Driving Under the Influence

DUI cases are rarely hopeless. Police officers bungle roadside investigations. Breathalyzers and blood testing are prone to error. Medical conditions render falsely high BAC readings. Good DUI defense lawyers capitalize on these issues to win cases.

Most people arrested for a California DUI charge assume the evidence against them is insurmountable.

Most of them are wrong.

Fighting a DUI case almost always makes more sense than simply pleading guilty. For example, did you know that…

More than 100 interfering substances, medical conditions and equipment malfunctions can cause DUI breathalyzers to generate falsely high readings?
DUI blood testing is prone to error. When we re-test clients’ blood samples at independent laboratories, we frequently get different results…and sometimes find that the original sample was contaminated?
Police officers are supposed to follow a standardized set of procedures in DUI roadside investigations…and very few of them do?

Our team of DUI attorneys defend cases ranging from simple misdemeanor DUI to DUI causing injury, felony DUI, vehicular Manslaughter and gross vehicular manslaughter.

If you got arrested for DUI, we invite you to join us for a case analysis with a DUI Lawyer. We want to start by hearing from you everything that happened leading up to, during and after the arrest. We’ll give you our candid opinion as to the likelihood of prevailing in court and at the DMV.

Misdemeanor DUI

In California, driving under the influence is a misdemeanor if (1) it is a first, second, or third DUI (or wet reckless) within ten years, (2) no one was injured, and (3) the driver has no prior felony DUI convictions.

Under Vehicle Code 23152 it is unlawful for a person to drive a vehicle who is:

under the influence of any alcoholic beverage or drugs, OR
has .08 percent or more of alcohol in his or her blood.

A person is under the influence of alcohol or drugs if:

his or her physical or mental abilities are so impaired,
that he or she cannot drive with the caution of an ordinary, sober person,
under the same or similar circumstances. People v. Canty (2004) 32 Cal.4th 1266.

The punishment for a misdemeanor DUI conviction can include:

probation for three to five years,
up to one year in jail,
home detention or work release (in some counties),
fines and fees totaling several thousand dollars,
alcohol and drug education classes,
installation of an interlock ignition device,
driver’s license suspension or restrictions (by the DMV).

In some misdemeanor DUI cases penalties can be increased if:

the driver refused to take a chemical test,
the driver’s blood alcohol level was over .15%,
a passenger was under 14 years of age,
the vehicle was being driven 30 MPH or more over the speed limit on a freeway (20 MPH on streets or highways).

Are There Legal Defenses to a Misdemeanor DUI Charge?

Yes. Depending on the specific case, there are a variety of defenses that can be raised when fighting misdemeanor DUI charges. These defenses include:

no probable cause for police to stop the driver,
driver not under the influence,
procedural violations by law enforcement,
the officer did not see driving.

Please note that in the normal misdemeanor case a police officer cannot arrest a person unless:

the offense was committed in the officer’s presence, OR
the officer has a warrant (see Penal Code 836).

However, under Vehicle Code 40300.5 there are statutory exceptions to the Penal Code 836 requirement for DUI’s. These exceptions include:

the person was involved in a traffic accident,
the person is observed in or about a vehicle that is obstructing a roadway,
the person will not be apprehended unless immediately arrested,
the person may destroy or conceal evidence of the crime unless immediately arrested,
the person may cause injury to himself or herself, or damage property, unless immediately arrested.

When is DUI a Felony in California?

Driving under the influence is a felony in California if:

it is a fourth DUI (or wet reckless) within ten years,
someone was injured (besides the driver),
the driver has a prior felony DUI.

Vehicle Code 23153 refers to DUI causing injury. This section states that:

It is unlawful for a person, while under the influence of any alcoholic beverage or drug, to drive a vehicle and do any act which causes bodily injury to any person other than the driver.

To qualify as bodily injury, the victim must be more than simply shaken up or frightened. But it is not a high standard. For example, in one California case a pulled muscle was enough bodily injury to show that felony driving under the influence occurred. People v. Lares (1968) 261 Cal. App. 2d 657.

Please note that negligently or illegally causing bodily injury while DUI can be filed as either a felony OR a misdemeanor. This type of crime is known as a “wobbler.” The district attorney makes a filing decision based upon:

the facts of the individual case,
the extent of any injuries,
the driver’s prior record.

The punishment for a felony DUI can be:

up to three years state prison,
fines and fees,
alcohol and drug education classes,
driver’s license suspension or restrictions by the DMV.

