Com v. Packer: DUI on immediate and debilitating intoxicants satisfies mens rea for third-degree murder
In Commonwealth v. Packer, the Pennsylvania Supreme Court rules that the choice to drive immediately after and while huffing difluoroethane (DFE) intoxicants that are known to render the user unconscious satisfies the high standard of malice necessary for a finding of third-degree murder.
Danielle Packer went to a Walmart late one night with her fiancé, Julian Shutak, and bought aerosol cans, which they both “huffed” before getting back into the car. Packer and Shutak engaged in self-aware ironic dialogue about the likelihood that Packer would kill them both while driving intoxicated. After getting on the road, Packer huffed again at a red light, and continued driving, ultimately losing consciousness, as she had before when “huffing.”
Her car crossed the dividing lines while Shutak yelled to get her attention and struck another oncoming car, killing the driver. Packer emerged from the vehicle with very little concern over the victim of her acts, but extremely concerned about her own future. Frantically asking several witnesses if she was going to jail, and smoothly asking the EMTs if the police would be able to detect DFE in her system, Packer demonstrated to every witness involved that night that she had been well aware of the likelihood that DFE would knock her out while driving.
A jury convicted Packer of third-degree murder, and Packer appealed all the way to the Supreme Court of Pennsylvania. Packer appealed to several prior cases of the Court which ruled that the malice required for murder is generally not found in a run-of-the-mill DUI.
Majority by Donohue: Packer’s knowledge of DFE’s effects on her led to virtual certainty that someone would be killed on the road
Writing for the unanimous Court, Justice Donohue explicated the various levels of murder in Pennsylvania’s common law tradition, now codified by statute. First-degree murder is the premeditated variety; second-degree murder, the felony murder kind; and third-degree murder is the catchall of “any other” type of murder, but which still requires legal malice.
Drawing on the wealth of ancient caselaw available to a Pennsylvania Supreme Court justice, Donohue quotes from an 1868 case for the proposition that malice is more than just standard ill-will, but rather a “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.” (quoting Com v. Drum, 58 Pa. 9 (1868)).
The Court proceeds to lay out the textbook examples of “depraved heart” murder—a defendant who fires a gun into a crowd may not intend to kill anyone, but his depraved heart is sufficient for a finding of malice; playing reverse Russian roulette where the player aims at his friend is still guilty of murder, even if he really was hoping this wasn’t the loaded chamber. In the present case, getting behind the wheel of the car after intentionally huffing a substance you know typically knocks you out—and then huffing it again while driving—is sufficient to prove the malice of your depraved heart, even if you didn’t “mean” to kill anyone.
There is a long line of Pennsylvania caselaw equating the mens rea necessary for third-degree murder with that of aggravated assault. The difference between these two substantive crimes is essentially what results from the actions of the defendant. If the victim dies, it’s third-degree murder; if the victim lives, it’s aggravated assault. In both cases, however, the malice of the defendant is the same. Drawing favorably on comparable situations in the aggravated assault setting, the Court shows how a Defendant’s inexcusable recklessness can rise to a level indistinguishable from intentional action, and how this level of malice is sufficient for a conviction under either statute, depending only on the victim’s life or death.
The Court distinguishes its prior DUI caselaw, stating “There is a significant difference between deciding to drive while intoxicated and deciding to drive with knowledge that there is a strong likelihood of becoming unconscious.” This case, Donohue explains, is more like playing Russian roulette: “the defendant is virtually guaranteeing some manner of accident will occur through the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others.”
Conclusion: DUIs are still not murder
The strong and thorough analysis in this case leaves little doubt that the Court is not trending toward treating DUIs as murder. Nonetheless, there are situations where an individual’s inexcusably reckless behavior could rise to the level of malice required for aggravated assault or “depraved heart,” third-degree murder. For now, such situations are limited to “immediate intoxicants” such as DFE; however, it is not beyond the pale to expect that prosecutors may soon be pushing the envelope in other cases.
This case’s language is narrowly-tailored to the facts, and it approves an appropriate punishment for someone who intentionally and willfully put lives at risk, and predictably killed another motorist. Hopefully the heightened consequences of such actions will cause some people to think before getting behind the wheel.