California Vehicle Code 23153

DUI with Bodily Injury

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DUI with Bodily Injury,
California Vehicle Code 23153

To be found guilty of DUI with bodily injury, Vehicle Code 23153[1], a prosecutor must prove three variables:

1.1.  That a driver was driving under the influence of alcohol, drugs, or a combination of drugs and alcohol with a blood alcohol concentration (BAC) of 0.08% or greater (for commercial drivers the BAC only needs to be 0.04%).

1.2.  That the driver performed an illegal driving action other than the DUI.

1.3. The additional driving offense caused bodily injury to another person, other than the driver.

Vehicle Code 23153 is commonly referred to as a felony DUI, however, a defendant can be charged with a misdemeanor or a felony depending on several variables.

First and foremost, the sentence is dependent on on a driver’s DUI record.  If a defendant has been charged with either Vehicle Code 23152[2], 23153, or 23103.5[3] more than once in ten years, commonly referred to as the look-back period, the charges get increasingly more severe.  Having more than one DUI related sentence within the look-back period will likely lead to a felony conviction of a DUI with bodily injury.

Secondly, the level on intoxication has a significant impact on whether or not the DUI is classified as a misdemeanor or a felony.  If a defendant is measured as having a BAC at 0.10% or higher the likelihood of a felony conviction increases greatly.

Finally, a DUI with bodily injury conviction relies heavily on the extend of bodily injury the victim sustained.  If the defendant is found guilty of causing great bodily injury it is extremely likely he or she will be charged with a felony.  However, if the defendant had a BAC of 0.08%, only caused a minute level of bodily injury to the victim, and it’s the defendants first DUI conviction, there is a possibility that he or she will be charged with a misdemeanor.

The Sentences for a DUI with Injury

First offense within 10 years:

  • When granted 3 to 5 years of informal probation:
    • 5 days to 1 year in county jail
    • $390 to $1,000 fine
    • Completion of a 3-month alcohol/drug program
      • Or a 9-month program if a defendant’s blood-alcohol content was 0.20% or more, or if defendant refused a chemical test at arrest
    • DMV will impose a 1-year driver license suspension
  • When not granted probation:
    • 16 months or 2 or 3 years in a state prison
      • Or 90 days to 1 year in a county jail
    • $390 to $1,000 fine
    •  DMV will impose a 1-year driver license suspension

Second offense within 10 years of either Vehicle Code 23152, 23153, or 23103.5:

  • When granted a 3 to 5 years of informal probation: two options
    • Option (A):
      • 120 days to 1 year in county jail
      • $390 to $5,000 fine
      • DMV will impose a 3-year license revocation
    • Option (B):
      • 30 days to 1 year in county jail
      • $390 to $1,000 fine
      • 18-month or 30-month alcohol/drug program
      • DMV will impose a 3-year license revocation
  • When not granted probation:
    • 16-moths or 2 or 3 years in state prison (or 120 days to 1 year in county jail)
    • $390 to $5,000 fine
    •  DMV will also impose a 3-year driver license revocation

Third or subsequent offense within 10 years of either Vehicle Code 23152, 23153, or 23103.5:

  • When granted a 3 to 5 years of informal probation:
    • 30 days to at least 1 year in county jail
    • $390 to $5,000 fine
    • 18-month or 30-month alcohol/drug program
    •  Restitution or reparation to the victim as required by law
    •  DMV will impose a 5-year driver license revocation
  • When not granted probation:
    • 2, 3, or 4 years in a state prison
    • $1,015 to $5,000 fine
    • DMV will impose a 5-year license revocation
    • Additional 3 years in a state prison if a defendant has four DUI convictions and the offense caused great bodily injury to any person other than the driver

*If the offense caused bodily injury or death to more than one victim, upon a felony conviction,   the sentence will be enhanced by 1 year in a state prison for each additional victim.

