4. If the bar patron is prosecuted for manslaughter, his best chance for acquittal would be based on an argument that

Manslaughter is a killing committed with criminal negligence or during the commission of an unlawful act. The term «reckless» essentially describes a defendant's simultaneous understanding and disregard of a substantial risk of harm. An involuntary manslaughter charge can be brought against a defendant as a result of a deadly car crash caused by a motorist under the influence of alcohol or drugs. While the defendant never intended to kill anyone, his or her negligence in driving while impaired is enough to meet the requirements of the charge. Criminal liability for manslaughter, however, requires a causation element. The usual method of establishing factual causation is the but for test. The but for test asks whether the harm wouldn't have occurred ‘but for' the defendant's act?

B is correct. This answer choice addresses the causation element and gives the defendant the best chance of acquittal. The bar patron's best argument for acquittal is that the accident would have occurred even if the bar patron had not been intoxicated. As such, the defendant's reckless action (drunk driving) giving rise to the manslaughter charge was not a cause in fact ('but for' cause) of the other driver's death. Because the action that the bar patron took was not a cause in fact, he cannot be convicted of manslaughter.

A is incorrect. Contributory negligence is a civil issue and does not apply to criminal manslaughter cases.

C is incorrect. Voluntary intoxication is only a defense to specific intent crimes such as first degree murder, inchoate crimes, assault, and theft crimes. Voluntary intoxication, however, does not apply to crimes involving criminal negligence, such as manslaughter. The bar patron's argument that he was too intoxicated to be criminally negligent will not succeed.

D is incorrect. For a manslaughter charge, a defendant can have committed a killing with criminal negligence OR during the commission of an unlawful act. The argument that the bar patron did not commit manslaughter by virtue of there being no underlying misdemeanor ignores the possibility that the bar patron committed manslaughter by virtue of carrying out a criminally negligent act. Therefore, this is an ineffective defense. The bar patron's best chance for acquittal is to argue that, because the collision would have occurred even if the bar patron had not been intoxicated, the criminally negligent acts he took were not the cause in fact of the death.