Impaired Driving & Vehicular Manslaughter - Next Generation Bar Exam

1. Police find a man asleep in the driver's seat of his parked car, engine running, with a 0.12 blood alcohol level. Under actual-physical-control rules, what offense may he have committed?

   Impaired driving. Being in the driver's seat with the engine running and the ability to drive establishes actual physical control.

2. Under Birchfield v. North Dakota, which test may police administer without a warrant incident to a lawful drunk-driving arrest?

   A breath test. A blood test requires a warrant or another exception, and states may not criminally punish refusal of a blood test.

3. Under the actual-physical-control approach used in many states, when may a person be guilty of impaired driving without moving the vehicle?

   When sitting in the driver's seat with the present ability to operate the vehicle. Factors include the location of the keys, whether the engine is running, and the person's position.

4. Under Missouri v. McNeely, what is the status of the natural dissipation of alcohol as a justification for a warrantless blood draw?

   It does not create a per se exigency. Exigency must be determined case by case under the totality of the circumstances.

5. What does a typical impaired-driving statute prohibit?

   Driving or controlling a vehicle while impaired by alcohol or drugs, or with a blood alcohol level at or above the per se limit. Statutes usually provide alternative impairment and per se theories.

6. What are implied-consent laws?

   Laws deeming drivers to consent to chemical testing, with license suspension for refusal. Refusal may also be admitted as evidence at trial in many states.

7. What causal link must the prosecution prove in a vehicular homicide case?

   That the defendant's driving was an actual and proximate cause of the death. Impairment alone, without causing the death, does not establish homicide.

8. What is vehicular manslaughter?

   An unlawful killing caused by operating a vehicle with gross negligence or while impaired. Statutes typically grade the offense by the driver's culpability and impairment.

9. What mental state is typically required as to impairment for a driving-under-the-influence offense?

   Typically, the offense is strict liability as to impairment. The voluntary act of driving or controlling the vehicle supplies the act requirement.

10. Under Mitchell v. Wisconsin, when may police usually draw blood without a warrant from a drunk-driving suspect?

    When the suspect is unconscious and must be taken to a hospital. Those circumstances almost always present an exigency.

11. What per se blood alcohol concentration limit do nearly all states use for adult drivers?

    0.08 percent. Utah uses a lower limit of 0.05 percent, and commercial and underage drivers face lower limits.

12. Under Berkemer v. McCarty, what is the custody status of a motorist during routine roadside questioning at a traffic stop?

    The motorist is not in custody for Miranda purposes. Miranda applies once the motorist is subjected to restraints associated with formal arrest.

13. When may an impaired driver who kills someone be guilty of murder in some jurisdictions?

    When the driving shows extreme recklessness, such as by a driver with prior convictions who knew the danger. Such cases rest on depraved-heart malice rather than vehicular manslaughter.

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