This study first reviews the Fourth Circuit's analysis of the common law concept of malice aforethought, which introduced the formulation of 'depraved disregard of human life' as the test for conduct demonstrating malice but which failed to specify those elements of Fleming's conduct meeting this standard. The author then discusses prior State court murder convictions for drunk driving and analyzes tests developed by the Model Penal Code to distinguish recklessness constituting manslaughter from recklessness sufficient to support a murder conviction. The author explains that although prior case law on homicides other than those caused by drunk drivers offers no easy test to differentiate varying degrees of recklessness, familiarity with these cases illuminates the characteristics of reckless behavior that constitutes malice. The study also examines public policy concerns implicated in convicting drunk drivers of second degree murder, listing some objective factors that must be balanced when evaluating the drunk driver's conduct. Finally, the author argues that murder convictions, with their accompanying long prison sentences, serve no effective deterrent purpose when the drunk driver's conduct is less wanton than that manifested in 'Fleming.' A total of 112 footnotes are provided.