Certain felony “sentence enhancements” can add even more potential prison or jail time on felony DUI charges. For example:

Jason has never been arrested before. He goes to a casino, drinks five beers, then drives home. A car in front of him stops suddenly and Jeremy hits it. Three people are injured. One of the victims is 73 years old. With felony DUI enhancements, Jason is facing ten years in state prison:

three years for felony DUI causing injury,
a one-year enhancement for each additional victim (Vehicle Code 23558).
a five-year enhancement for causing great bodily injury on a victim over 70 years old (Penal Code 12022.7(c)).

Call us for a free attorney consultation

DUI Causing Injury

California Vehicle Code 23153 VC defines the crime of “DUI causing injury” as driving under the influence and causing bodily injury to another person as a result. Prosecutors may charge this section as either a misdemeanor or a felony.

Vehicle Code 23153 VC reads: “(a) It is unlawful for a person, while under the influence of any alcoholic beverage to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. (b) It is unlawful for a person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. . . . (e) It is unlawful for a person, while under the influence of any drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. “

For purposes of this section, “driving under the influence” can mean any of:

Vehicle Code 23152(a) driving under the influence;
Vehicle Code 23152 driving with a blood alcohol content (BAC) of 0.08% or higher; or
Vehicle Code 23152(f) driving under the influence of drugs

In order to help you better understand the legal definition of California “DUI causing injury“, our California DUI defense attorneys will address the following:

If, after reading this article, you have additional questions, we invite you to contact us at Made Law Group.

1. How Does the Prosecutor Prove that I am Guilty of a DUI Causing Injury?

In order to convict you of California Vehicle Code 23153 VC “DUI causing injury,” the prosecutor must prove three facts (otherwise known as “elements of the crime”):

you were violating California’s DUI laws,
while doing so, you broke an additional law or acted in an otherwise negligent manner while driving, and
your unlawful act or negligence injured another person.²

You violate California’s DUI laws by EITHER:

driving under the influence of alcohol (that is, driving while your mental or physical abilities are impaired by alcohol),
driving with a blood alcohol content (“BAC”) of 0.08% or greater, or
driving under the influence of drugs, or a combination of drugs and alcohol.³

It should be noted that if you were driving a commercial vehicle, the prosecutor need only prove that you drove with a BAC of 0.04% or greater.

Let’s take a closer look at these elements to better understand the offense.

That you drove “under the influence” or “with a BAC of 0.08% or greater”

If you are “under the influence” for purposes of DUI with injury law, it means that “your physical or mental abilities are impaired to such a degree that you no longer have the ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.”

With respect to driving under the influence of drugs (California Vehicle Code 23152f), the drugs may be illegal, prescription, or even over-the-counter.

Driving “with a BAC of 0.08% or greater” is what’s known as the “per se” law. This is because California DUI law presumes that if your BAC is 0.08% or greater at the time of your blood or breath test, you are guilty of DUI (and therefore can be guilty under VC 23153)–regardless of whether you were actually under the influence of alcohol and/or drugs.⁶

Your blood alcohol concentration (or “BAC”) is present in your bloodstream. It is measured as grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

That you broke a law or otherwise acted in a negligent manner

California DUI law under Vehicle Code 23153 VC provides that you must (1) act in a negligent manner, or (2) break a law in addition to driving under the influence. This means that it must be your act or negligence that causes the other person’s injury.

Here’s an example to illustrate the point.

Example: John, who is “buzzed” while driving home from a party, gets rear-ended by Steve, who cut his head on the windshield during the accident. Under these circumstances, prosecutors could charge John with “DUI causing injury.”

However, John’s California DUI defense attorney would argue that Vehicle Code 23152(a) misdemeanor DUI would be a more appropriate charge…since the accident and injury weren’t caused by John.

BUT: If John was speeding while buzzed and he rear-ended Steve, prosecutors would likely maintain that a “DUI with injury” under VC 23153 would be the appropriate charge, because

he sped while driving under the influence, and

his speed led him to rear-end Steve, causing Steve’s head injury.

2. What are the Penalties for Vehicle Code 23153 VC?

The consequences of a California “DUI with injury” conviction vary a great deal depending on

the facts of your specific case, and
whether it’s your first or second DUI within a ten year period (otherwise known as a “lookback” period). California DUI offenses are “priorable,” which means that your punishment necessarily increases with each subsequent conviction.

It should be noted that unlike a non-injury DUI under Vehicle Code 23152, a third “DUI with injury” offense under VC 23153 is an automatic California Felony DUI, not a misdemeanor DUI.

Below are the types of consequences and penalties that you face if convicted of misdemeanor or felony. Note that starting in 2019, it is usually mandatory that defendants install an ignition interlock device (IID) in their car(s) for a certain period of time.

