Murder in the second degree is often also referred to as manslaughter. Second degree murder is the killing someone without premeditation and intent or during the commission of certain crimes including:

• causing the death of a human being while committing or attempting to commit a drive-by shooting. (A drive by shooting with less culpability than in a first degree case);
• causing the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force;
• causing the death of a human being without intent to effect the death of any person, while intentionally inflicting or attempting to inflict bodily harm upon the victim, when the perpetrator is restrained under an order for protection and the victim is a person designated to receive protection under the order.

These unintentional murders carry with them penalties of up to 40 years in prison and significant fines.

Murder - Homicide in the Third Degree

Murder in the third degree is killing someone without premeditation and intent through inherently dangerous acts without regard for human life. Inherently dangerous acts specifically include directly or indirectly, providing a controlled substance to another resulting in death.

A person that is found guilty of murder in the third degree may be sentenced to imprisonment for not more than 25 years and a payment of a fine of not more than $40,000.

Criminal Vehicular Homicide

Criminal vehicular homicide is causing the death of another person as a result of negligently operating a motor vehicle. This may mean operating a motor vehicle while intoxicated or under the influence of drugs as well as operating a motor vehicle negligently.

A person that is found guilty of criminal vehicular homicide resulting in death may be sentenced to imprisonment for not more than ten years and to payment of a fine of not more than $20,000.

Criminal Vehicular Operation

A derivative of criminal vehicular homicide is criminal vehicular operation. This is defined as the negligent use of a motor vehicle resulting in great bodily harm to another. A person convicted of criminal vehicular operation may be sentenced to imprisonment for not more than five years and to payment of a fine of not more than $10,000.

A person may also be found guilty of criminal vehicular operation if the negligent driving conduct results in injury to an unborn child who is subsequently born alive. The sentence of someone so convicted may include imprisonment for not more than five years and to payment of a fine of not more than $10,000.

Defenses

Defenses may vary depending on the level of the charge. However, there are systemic advantages that fall in a defendant's favor.

Our legal system was designed to allow guilty people to go free rather than jailing the innocent. This does not always work in practice. However, it does mean that a defendant in a criminal case does not have to a prove a thing. All people accused of a crime presumed under law to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This means that the burden of proving guilt falls on the prosecutor and that the defendant need not say or do anything in his own defense. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.

A defendant must only prove that one of the many elements that make up the charge is deficient, meaning that the prosecution has not proved that element beyond a reasonable doubt to ALL jurors. Remember, a jury consisting of 12 members must be unanimous in finding guilt. This standard is very hard to meet.

Insanity

Not guilty by reason of insanity is a difficult defense. In order to prevail, a defendant must prove that he/she could not tell right from wrong at the time of the incident resulting in death because of mental illness. This is also referred to as the M'Naughten formula for insanity. Mental illness such as schizophrenia and paranoia may provide a defense.

Rage

A claim that horrendous events provoked extreme and irrational rage may also be used to claim insanity. However, such a defense is more likely to attack the element of whether premeditation existed in first degree cases or whether the defendant acted on emotion supporting a second degree charge.

Intoxication

Intoxication is not a defense to a crime by itself, but, in rare cases, can prevent a person from being guilty because he or she can not form the necessary intent to commit a crime. For example, someone who is intoxicated probably cannot commit a crime that requires he or she act intentionally, but the intoxicated person may be guilty of another crime that does not require intentional actions.

Legal Use of Drugs

It is an affirmative defense to charges relating to drug use that the defendant used used the controlled substance according to the terms of a prescription issued for the defendant.

Self Defense

Self-defense claims are made when a defendant agrees that act resulting in death occurred, but claims that it was justified by the other person's threatening actions. A jury must decide that the person accused of the crime acted reasonably. The questions which must be asked include:

• Who was the aggressor?
• Was the defendant's belief that self-defense was necessary a reasonable one?
• Did the defendant use only the force necessary to combat the aggressor?

Defense of Others

Defense of Others claims are similar to self defense claims. When making such a claim, a defendant agrees that act resulting in death occurred, but claims that it was justified by the other person's threatening actions to a third person. Again, to succeed, a jury must determine that the defendant acted reasonably under the circumstances.

Alibis

Credibility

One of the best and most common defenses is to challenge the credibility of witnesses including the police. A good attorney will examine all aspects of a witnesses statements, the inconsistencies and the omissions. Witness testimony may be undermined by prior inconsistent statements or rebuttal witnesses that tell a different story.

What can I do?

In any criminal case it is very important to preserve evidence before it gets cold. That means you should hire an experienced and aggressive attorney for your representation as soon as possible. If you do not, your rights could be impaired. A lawyer will examine:

• Were your constitutional rights were violated?
• Was evidence illegally or improperly seized and maintained?
• Was an arrest made that violated your 4^thamendment rights against unreasonable search and seizure?
• Did the police explain your right to be silent before you were questioned?
• Was there a proper chain of custody for the evidence seized?

An investigation must be performed which would involve photographing the scene, examining critical evidence and interviewing potential witnesses while their memory is fresh. (A defendant cannot perform these functions by themselves since they may be viewed as tampering with a witness).

For a consultation call (612) 240.8005.