South Carolina Law Review
In recognition of the increasing use of felony-murder statutes to prosecute drunken drivers who kill, this Article considers various criticisms and defenses of the felony-murder rule as they apply specifically to felony DWI cases. Part II of this Article discusses several recent precedent setting cases in which drunken drivers who killed were prosecuted under felony murder statutes. Part III explores whether such prosecutions are proper, given the existence of special narrower vehicular manslaughter provisions that a legislature might have intended to be the sole means of prosecuting drunk drivers who kill. Part IV discusses three particular limiting doctrines-merger, inherent dangerousness, and res gestae-as applied to cases in which felony DWI is the basis for a felony murder charge. Part V explores the culpability of the repeat offender drunken driver who kills. Although felony murder and felony drunken driving are both often described as "strict liability" offenses, this part concludes that the repeat-offender drunk driver demonstrates a degree of culpability that is not dissimilar to the culpability of defendants who have committed felonies, such as robbery and arson, that have traditionally been accepted as predicates for felony murder. Part VI argues that even if prosecution of repeat DWI offenders is permissible under felony murder rules, legislatures should revise driving while intoxicated statutes to impose murder liability directly. Driving while intoxicated statutes that impose murder liability directly, rather than allowing indirect imposition through the felony murder statutes, would help ensure that only the most culpable DWI offenders are punished for murder, and would also help promote a sense of fairness and respect for the law. The Article concludes that although felony murder prosecution of drunken drivers who kill and who have previously been convicted of a DWI offense is within the bounds of the felony murder doctrine, legislatures should—in the interest of fair notice—revise penal codes to make clear that drunken drivers who kill are subject to prosecution not only for manslaughter but also for murder.
Dora W. Klein, Is Felony Murder the New Depraved Heart Murder: Considering the Appropriate Punishment for Drunken Drivers Who Kill, 67 S. C. L. Rev. 1 (2015).