, alleging that the defendant’s state of mind at the time he chose to drink alcohol, knowing that he would later be driving a car, was sufficient proof.

We agree with the defendant that the evidence at trial, viewed in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), was legally insufficient to establish that he acted with the culpable mental state of depraved indifference to human life at the time he collided with the complainants’ vehicles and, thus, did not support his conviction of assault in the first degree (see Penal Law § 120.10[3]; People v Feingold, 7 NY3d 288; People v Palmer, 34 AD3d 701). In this regard, we find unpersuasive the prosecution’s contention that the mens rea component of depraved indifference assault may be satisfied by considering the defendant’s state of mind at a point much earlier in time than the accident, when the defendant allegedly made a conscious decision to consume an excessive amount of alcohol with the awareness that he subsequently would be operating a motor vehicle. Assuming arguendo that the evidence would support such a finding, and that such a state of mind would otherwise satisfy the culpable mental state of depraved indifference to human life, we conclude that the defendant’s state of mind at the time he consumed the alcohol was too temporally remote from his operation of the vehicle to support a conviction for depraved indifference assault in this case.

This foreshadows the case of Robert Heidgen and others, charged with second degree murder under a depraved indifference theory, and is a serious blow to Nassau District Attorney Kathleen Rice’s efforts to obtain murder convictions against drunk drivers.

The majority relied upon the time lapse between the act of drinking excessive amounts of alcohol, when the prosecution claimed the defendant’s mental state met the depraved indifference standard, and the time when the act of drunk driving cause harm, when there was no evidence as to defendant’s mental state.  This “temporal remoteness” between intent and act resulted in a failure ot proof.  The court also left open the question of whether voluntary intoxication negates the mens rea of depraved indifference.

Justice Mark Dillon, dissenting, saw this as a distinction without a difference, since this was a chain of events that began with the defendant’s excessive drinking and ended in a drunk driving crash. 

While a defendant’s mens rea is typically present at the time of the actus reus, the physical component of the crime (see e.g. People v Rosas, 8 NY3d 493, 499), the mens rea and actus reus in depraved indifference circumstances need not necessarily be simultaneous (see generally People v Kibbe, 35 NY2d 407; People v Galle, 77 NY2d 953 [criminally negligent homicide]). Therefore, viewing the evidence in the light most favorable to the People, as we must (see People v Contes, 60 NY2d 620, 624), the evidence presented at trial is legally sufficient to sustain the defendant’s conviction of assault in the first degree based on depraved indifference to human life (see Penal Law § 120.10[3]). The evidence was sufficient to prove the defendant’s culpable mental state at the time of his excessive drinking. Contrary to the defendant’s contention, his voluntary intoxication by alcohol did not, under the peculiar circumstances of this case, negate, as a matter of law, the requisite elements of depraved indifference to human life, or prevent the People from proving the elements of depraved indifference assault beyond a reasonable doubt (cf. People v Castellano, 41 AD3d 184, 185; People v Carter, 40 AD3d 1310, 1312). The fact that the defendant was found to be “oblivious” in the moments leading up to the accidents underscores the People’s argument that the defendant’s conduct, at the time of his drinking while intending to drive a motor vehicle thereafter, evinces an “utter disregard for the value of human life” (People v Feingold, 7 NY3d at 296).

While this decision is surprisingly cursory given the depth of the issues involved, the dissent has a point about the reliance on the temporal remoteness between intent and act as a hard rationale for disapproving the use of a depraved indifference theory to elevate a harm resulting from drunk driving to a far more serious crime.  It’s true that the “intent” element must, under general principles, exist at the time the act is committed, but it’s unclear in situations involving drunk driving what exactly the bad acts are, and when they occur.  Are they discrete acts, as the majority concludes, or a course of conduct, as argued in dissent?

What remains unaddressed is whether getting drunk, anticipating that at some point the person will get into a car and drive, rises to the level of “the culpable mental state of depraved indifference to human life.”  It appears that no court is yet willing to take on the Mommy Forces by holding that getting drunk does not rise to the level of depraved indifference.  While courts approvingly invoke the classic examples of depraved indifference, “shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions’ cage in the zoo,” they fail miserably to compare with drinking alcohol.  No one wants to openly state that it’s just not the same thing.

There are two monumental distinctions that courts have been reluctant to recognize, that drinking alcohol has no inherent correlation with being indifferent to someone being harmed.  It is a commonplace, lawful act, engaged in daily by millions of people.  That some of these millions will have an extra drink, and then another, their judgment impaired the first lawful drink and each drink thereafter, does not give rise to any point in time when it dawns on the drinker that he is about to do something which has a grave risk of death of another person, and then makes an intelligent decision to ignore this risk and engages in the act nonetheless.  This never happens.

The second element is the grave risk of death caused by drunk drivers.  Relative to the number of people who drink to excess and drive, the chances of someone causing the death of another are quite small.  If the risk was grave, there should be dozens of deaths every day from drunk driving, but there isn’t.  The reality that no one wants to admit is that most drunk drivers make it home without incident, to sleep it off and do it again another day.  This isn’t a good thing, but it is the reality.  Only a small fraction end up in an accident, and an even smaller fraction end up causing serious harm or death.  There’s no “grave risk” of anything, which may explain why people never see themselves as the next defendant in a drunk driving murder case.

This has nothing to do with excusing the harm caused, or rationalizing it away as inconsequential.  It’s neither, and no one should die due to a drunk driving accident.  It’s not a right or wrong issue, but a proportionality issue.  Drunk driving is not the equivalent of shooting a gun at people.  It’s just not even close in terms of moral culpability or likelihood of harm, and shouldn’t be treated alike.

What this means is that drunk drivers should not be prosecuted under a depraved indifference theory, elevating the crime to levels equivalent to those who make a knowing decision to ignore the grave risk of death they cause.  As to the moral culpability of drunk drivers, the only difference between the drunk who makes it home to sleep it off and the one who kills another human being is pure luck.  Being a loser in a game of chance provides no rationale for elevating the charges to murder levels.

So while the decision in Valencia foretells the Second Department’s view of using depraved indifference to charge Heidgen with murder, the rational appears suspect and subject to attack.  It would be far better if the Court would address the heart of the matter and openly state that getting drunk is nothing like shooting a gun into a crowd.   But such an obviously true yet  politically unpopular holding will have to wait for another day.