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Felony Injury DUI

Felony INJURY DUI

In California, a DUI can be charged as a felony if an individual drives under the influence and causes another person to be injured. A DUI can be charged as a misdemeanor or felony depending on the seriousness of the injury. The charges are typically two separate code sections referred to as the (a) count and the (b) count.

If you were driving under the influence of alcohol and cause injury to another, then you will be charged with Vehicle Code section 23153 as follows:

23153(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.

23153(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. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving.

THE LAW EXPLAINED

Surprising to many is that prosecutors may still charge you with a DUI  even if your alcohol level is below a .08%. In cases where the alleged alcohol level is below a .08%, the prosecution's position often is that regardless of the evidentiary alcohol result, you were impaired at the time you drove. Of course, the lower the alcohol level the more difficult it is for charges to be proven. In a felony DUI with injury, four elements must be proven by the prosecution:

  1. Driving;
  2. The individual was under the influence while driving and/or were .08% or more;
  3. An illegal act was committed or neglected a lawful duty while driving and under the influence;
  4. Another was injured as a result of the illegal act or neglect.
Driving

It must be proven that there was actual driving. The legal definition of driving, simply put, is volitional movement of the vehicle, no matter how slight.

In most DUI cases officers witness individuals driving, allegedly violating traffic laws, and are pulled over. In many other cases the officer witnesses no driving. In these cases the courts allow “circumstantial evidence” to prove driving. An example is an individual parked on the side of a roadway with the engine on.  The assertion will be that you drove to the location impaired.

Under the influence and/or .08% or more

The definition of being under the influence is if your physical and mental abilities were impaired to a degree that you no longer have the ability to drive with the caution characteristic of a sober or non-impaired person.

Typically DUI is equated with impairment by alcohol, but being under the influence of drugs is also illegal. Surprising to many is that even legally prescribed drugs that cause impairment can be the basis of DUI charges.

The determination of whether an individual is .08% or more is much more complex than the alleged number. Both breath and blood methods of analysis can be compromised by inaccurate testing devices and other factors.

Injury and Illegal Act

Felony DUI is charged where another individual is injured, even if it is a friend or family member in your vehicle. The illegal act element involves a law being broken, eg: running a red light, speeding, etc. Typically arrest reports will include a person at fault in the collision and the vehicle code section that was violated.

The prosecutor may be able to show you committed an illegal act if you were speeding, failed to stop at a red light or stop sign, make an illegal turn, etc. For negligence, the prosecutor must show that you failed to use the reasonable care to prevent a reasonably foreseeable harm to another.

Vehicle Code section 23153(b) is commonly referred to as the per se count because the law presumes you were under the influence if you had a BAC of .08 or higher. A prosecutor will use a breath or blood test in order to prove your BAC was .08% or higher. The prosecutor must also prove that your BAC was .08 or higher at the time of driving.

Many BAC tests occur thirty minutes or more after you were stopped, so how does the prosecutor prove what your BAC was at the time of driving? The law presumes you had the same BAC at the time of driving if the breath or blood test was done within three hours of driving. But, the prosecutor must prove what your BAC was at the time of driving if the test was completed over three hours after the time of driving.

Injury and Illegal Act/Neglected Duty

A prosecutor may bring felony DUI charges if someone other than the DUI driver was injured, regardless of how minor the injury is. Additionally, the prosecutor must prove that you either (1) committed an illegal act other than driving under the influence or (2) you were otherwise negligent in how you drove.

The prosecutor may be able to show you committed an illegal act if you were speeding, failed to stop at a red light or stop sign, make an illegal turn, etc. For negligence, the prosecutor must show that you failed to use the reasonable care to prevent a reasonably foreseeable harm to another.

In a felony DUI, injury can be subjective. It is no longer the case where broken bones or serious injury were necessary for a felony DUI to be charged. In some cases even very minor injuries not requiring treatment qualify for prosecutors to file felony DUI charges.  

Felony Injury DUI Penalties

The penalties for a felony DUI can vary from no jail at all to probation up to years in state prison. In addition, fines, alcohol programs, loss of driving privilege, restitution and other penalties are typically imposed. 

Misdemeanor Injury DUI Penalties

In an injury DUI charged as a misdemeanor, the maximum jail that can be imposed is one year. In addition, fines, alcohol programs, loss of driving privilege, restitution and other penalties are typically imposed. 

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