The defendant, while operating a motor vehicle during the nighttime upon the highway, collided with a backhoe parked on the opposite side of the highway where a trench was being dug. As a result of the collision one passenger was killed and injury occasioned to others including the defendant.
The defendant was taken to a hospital and was attended by a doctor who directed a medical technologist (an employee of the hospital) to draw a sample of blood for *1057cross-matching, in the event that a transfusion might be required. The technologist was directed by a police officer to take another blood sample for the purpose of making a blood-alcohol test. The alcoholic content of the blood was .13% by weight.
The defendant was tried and convicted of the crime of automobile homicide, a felony. He appeals claiming two errors: First, he asserts it was error to admit the result of the blood test into evidence; and Second, the court erred in instructing the jury regarding the amount of negligence required in the driving of his motor vehicle in order to make out the elements of the crime with which he was charged.
As to his first assignment of error the defendant relies solely upon the ease of Gibb v. Dorius.1 That case is of small value since it was decided by a divided court, three to two, and two of the three members who favored the decision are no longer with the court. It is also not controlling here for the reason that the extraction of the blood was done at the direction and under the supervision of defendant’s doctor. There is therefore no merit to that claim of error.
The next assignment requires a discussion as to the negligence with which the defendant drove and operated his vehicle. He does not contend that he was free from negligence in driving across the center of the highway and crashing into a backhoe on the opposite side of the road. He maintains that the driving must be in the nature of criminal negligence before he can be convicted.
The trial court instructed the jury as follows:
Instruction No. 6 provided:
Under the law of this State any person, while under the influence of intoxicating liquor to a degree which renders him incapable of safely driving a vehicle, who causes the death of another by operating or driving any automobile in a negligent manner on a public highway or street shall be deemed guilty of a felony.
Instruction No. 8 provided:
Negligence is the failure to use ordinary and reasonable care in the management of one’s property or person. It is the failure to do what an ordinary and reasonable person would have done under the circumstances, or the doing of what such person would not have done. The fault may lie in acting or in omitting to act.
The propriety or lack thereof of the above instruction depends upon the interpretation to be given to the following sections of our statute:
Section 76-5-201, as enacted L.1973, ch. 196, provides:
(1) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence unlawfully causes the death of another.
(2) Criminal homicide is murder in the first and second degree, manslaughter, or negligent homicide, or automobile homicide.
The relevant provisions of Section 76-5-207, under which defendant was convicted, specify:
(1) Criminal homicide constitutes automobile homicide if the actor, while under the influence of intoxicating liquor, a controlled substance, or any drug, to a degree which renders the actor incapable of safely driving a vehicle, causes the death of another by operating a motor vehicle in a negligent manner. [Emphasis added.]
It is to be noticed that the statute only requires that the vehicle be driven in a negligent manner. How does that square with Section 76-5-201(1) above where the actor acts with criminal negligence?
Criminal negligence is defined in Ballen-tine’s Law Dictionary as: “The neglect of a legal duty imposed either by statute or by the common law. . . . ” Our own court defined the term in State v. Lingman2 as *1058follows: “It must be reckless or in marked disregard for the safety of others. When it does that, it passes the stage of mere ma-lum prohibitum and approaches the unsocial aspects of malum in se.”
If a person entrusts the operation of his automobile upon the public highways to a six-year old child, he would certainly be guilty of something “more than a mere thoughtless omission or slight deviation from the norm of prudent conduct.” (State v. Lingman, above). The same would be true if he entrusted the operation of his car on the public highway to a person who is “under the influence of intoxicating liquor, to a degree which renders the actor incapable of safely driving a vehicle, . .” Likewise, it is also applicable if a person drives his own automobile while incapable of doing so because of being under the influence of intoxicating liquor.3
The following statement is found in each of the cases cited in footnote 4 below:
“When a person is doing anything dangerous in itself, or has charge of anything dangerous in its use, and acts with reference thereto without taking those proper precautions which a person of ordinary prudence would have used under the circumstances and the death of another results therefrom his act or neglect is a criminal act against the person so killed even though his negligence does not amount to a wanton or reckless disregard of human safety or life.”4
The driving of an automobile upon the highways of this state by one who is so inebriated that he cannot safely operate it is an act which is reckless and in marked disregard of the safety of others.
In the case of State v. Risk5 this court held:
It thus appears that the offense of automobile homicide may be made out by simple negligence in a person’s driving while under the influence of intoxicating liquor if as a result thereof he causes the death of another person.
Negligent homicide requires more than carelessness or simple negligence. Automobile homicide does not require that degree of negligence which this Court held to be requisite to constitute negligent homicide as stated in the case of State v. Lingman.
Since the element of criminal negligence is present in this case, the question of the propriety of the instruction given by the trial judge to the jury can be looked at in its proper light.
Once the question of driving under the influence of liquor is established, the crime of automobile homicide is made out by the death of another person by reason of operating the car in a negligent manner.6 It is to be observed that the mere negligent operation of the automobile by a person so drunk as to render him incapable of driving safely is all that is required.
The court correctly instructed the jury and the defendant was properly convicted. The judgment is affirmed.
CROCKETT, J., and ERNEST F. BALDWIN, Jr., District Judge, concur. HALL, J., does not participate herein.. 533 P.2d 299 (Utah 1975).
. State v. Lingman, 97 Utah 180, 91 P.2d 457 (1939).
. 76-5-207, U.C.A. 1953 (1975 Pocket Supplement).
. State v. Lewis, 91 P.2d 820, 824 (Nev.1939); People v. Marconi, 118 Cal.App. 683, 5 P.2d 974, 976 (1931); People v. Crossan, 87 Cal.App. 5, 261 P. 531, 533 (1927); People v. Wilson, 193 Cal. 512, 226 P. 5 (1924).
. 520 P.2d 215 (Utah 1974).
. 76-5-207, U.C.A.1953 (1975 Pocket Supp.).