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Tragic Metro Death Crash Scene Described – What Degree of Murder is it?

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KOCO.com is reporting new details about the tragic automobile crash that took the life of a 5 year-old and has left a 2 year-old in critical condition at an Oklahoma Hospital.

The report quotes eye witness Jim Glover as saying “It was devastating. I’m still shaking, and it’s three hours later.”

According to Police, James David Opp, 61, was behind the wheel of a pickup truck that slammed into a car that was stopped at a stop light along an Interstate 240 service road. However, that is not the most shocking detail. According to the report, police immediately noted that Opp had “an odor of alcoholic beverage on his breath” with “bloodshot, watery eyes and very slurred speech.” Opp refused to submit to a blood test at the scene but one was later taken by a nurse given the severity of the crash.

The article also quotes Opp as saying “just kill me now” when officers told him he had just killed a 5-year-old child.

As a parent of a six (6) year-old child I can unequivocally state that I have no sympathy for Mr. Opp. The only question in my mind is if he is found guilty of drinking and driving, what murder charge should he face?

I will readily admit I am not a criminal lawyer and would welcome any dispute as to my hurried look at Oklahoma murder statutes. However, a cursory look at Oklahoma Stat. Tit. 21 § 701.1 (B) defines murder as

person also commits the crime of murder in the first degree, regardless of malice, when that person or any other person takes the life of a human being during, or if the death of a human being results from, the commission or attempted commission of murder of another person, shooting or discharge of a firearm or crossbow with intent to kill, intentional discharge of a firearm or other deadly weapon into any dwelling or building as provided in Section 1289.17A of this title, forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, eluding an officer, first degree burglary, first degree arson, unlawful distributing or dispensing of controlled dangerous substances, or trafficking in illegal drugs.

A cursory glance would suggest that Oklahoma statutes would not allow a charge of First Degree Murder. The next step would be to see whether a charge of Second Degree Murder is appropriate. Oklahoma Stat. Tit. 21 § 701.8 defines second degree murder as

Homicide is murder in the second degree in the following cases:

1. When perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; or

2. When perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in Section 1, subsection B, of this act.

It is clear that Mr. Opp was engaged in a felony and as such a Second Degree Murder charge may be appropriate. Those convicted of second degree murder face at least 10 years in prison and may face life if the Court so decides.

The wonderful thing about American jurisprudence is that Mr. Opp’s fate will be decided by a jury of his peers. In a day and age when the legislature seems more willing than ever to take issues out of the hands of a jury, It may be that we are engaging in pure speculation and Mr. Opp simply made an error and omission in driving. However, reports seem to suggest that he chose to drink and drive and made a colossal blunder that resulted in the death of a five (5) year-old boy. Our society cannot accept individuals engaging in such behavior.

The effects and consequences of drinking and driving are well known. One cannot plead innocent when they make the choice to drink and drive and in situations such as this. Instead, they knowingly take aim at others with a dangerous weapon (an automobile) and the innocent can only hope they miss their target. Sadly, Mr. Opp did not miss.