NEW BETHLEHEM — Believing Kyle Bailey was too drunk to drive, good friend Jeremy Slaugenhoup allegedly argued to drive his friend home.

When Bailey refused to give up the keys to his all-terrain vehicle, Slaugenhoup and another friend allegedly followed the 22-year-old Parker man from a bar, down Route 368 toward his home.

And when it became clear Bailey wasn’t driving well, Slaugenhoup allegedly signaled his buddy to pull over and became his passenger.

Minutes later, Bailey — who investigators allege was speeding and nearly three times the legal alcohol limit for driving — hit a tree stump on Keefer Road. His Polaris RZR-15 side-by-side rolled. And 28-year-old Slaugenhoup suffered head injures that would cause his death three days after the Sept. 7 crash.

In what attorneys agree is an unusual move, Clarion County prosecutors are charging Bailey with third-degree murder.

“Malice is an element to murder,” said defense attorney Ralph Montana of Clarion. “There is no way he (Bailey) had malice in his heart or intended to harm one of his best friends,”

Montana said Bailey, “is exceedingly remorseful and very distraught ... These young men were the best of friends.”

In addition to that close friendship, Montana said, if you believe the state police correctly documented the amount of alcohol in Bailey’s blood at the time of the collision, it’s unlikely his client had the ability to form the necessary intent or hardness of heart.

Under state law, malice can mean hardness of heart or reckless disregard for human life. In addition to that element, another major difference between the murder charge and a charge of homicide by vehicle while drunken driving is the potential penalty.

A person convicted of homicide by vehicle while drunken driving is likely to be sentenced to 3 to 6 years in prison. A person convicted of third-degree murder can serve up to 20 to 40 years in prison.

Bailey is charged with both crimes as well as involuntary manslaughter, two counts of drunken driving, reckless endangerment and more than a half-dozen driving violations.

“The key difference is based on his behavior that constitutes legal malice,” Clarion County District Attorney Mark Aaron said of his decision to add the murder charge. “The defendant was asked on more than one occasion not to drive. He refused to let another individual drive that vehicle.”

Court records say at least one other person argued with Bailey in an attempt to get his keys that night.

According to court records, Bailey told state police that he didn’t want someone else to drive the 2015 ATV “since it was a brand new vehicle.”

Bailey’s preliminary hearing is set for Jan. 6 before District Judge Jeffrey C. Miller in New Bethlehem.

Bailey, who was employed by a manufacturing company, is in the Clarion County Prison without the possibility of posting bail. However, a hearing to determine what, if any, bail should be set in the case is scheduled for Monday before Clarion County Judge James Arner.