that by its nature involves a substantial risk that physical force against the person or property of another may be used in committing the offense the supreme court in november to file of the case about the first is whether there is an intentional risk of physical force in the crime for example is the crime more like burglary or for example there's another board case matter of sweets or where a boy died when his father was inattentive to the boy in the pap and in that case they decided even though there was risk of harm there was no force and that changed and because of the lack of physical force vick case was on the crime of violence even though terrible things happened in the case and after the court make the analysis of whether there's an intentional risk of physical force then and if it finds that there is then this whole issue of clients be liable for the criminal charges i think the issue in the case would be whether the whether there is a sixteen be serious whether there was violence that was would need to of the be the elements of actual harm the potential for actual harm resulting from that case would be closer than this case the theoretical case because in this supreme court instructed that there are no need to be some kind of intentional act and reserve whether recklessness is a proxy for an intentional act or potential intentional act and in this case  the element after the unlawful killing is the driving and driving under the influence would be the third element and then the killing was the proximate result of drunk driving and the gross negligence and the issue in the case then becomes under the first prong here is whether what is the crime can be committed whether when a person is obviously when the person hit somebody driving but are there other ways in the minimal definition of the crime under a categorical approach where a person can be convicted of this crime and i posit that if he were to for example have been drunk and parked his car in a dangerous place and then people died let's say on the beach in little time then that would be a possibility of a conviction under that crime because it would mean all the elements because the killing would have been approximate result of a drunk driver and in sweeter is a good example of that where there was dangerous activity and def but the minimal activity  involved wasn't the kind that would impact sixteen v and the new york only in the second circuit decided in a similar vein that recklessly causing the death of another person sufficient for conviction and that would mean but for example leaving those in by a pool which is the analog to sweets or we're not going through speeding to provide medical care for somebody  or driving drunk with an a t v are all cases where there would be no use of force under the concept of sixteen and therefore it's important to clarify at the outset exactly what this case is about it is not about a conviction for driving under the influence under the california vehicle code that is the issue that was decided by the supreme court and i know how and why alcohol decision i what do you do when when you know you say you know no ordinary or natural sense cannot be said that a person risks having to use physical force against another person in the course of operating a vehicle while intoxicated and language well what this court has said is that when and that's why i think it's important to focus on the fact that this is a conviction for manslaughter and the california supreme court distinguished a conviction for vehicular manslaughter from now supreme court said he didn't use force in the commission of his crime i think that's why i think it's important to distinguish between land tell which was a conviction under a drunk driving a right thank you thank you aforethought and it seems to me that it's important that that you're saying right from the beginning when you say without when they say without malice aforethought that there's no element of inten it as it is with the different parts it becomes even more different difficult because they say without malice at the beginning and then with gross negligence at the end but i think if the court is looking for the proxy for the extent under but point out that there is a subtle distinction between a degree in gross negligence is very subtle because i think anybody if you suffer the loss of somebody who is hit by somebody in the car you would call it reckless w it's all a question of i think in the eye of the victim whether he considers it recklessness or for negligence or gross negligence but i think in the law they make that distinction it's as though as a proxy for inten