Misdemeanor DUI with injury under VC 23153

Informal (“summary”) probation for three to five years,
five days to one year in a county jail,
between $390-$5,000 in fines,
a three, nine, 18, or 30-month court-approved alcohol or drug education program (otherwise known as “California DUI school”),
a one or three-year suspension of your California driving privilege (starting in 2019, the defendant may be able to continue driving without limitation if he/she installs an IID for 6 months), and
restitution to any/all injured parties.

Felony DUI with injury under VC 23153¹¹ –

Two, three, or four years in the California State Prison, with
an additional and consecutive three- to six-year prison sentence if any victim suffers great bodily injury or
an additional and consecutive one-year sentence for each additional person that suffers any injury (up to three years maximum),
a “strike” on your record pursuant to California’s Three Strike’s Law if anyone other than yourself suffers great bodily injury,
between $1,015-$5,000 in fines,
an 18- or 30-month court-approved DUI school,
Habitual Traffic Offender (HTO) status for three years, and
a five-year revocation of your California driver’s license (starting in 2019, the defendant may be able to continue driving without limitation if he/she installs an IID for 1 year or longer).

3. How Do I Fight a VC 23153 Charge?

Defending against a California Vehicle Code 23153 VC violation begins with the same approach as defending against any drunk driving charge. A California DUI defense attorney will explore all possibilities of proving that (1) you weren’t under the influence, and/or (2) your unlawful blood alcohol level was inaccurately reported.

A skilled California drunk driving defense attorney will additionally ensure that all investigation, arrest, and breath-testing procedures were properly adhered to–and use these issues to fight the VC 23153 charge if they were not.

The defense takes on an additional approach when focusing in on the accident and subsequent injury. A good criminal defense lawyer will work with an accident reconstruction expert who can independently evaluate whether the accident that caused the injury was truly your fault.

The accident reconstruction expert “reconstructs” the scene of the alleged VC 23153 DUI causing injury, taking into account factors such as

the weather,
road conditions,
damage to the vehicles, and
any other relevant evidence that he/she acquires.

When police arrive on the scene of an accident and learn that someone has been drinking, they tend automatically to assume that that person is to blame. Police traffic investigators then write their reports based on that presumption.

As Los Angeles DUI defense attorney John Murray explains,

“This is why Vehicle Code 23153 charges are frequently reduced to Vehicle Code 23152 VC charges. It is often difficult for the prosecution to prove that it was your negligence that caused the other person’s injury, rather than the alleged fact that you were simply under the influence.”

4. Vehicle Code 23153 VC DUI Causing Injury and Related Offenses

There are a variety of offenses that–depending on the circumstances–prosecutors could charge you with in addition to (or in lieu of) Vehicle Code 23153 VC “DUI with injury.” Below is an example of some of the most common.

California Penal Code 191.5 PC Vehicular Manslaughter While Intoxicated

Prosecutors could charge you with Penal Code 191.5 vehicle manslaughter while intoxicated, a more serious crime than VC 23153 DUI causing injury, under one of two circumstances:

you drive under the influence, break another law or behave negligently, and thereby cause the death of another person,¹⁶ or
while driving under the influence, you commit an act that is likely to result in the death of another person and thereby cause that person’s death (this is the more severe form of PC 191.5, known as gross vehicular manslaughter while intoxicated).

California Vehicle Code 20001 Felony Hit and Run Involving Injury or Death

Prosecutors could charge you with Vehicle Code 20001 VC felony hit and run involving injury or death if–after you are involved in an accident–you don’t (1) stop and provide your information, and (2) provide reasonable assistance to anyone requiring medical attention.

Although we’re dealing with Vehicle Code 23153 VC DUI causing injury–which implies that you are at fault for the accident–it should be noted that these requirements apply regardless of liability.

California Penal Code 273a PC Child Endangerment

Prosecutors could charge you with Penal Code 273a child endangerment if–at the time of your DUI causing injury offense–you were driving with a child as a passenger in the car.¹⁹ If convicted of a felony child endangerment charge, you fact up to six years in the state prison.²⁰

Felony DUI

DUI can be charged as a felony in California in 3 situations: when the DUI is a 4th offense within a 10-year period, when the driver has a prior felony DUI, or when the driver causes an accident in which another person is injured or killed.

In all other instances, DUI is a misdemeanor offense. As long as there were no “aggravating factors”, a motorist is charged with misdemeanor “simple DUI” when facing a first, second, or third time DUI case.

In this article, we will discuss in more depth the instances where DUI is a felony:

∗It should be noted that numbers (1) and (2) above could potentially be charged as misdemeanor offenses at the discretion of the prosecutor. Because this is unlikely and rarely the case, this article exclusively deals with DUI offenses as felonies.

