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Vehicle Code 23153 – DUI With Injury

Vehicle Code 23153(a) & (b) encompasses the two DUI with injury statutes.  For each statute there are four elements of the offense.  In order to find the defendant guilty of this offense, each of the four elements must be proven by the prosecution by proof beyond a reasonable doubt. The first two elements are identical to the DUI non-injury statute, 23152(a)(b). The last two elements distinguish the DUI injury statute, and are not commonly known to the general public.  The first two elements of 23153(a) & (b) are as follows:

The prosecution must show, by proof beyond a reasonable doubt that:

(1) The defendant drove a vehicle;

(2) When (he/she) drove a vehicle/operated a vessel), the defendant was under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug] CALCRIM NO. 2100

  1. Or if the prosecution is charging 23153(b), then element #2 would be:

(3) When (he/she) drove, the defendant's blood alcohol level was 0.08 percent or more by weight.  CALCRIM NO. 2101

In essence, the prosecution has to prove the same case they would if there was no injury involved.  In order to escalate it to DUI with injury case, and thus increase the consequences greatly they must also show, by proof beyond a reasonable doubt, that:

(1) While (driving a vehicle/operating a vessel) [under the influence] or [with that blood alcohol level], the defendant also (committed an illegal act/ [or] neglected to perform a legal duty) CALCRIM No. 2100 & 2101 AND:

(2) The defendant's (illegal act/ [or] failure to perform a legal duty) caused bodily injury to another person.

Here is what you need to know about these elements:

(1) While (driving a vehicle/operating a vessel) [under the influence] or [with that blood alcohol level], the defendant also (committed an illegal act/ [or] neglected to perform a legal duty) CALCRIM No. 2100 & 2101

  1. It is not enough that the defendant was under the influence or above 0.08% and he/she was involved in an accident where an injury occurred.  The prosecution has to prove that the defendant was a cause of the accident. He/she had to have:
    1. i. Committed an illegal act; or
    2. ii. Neglected to perform a legal duty.
    3. If the defendant is accused of committing an illegal act, the prosecution has to allege which act and the elements of that offense need to be read to the jury.
      1. i. Example: If the prosecution alleges that the defendant was speeding, the district attorney must allege speeding, and the jury must agree.
    4. If the defendant is accused of neglecting to perform a legal duty, the prosecution must allege which duty was neglected, and the jury must agree.
    5. The prosecution can allege that what was neglected was the general duty of every driver to exercise ordinary care. (People v. Oyaas (1985) 173 Cal.App.3d. 663, 669)
      1. i. In this situation the court should define Ordinary Care as: “reasonable care to prevent reasonably foreseeable harm to someone else. A person fails to exercise ordinary care if he or she (does something that a reasonably careful person would not do in the same situation/ [or] fails to do something that a reasonably careful person would do in the same situation).] CALCRIM No. 2100 & 2101
    6. In situations where there multiple illegal acts or neglected duties alleged, the prosecution must allege them all.
      1. i. There is a split of authority on whether the court must instruct the jury that they must all agree which illegal act or neglected duty occurred.  This is obviously an opportunity for the defense to argue that the jury needs to all agree on which occurred, after all every other decision the jury makes must be unanimous, why not this one?
    7. The key point to remember with this element is that the prosecution has to show that the defendant did more than just drive impaired; they have to show the defendant was a cause of the accident.

(2) The defendant's (illegal act/ [or] failure to perform a legal duty) caused bodily injury to another person.

  1. If the prosecution can prove that an illegal act or neglected duty occurred, they also must show that it was the cause of the injury.
    1. i. This element is defined as follows: “An act causes bodily injury to another person if the injury is the direct, natural, and probable consequence of the act and the injury would not have happened without the act.  A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.” CALCRIM No. 2100 & 2101
      1. This is where the conduct of the injured party or another party comes into play.  Was the injured party not wearing a seat belt, or did another car involved or an object cause the injury?
        1. If something unusual occurred that led to the injury, then a strong argument can be made that the defendant did not cause the injury.
        2. Keep in mind; it is not a question of the cause of the accident, but the injury.
  2. ii. If it is a situation where there were multiple causes of the injury, then the prosecution must prove that the defendant was a “substantial factor” in causing the injury.
  3. Substantial Factor is defined as “more than a trivial or remote factor. However, it need not be the only factor that causes the injury.” CALCRIM 2100 & 2101

Other issues with DUI with Injury cases:

(1) As with Non-Injury DUI, a valid prescription is not a defense.

(2) If there was an additional cause of impairment, such as seizures or sleepiness, it is not a defense if the defendant was also under the influence.

  1. In other words, if the individual was under the influence of a drug, they cannot blame an epileptic seizure for the poor driving or the accident.

(3) Penalties:  DUI with injury is a wobbler offense, meaning it can be charged a misdemeanor or a felony.  Generally, the severity of the injury will be the deciding factor of the prosecution on whether a misdemeanor or felony is charged.

  1. If it is a misdemeanor it comes with a maximum of one year in jail and/or a fine.
    1. i. Depending on the facts of the case, this can sometimes be served through ankle monitoring or another alternative sentence.
    2. If it is a felony it is a minimum of 16 months- 3 years in state prison, if no probation is granted.
      1. i. If probation is granted, local county jail time is possible, as well as ankle monitoring or another alternative sentence.
      2. The prosecution can also allege a “Great Bodily Injury” enhancement.
        1. i. Great Bodily Injury is defined as “significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” CALCRIM No. 3160; Penal Code 12022.7
        2. ii. This is a significant enhancement, it adds 3 years to any sentence for each party that suffered great bodily injury.
          1. For example, in an auto accident where the defendant is accused of injuring two people with great bodily injury, it adds 6 potential years to the sentence. Three for each person.
          2. iii. This enhancement also has the effect of turning it into a strike offense, within the meaning of California's Three Strikes Law.  This means that if the defendant is sentenced under this statute, they would serve 85% of the time they were sentenced too.
          3. iv.  This enhancement does not preclude probation. It is not uncommon for the prosecution to allege the Great Bodily Injury enhancement, have the defendant plead to the charge with a sentence of one year local jail/ankle monitoring/alternative sentence; and then have the balance of the time hanging over the defendants head on felony probation.  The defendant's criminal record and the facts obviously have to justify this sentence.

Resources & References:

Great Bodily Injury

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