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Driving under the influence causing injury with BAC of .08% or more: What is the law and punishment?

Vehicle Code 23153(b)  "driving under the influence causing injury with BAC of .08% or more" is a "wobbler" meaning it may be charged as a misdemeanor or felony depending on the circumstances and the amount of prior convictions for DUI.  A DUI resulting in injury with a BAC of .08% or more is the most serious DUI charge because of the potential large penalties and jail time.  In most cases, VC 23153(a) is also charged in a DUI case but a defendant may only be convicted of one.  

What Must Be Proven in a DUI with injury case with BAC of .08%?

VC 23153(b) requires the following to be proven:

  1. the defendant drove a motor vehicle;
  2. the defendant did so while under the influence of an alcoholic beverage and had 0.08 percent or more, by weight, of alcohol in his or her blood;
  3. the defendant concurrently committed an illegal act or failed to perform a lawful duty; and
  4. the defendant's illegal act or failure to perform a lawful duty was a cause of bodily injury to a victim other than the driver of the vehicle.

 The prosecution has the burden of proving guilt beyond a reasonable doubt that a DUI with injury with a BAC of .08% or more has occurred.

What are the penalties for a DUI with injury with BAC of .08%?

The penalties for a DUI are determined by the amount of prior DUI convictions the defendant has within the last 10 years using the date of the violation.

0 prior DUI convictions

Misdemeanor

The maximum penalty is a fine up to $2,000 plus assessments and/or 1 year in county jail.

Required to take 3, 6, or 9 month DUI program depending on BAC.  

Drivers license suspended for 1 year.

Felony

The maximum penalty is a fine up to $10,000 plus assessments and/or 3 years in state prison.

Required to take 3, 6, or 9 month DUI program depending on BAC.  

Drivers license suspended for 1 year.

Strike if involves infliction of great bodily injury.

1 prior DUI conviction

Misdemeanor

The maximum penalty is a fine up to $2,000 plus assessments and/or 1 year in county jail.

Required to take 18 or 30 month DUI program depending on BAC.  

Drivers license suspended for 2 year.

Felony

The maximum penalty is a fine up to $10,000 plus assessments and/or 3 years in state prison.

Required to take 18 or 30 month DUI program depending on BAC.    

Drivers license suspended for 2 year.

Strike if involves infliction of great bodily injury.

2 prior or more DUI convictions

Felony

The maximum penalty is a fine up to $10,000 plus assessments and/or 4 years in state prison.

Required to take 30 month DUI program.  

Drivers license revoked for 5 years.

Habitual Traffic Offender status for 3 years.

Strike if involves infliction of great bodily injury.

Sentence Enhancements

An additional 3 to 6 year consecutive sentence if any victim experienced great bodily injury.

Each additional injured victim adds a one year consecutive sentence up to a maximum of three years.

What are the defenses to DUI with injury with BAC of .08%?

The arresting officer did not have reasonable suspicion to make a vehicle stop

An arresting officer must have reasonable suspicion that a crime has occurred in order to make a vehicle stop.  Typically, an officer will have have reasonable suspicion if he or she has observed a vehicle code violation including speeding, changing lanes without a signal, or driving at night without lights.  If an officer cannot testify in court as to why he or she was justified in making a vehicle stop, an illegal detention has occurred.  If this is the case, all evidence obtained as a result of the illegal stop will be inadmissible against you at trial.


The Arrest was made without Probable Cause

Probable cause is required for any officer to make a legal arrest.  This is why officers spend so much time observing defendants prior to making an official arrest.  The officer typically asks questions, has the defendant perform tests, and usually asks the defendant to submit to a Preliminary Alcohol Screening device.  This is all done in order to help the officer document signs and symptoms of intoxication in order to develop probable cause to make a valid arrest.  If the officer fails to document the reasons for suspected a DUI or audio and visual recordings disagree with the officer's testimony in court, an illegal arrest may be found to have occurred.  All evidence obtained as a result of an illegal arrest is inadmissible at trial.

You were not Under the Influence at the Time of Driving

It must be proven that the defendant had a BAC of .08% or more at the time of driving.  This can be a difficult task for the prosecutor at trial.  Generally, there is a lengthy period of time between the last time the defendant was known to have been driving and when a test for BAC is performed.  The amount of alcohol in a persons blood is constantly rising and falling.  The BAC of a defendant at the police station several hours later does not conclusively prove the BAC of the defendant at the time of driving.  If the last known time of driving is unknown, the task of proving BAC at the time of driving can be become nearly impossible for the prosecution.

The defendant's negligence was not the cause of the injury

The prosecutor must prove it was the defendant's negligence that caused the injury.  Car accidents can result from any number of reasons.  Weather, road conditions, or other reasons typically contribute to an accident and injuries.  Even if it is proven a defendant is under the influence, this is insufficient all by itself.  This requirement makes it difficult for a prosecutor to secure a conviction.

Bottom line, you need an experienced attorney who is willing to walk you through the entire process, evaluate your case effectively for weaknesses and exploit the issues in your case to achieve the best results.  The Law Offices of Steven McNicholl has that experience and will get you through your case in the best shape possible.

See also

VC 23153(a) DUI causing injury

California's Implied Consent LawCalifornia's Implied Consent Law

Field Sobriety Test

Admin Per Se Hearing

When should you go to trial for your DUI case? 

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