## Facts

- Warren Wesley Essex drove south on Route 28 in Fauquier County late at night while intoxicated.
- A trailing witness observed Essex repeatedly pass vehicles across solid and double-solid center lines, swerve across lanes and onto the shoulder, and narrowly avoid oncoming traffic over several miles.
- Essex ran a red light near the Route 17 intersection at an estimated 55 m.p.h., narrowly missing a tractor-trailer.
- About 1.5 miles later, Essex’s car crossed into the northbound lane and struck an oncoming pickup truck head-on; three occupants of the other vehicle died.
- Essex told the investigating trooper he was in the other driver’s lane because his steering “had gone,” but a mechanic found no steering defects.
- A hospital blood sample taken about 2.5 hours after the crash showed a BAC of 0.144%.
- A jury convicted Essex of DUI and three counts of second-degree murder; the trial court instructed on implied malice and also instructed on statutory BAC presumptions of intoxication.

## Issues

1. Whether intoxicated driving causing a fatal collision can, under sufficiently egregious circumstances, support a finding of implied malice required for second-degree murder rather than involuntary manslaughter.
2. Whether statutory BAC presumptions may be applied when the blood test was taken at a hospital and not pursuant to Virginia’s implied-consent procedures, and if erroneous, whether the error required reversal.

## Decision

- The Supreme Court of Virginia affirmed the DUI conviction and the three second-degree murder convictions.
- The court held that, in appropriate circumstances, extreme intoxicated driving accompanied by a sustained pattern of highly dangerous conduct can support an inference of implied malice sufficient for second-degree murder.
- The court held it was error to instruct the jury on statutory BAC presumptions because the hospital blood test was not obtained under the implied-consent statute.
- The instructional error was harmless given the independent evidence of intoxication and the prolonged, exceptionally dangerous driving behavior.

## Legal Principles

- Malice for second-degree murder may be implied from conduct so willful, wanton, and culpably dangerous that it shows a depraved disregard for human life, even without an intent to kill.
- Vehicular deaths generally constitute involuntary manslaughter when caused by gross negligence; they may constitute second-degree murder when the facts permit an inference of implied malice.
- Statutory presumptions tied to specified BAC levels apply only to chemical tests administered in conformity with implied-consent procedures; a hospital blood draw not taken under those procedures does not trigger the presumptions.
- A hospital blood test may still be admissible as evidence of intoxication even if the statutory presumptions do not apply.
- An erroneous instruction may be deemed harmless when the record shows the verdict was not affected by the error.

## Conclusion

The court upheld second-degree murder convictions arising from a fatal DUI collision, ruling that a jury may infer implied malice from sustained, extremely dangerous intoxicated driving, and it further held that implied-consent BAC presumptions do not apply to hospital blood tests, though the resulting instructional error was harmless on these facts.


Essex v. Commonwealth, 322 S.E.2d 216 (Va. 1984)