When will a prosecutor be able to charge an intoxicated driver with murder and vehicular manslaughter?

When an intoxicated driver becomes involved in a fatal accident, a prosecutor may elect to charge the driver only with murder, without also charging any form of vehicular manslaughter. Because, under the majority's holding, trial courts may not instruct on vehicular manslaughter as a lesser included offense of murder, juries in these instances will face the difficult and troubling all-or-nothing choice between a murder conviction and an acquittal. Thus, the majority's decision will deny juries "the opportunity to consider the full range of criminal offenses established by the evidence." (People v. Barton (1995) 12 Cal.4th 186, 197, 47 Cal.Rptr.2d 569, 906 P.2d 531; see also People v. Birks, supra, 19 Cal.4th at p. 127, 77 Cal.Rptr.2d 848, 960 P.2d 1073.)