Manslaughter While Operating a Vessel

                                                                                         

Manslaughter While Operating a Vessel


Manslaughter is the unlawful killing of another person, without having the intention to kill (known as malice aforethought-a prior intention to kill). Manslaughter may be either voluntary or involuntary. Voluntary manslaughter is generally defined as a killing occurring upon a sudden impulse. Involuntary manslaughter is generally defined as an unlawful act which causes death, but would not ordinarily be expected to result in great bodily harm or death.

Deaths occurring as a result of operating a vessel while intoxicated result in manslaughter charges, authorized under California Penal Code Section 191.5, 192.5 and Harbor and Navigation Code Section 655. Vessels are types of vehicles that traverse the waterways. There is no requirement of an intention to kill, but rather a showing of reckless disregard for others in operating the vessel in an intoxicated state and/or operating in a reckless and gross disregard for the safety of others. Another way to look at it is that the vessel is operating as a deadly weapon. It may not be a gun or a knife, but when operated recklessly it is just as deadly. Thus, so long as the elements for manslaughter are proved, such a death will be prosecuted as a homicide.

Just what constitutes a vessel includes every description of watercraft capable of being used as a means of transportation on water, except for (1) seaplanes on water and (2) those watercraft which are specifically designed to operate on a permanently fixed course, the movement of which is restricted to a fixed track or arm to which the watercraft is attached or by which the watercraft is controlled. H & N 651 (aa)

The California Harbors and Navigation Code specifically addresses the use of alcohol and/or drugs while operating a vessel. Section 655 reads:

(b) No person shall operate any vessel or manipulate water skis,
an aquaplane, or a similar device while under the influence of an
alcoholic beverage, any drug, or the combined influence of an
alcoholic beverage and any drug.
(c) No person shall operate any recreational vessel or manipulate
any water skis, aquaplane, or similar device if the person has an
alcohol concentration of 0.08 percent or more in his or her blood.
(d) No person shall operate any vessel other than a recreational
vessel if the person has an alcohol concentration of 0.04 percent or
more in his or her blood.
(e) No person shall operate any vessel, or manipulate water skis,
an aquaplane, or a similar device who is addicted to the use of any
drug. This subdivision does not apply to a person who is
participating in a narcotic treatment program approved pursuant to
Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of
Division 10.5 of the Health and Safety Code.
(f) No person shall operate any vessel or manipulate water skis,
an aquaplane, or a similar device while under the influence of an
alcoholic beverage, any drug, or under the combined influence of an
alcoholic beverage and any drug, and while so operating, do any act
forbidden by law, or neglect any duty imposed by law in the use of
the vessel, water skis, aquaplane, or similar device, which act or
neglect proximately causes bodily injury to any person other than
himself or herself.

If a death results from the operation of a vessel by a person intoxicated, as described above, then that person is eligible to be prosecuted for gross vehicular manslaughter under Penal Code Section 191.4 and for vehicular manslaughter pursuant to Penal Code Section 192.5. Gross negligence is defined as carelessness which reflects a reckless disregard for the safety or lives of others. This disregard is so great that it appears to be a conscious violation of other people's rights to safety.

Penal Code Section 191.5 reads:

b) Gross vehicular manslaughter while intoxicated also includes
operating a vessel in violation of subdivision (b), (c), (d), (e), or
(f) of Section 655 of the Harbors and Navigation Code, and in the
commission of an unlawful act, not amounting to felony, and with
gross negligence; or operating a vessel in violation of subdivision
(b), (c), (d), (e), or (f) of Section 655 of the Harbors and
Navigation Code, and in the commission of a lawful act which might
produce death, in an unlawful manner, and with gross negligence.

The punishment for a conviction of gross vehicular manslaughter, while operating a vessel in an intoxicated state is punishment in the state prison for 4, 6, or 10 years.

Penal Code Section 192.5 reads:

“Vehicular manslaughter pursuant to subdivision (c) of
Section 192 includes:
(a) Except as provided in subdivision (b) of Section 191.5,
operating a vessel in the commission of an unlawful act, not
amounting to felony, and with gross negligence; or operating a
vessel in the commission of a lawful act which might produce death,
in an unlawful manner, and with gross negligence.
(b) Except as provided in subdivision (c), operating a vessel in
the commission of an unlawful act, not amounting to felony, but
without gross negligence; or operating a vessel in the commission of
a lawful act which might produce death, in an unlawful manner, but
without gross negligence.
(c) Operating a vessel in violation of subdivision (b), (c), (d),
(e), or (f) of Section 655 of the Harbors and Navigation Code, and in
the commission of an unlawful act, not amounting to felony, but
without gross negligence; or operating a vessel in violation of
subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors
and Navigation Code, and in the commission of a lawful act which
might produce death, in an unlawful manner, but without gross
negligence.

Manslaughter committed during the operation of a vessel ranges in punishment by imprisonment in the county jail for a period up to a year, to a term in the state prison for 2, 3, or 6 years.

About the author: Darren Kavinoky is the founding partner of The Kavinoky Law Firm, a criminal defense law firm with six offices throughout California. The attorneys of the firm take pride in their constant continuing legal education and unparalleled one-on-one client service. Every attorney at the firm particpates in ten times the amount of education required by the state bar. In addition, the attorneys provide each client with a personal cell phone number, and they make themselves available to clients at all times. The attorneys of The Kavinoky Law Firm understand that there is only one case that matters to you: yours! They are dedicated to treating each client with personal service to en Article Source: http://www.Free-Articles-Zone.com