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If you have been arrested for vehiclular manslaughter you need to get experienced representation.  This is a serious charge that will most likely lead to prison sentence.  You can prove extenuating circumstances to avoid prison.  I will be going through a case study of a recent case that I handled where the young lady was convicted of vehicular manslaughter and was given probation.

All cases are different and I cannot guarantee results as to particular cases.  However, in the case I will be discussing below you can see how the process works and what the court looks for in order to grant probation.   I will be discussing vehicular manslaughter without gross negligence.  I will discuss the gross negligence element in a seperate blog.



1. The defendant drove a vehicle in violation of Vehilce Code section 23140, 23152, or 23153,

2. Defendant drove the  vehicle in the commission of an unlawful act, not amounting to a felony, but without gross negligence


Defendant drove a vehicle in the commission of a lawful act which might produce death, in an unlawful manner but without gross negligence.

3. That unlawful act or negligent act was a cuase of the death of a human being. 


in sum, this means in order to be convicted of this crime the prosecution must prove that the underlying crime of driving under the influence was present .08 or above or they could have at least proven that they could convict you of what is commonly referred to as "wet reckless"

and the prosecution must be able to show that you committed a negligent act the proximate cause of which directly led to the death of another person, including a passenger.


If convicted you will recieve either probation usually with 365 days in jail, or you can recieve either 1, 2, or 4 years in the state prison depending on the mitigating factors related to both the defendant and the circumstances of the case. 


Many times before a Judge will alow probation in such a case is after a person is sent to prison on a 90 day diagnostic.  Just because it says 90 days does not mean that is how long you will spend in prison that is just what the statute allows for. What happens in the 90 day diagnostic is a peron will be observed in the prison setting and a report will be done by two counselors and the warden to determine if the person is a good candidate for probation or if the person should be in prison.  The counselors and warden then send a report to the Judge.  The Judge will make a final determination as to probation or to send the person to prison for a commitment.


in looiking at all these factors I will tell you about a case we handles and how these factors came into play.

First our client was above the legal limit and an accident occurred where one passenger lost his life and another passenger was seriously injured. Usually this would result in  a prison sentence.  However, we were able to show the passenger did not want the driver going to prison.  And that the driver was not grossly negligent, she simply missed a turn caused the one car accident, and a death resulted.  She was negligent but only slightly I.E. no gross negligence.  Further she had no prior record, had people that were willing to stand up in court for her and she was willing to do a 90 diagnostic evaluation at state prison. 

The evaluation came back from state prision with both the counselors and the warden agreeing that she could be rehabilitated through local probation.  She was given probation. 

If you have question give us a call 559-441-1418.

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Gerald Schwab, Jr.


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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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Phone: 559.441.1418