A DUI causing injury or death will be charged as a felony

1. California Felony DUI: Causing Injury or Death

When another person suffers injury or death because you (1) drove under the influence, and(2) either committed an additional vehicle code violation or drove in an otherwise negligent manner, California prosecutors can charge you with a felony DUI in one of three ways:

Under California Vehicle Code 23513 VC-driving under the influence causing injury,
Under Penal Code 191.5(a) = gross vehicular manslaughter while intoxicated or Penal Code 191.5(b) – vehicular manslaughter while intoxicated
With DUI second-degree murder (otherwise known as a “Watson murder”

Which California felony DUI will be charged depends on the specific facts of your case and on your criminal history.

2. California Felony DUI: Multiple Convictions

In California, driving under the influence is what’s known as a “priorable” offense. Priorable offenses have stiffer penalties and sentences every time you are convicted for another same or similar offense.

If you have suffered three or more prior DUI convictions within the last ten years, and suffer another DUI arrest, you will likely now be charged with a felony DUI in California. With respect to drunk driving, prior offenses include any combination of the following:

A California DUI,
A California “wet reckless”, or
An out-of-state conviction that — if committed in California — would be equivalent to a DUI.

Having a prior felony DUI means all subsequent DUIs will be charged as a felony

3. California Felony DUI: Having a Prior Felony DUI

If you commit a DUI any DUI – even “simple” Misdemeanor DUI with no aggravated circumstances – and you have at least one prior felony DUI, you will be charged with a felony. This situation would likely arise if you suffer a DUI conviction and your prior DUI conviction (1) caused injury or death and was charged as a felony, or (2) was charged as a felony because you had multiple DUI convictions (even though your current DUI took place after the ten-year timeframe elapsed).

Fighting a Felony DUI Case

A California felony DUI conviction has severe penalties including a substantial California State Prison sentence, heavy fines, and the loss of your California driving privilege for several years. After a first-time conviction of felony DUI causing injury, it may be possible to continue driving as long as an ignition interlock device is installed in the car. (California Senate Bill 1046 (2018)

As Karthik Krishnan, a top Ventura DUI defense attorney, puts it, “A conviction for a California felony DUI is devastating. Beating a felony DUI charge requires an aggressive California DUI defense attorney — and who therefore knows how to successfully employ the most effective defenses.”

Call us for a free consultation at (888) 438-MADE

If you or a loved one is charged with felony DUI and you are looking to hire an attorney for representation, we invite you to contact us at Made Law Group. We can provide a free consultation in office or by phone.

Vehicular Manslaughter

The definition of vehicular manslaughter in California (PC 192(c)) is causing the death of another person while driving a vehicle, by negligently committing either an unlawful act that is not a California felony, or a lawful act that may cause death.¹

In contrast, if you killed someone while driving a car and committing an act that was a felony, you would be charged with Penal Code 187 PC murder under the California felony-murder rule

And if the allegation is that you committed vehicular manslaughter while under the influence of alcohol or drugs, then you would be charged with either Penal Code 191.5(a) PC gross vehicular manslaughter while intoxicated or Penal Code 191.5(b) PC vehicular manslaughter while intoxicated.

Gross Vehicular Manslaughter

The crime of gross vehicular manslaughter while intoxicated occurs when a motorist, while under the influence of alcohol or drugs and driving with gross negligence, causes an accident in which another person is killed. A conviction is a felony punishable by a sentence of 4, 6, or 10 years in state prison.

Under PC 191.5(a), the “grossly negligent act” must be separate from the actual DUI – and must be either a California misdemeanor, an infraction, or an otherwise lawful act that could cause death. ¹ ²

Examples

PC 191.5(a) gross vehicular manslaughter while intoxicated could be charged in the following situations:

While driving with a blood alcohol content (“BAC”) of .08 or greater, a woman drives onto a sidewalk to get past a traffic jam and hits a pedestrian, killing him instantly.
After consuming methamphetamine, a teenager gets behind the wheel of his car (thus committing California DUI of drugs), drives 40 miles over the speed limit, and runs red lights and stop signs. Eventually, he hits another car and kills the driver.

Penalties

Gross vehicular manslaughter while intoxicated is a felony and leads to a sentence in the state prison of four (4), six (6) or ten (10) years.³

Your driver’s license will also be suspended if you are convicted of California gross vehicular manslaughter while intoxicated.⁴

Legal defenses

An experienced California DUI defense attorney can help you fight PC 191.5(a) gross vehicular manslaughter while intoxicated charges using some of the following legal defenses:

You were not actually intoxicated at the time of the accident;
You did not act with gross negligence;
Your negligence didn’t cause the victim’s death, and
You were facing a sudden emergency and acted reasonably under the circumstances.

In order to help you better understand California gross vehicular manslaughter while intoxicated laws, our California DUI and criminal defense attorneys will address the following: