Premeditation or malice aforethought is a very specific state of mind that must be present for first degree murder eligible for the death penalty. There must be a specific intent to kill someone. A few years ago some kid in my town got juiced up and got the bright idea of throwing a frozen turkey from his car at an oncoming car. The turkey slammed into the windshield at the combined speed of the two cars-- probably 80-100 mph and crushed the drivers head and killed her. Even a deliberate and idiotic act like this did not arise to malice aforethought. In my mind, this act of total recklessness comes closer to the necessary requirement for malice than a drunk driver. There are thousands upon thousands of drunk drivers that have been arrested who didn't kill anyone. Yes, the probability that a drunk driver will kill someone is much much higher than the probability of a sober driver, but it is not as likely as the risk of death from throwing a boulder (i.e. frozen turkey) into the windshield of an oncoming vehicle. Malice aforethought is a very hard element to prove.