Man convicted of second degree murder of his son in DWI accident

April 16, 2013

Man convicted of second degree murder of his son in DWI accident

Article provided by Plumides Law Office PC
Visit us at http://www.plumideslaw.com

In September 2010, James Marslender was driving with his son on Highway 24 in Onslow County, North Carolina. It was raining and his truck spun out of control and crashed into a tree. His five year old son was killed. Police officers that were called to the scene testified that Marslender "smelled like beer." Marslender failed a number of field sobriety tests and was administered a blood test to determine his blood alcohol level. The test revealed a blood alcohol content of .12 -- well over the legal limit. Police also said the child was not properly restrained in the vehicle and the cause of death was determined to be severe head trauma.

At trial it was revealed that Marslender had a history of drunk driving and had two previous DWI convictions. During Marslender's cross examination, it also became known that in 2008 there was an incident in which he drove his child and two other minors after consuming alcohol. The jury found Marslender guilty of driving while impaired and of second-degree murder. The court sentenced him to 144 months to 182 months in prison.

Marslender's appeal

Marslender appealed the conviction, alleging that the trial court erred when it:
-Denied his motion to dismiss the second-degree murder charge because the state failed to introduce substantial evidence that his act was the proximate cause of his son's death
-Allowed the prosecution to impeach him with his prior DWI convictions and the 2008 incident

The North Carolina Court of Appeals upheld the conviction. The appellate court found that the State did present enough evidence to show that his drunk driving was the proximate cause of his son's death. The state produced an eye witness of the accident that testified she saw the car crash into the tree and assumed it was because the driver overcorrected and spun out of control. According to the appellate court, the jury could reasonably infer that Defendant's impairment caused him to overcorrect and thus was the proximate cause of his son's death.

The appellate court also found that the prosecution did not improperly impeach the Defendant with evidence of his prior convictions. The evidence was used to show malice, which is acceptable under the law.

North Carolina DWI laws

North Carolina's DWI laws are some of the strictest in the nation. If you have been arrested for a drunk driving offense, contact an experienced North Carolina DWI attorney to protect your freedom.