Being Charged with California Vehicle Code 23153

It is not uncommon for Vehicle Code 23153 (DUI with bodily injury) convictions to be reduced to Vehicle Code 23152 (DUI) because it can be difficult for a prosecutor to prove that a driver’s actions caused bodily harm.  Causation in terms of DUI with bodily injury means that the victim would not have been injured have the defendant not performed the actions that he or she performed.  In other words, “Causation can be established if the damages or injury would not have caused but for the conduct of the defendant. But, if the accident would have occurred in any event, there is no causation.”[5]

Given this information, counsel can investigate variables that may have contributed to the victim performing these actions by him or herself.  For example, maybe on the night of the accident the roads were slippery due to rain, the victim may have crashed because of the road and weather conditions, and not necessarily because of the actions of the defendant.  If the prosecutor cannot prove indefinitely that a defendant caused bodily injury to a victim then the charges are likely to be reduced to DUI and not DUI with bodily injury.

Another technique used by counsel is to claim that the defendant was not driving under the influence.  Counsel ought to look at the officer’s statement and subsequent information regarding the case in order to disprove that the defendant was in fact driving under the influence.

 

References

1 Driving Under Influence of Alcohol or Drugs Causing Injury

23153. (a) It is unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and 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.

(b) It is unlawful for any 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.

(c) In proving the person neglected any duty imposed by law in driving the vehicle, it is not necessary to prove that any specific section of this code was violated.

(d) It is unlawful for any person, while having 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210, 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 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after driving.

2 Driving Under Influence of Alcohol or Drugs

23152. (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.

(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

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 the driving.

(c) It is unlawful for any person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.

(d) It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 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 the driving.

3 Guilty Plea to Lesser Charge

23103.5. (a) If the prosecution agrees to a plea of guilty or nolo contendere to a charge of a violation of Section 23103 in satisfaction of, or as a substitute for, an original charge of a violation of Section 23152, the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of an alcoholic beverage or ingestion or administration of a drug, or both, by the defendant in connection with the offense. The statement shall set forth the facts that show whether or not there was a consumption of an alcoholic beverage or the ingestion or administration of a drug by the defendant in connection with the offense.

(b) The court shall advise the defendant, prior to the acceptance of the plea offered pursuant to a factual statement pursuant to subdivision (a), of the consequences of a conviction of a violation of Section 23103 as set forth in subdivision (c).

(c) If the court accepts the defendant’s plea of guilty or nolo contendere to a charge of a violation of Section 23103 and the prosecutor’s statement under subdivision (a) states that there was consumption of an alcoholic beverage or the ingestion or administration of a drug by the defendant in connection with the offense, the resulting conviction shall be a prior offense for the purposes of Section 23540, 23546, 23550, 23560, 23566, or 23622, as specified in those sections.

(d) The court shall notify the Department of Motor Vehicles of each conviction of Section 23103 that is required under this section to be a prior offense for purposes of Section 23540, 23546, 23550, 23560, 23566, or 23622.

(e) Except as provided in paragraph (1) of subdivision (f), if the court places the defendant on probation for a conviction of Section 23103 that is required under this section to be a prior offense for purposes of Section 23540, 23546, 23550, 23560, 23566, or 23622, the court shall order the defendant to enroll in an alcohol and drug education program licensed under Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code and complete, at a minimum, the educational component of that program, as a condition of probation. If compelling circumstances exist that mitigate against including the education component in the order, the court may make an affirmative finding to that effect. The court shall state the compelling circumstances and the affirmative finding on the record, and may, in these cases, exclude the educational component from the order.

(f) (1) If the court places on probation a defendant convicted of a violation of Section 23103 that is required under this section to be a prior offense for purposes of Section 23540, 23546, 23550, 23560, 23566, or 23622, and that offense occurred within 10 years of a separate conviction of a violation of Section 23103, as specified in this section, or within 10 years of a conviction of a violation of Section 23152 or 23153, the court shall order the defendant to participate for nine months or longer, as ordered by the court, in a program licensed under Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code that consists of at least 60 hours of program activities, including education, group counseling, and individual interview sessions.

(2) The court shall revoke the person’s probation, except for good cause shown, for the failure to enroll in, participate in, or complete a program specified in paragraph (1).

(g) The Department of Motor Vehicles shall include in its annual report to the Legislature under Section 1821 an evaluation of the effectiveness of the programs described in subdivisions (e) and (f) as to treating persons convicted of violating Section 23103.

[4] http://www.notguiltyduisandiego.com/content/DUI-Penalty-Chart.pdf

[5] http://definitions.uslegal.com/c/causation/

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