If you are stopped for driving under the influence of alcohol, drugs or both and you injure another person, you will face a charge of “DUI with injury." This is a charge that could be filed as a felony or a misdemeanor depending on certain factors such as, your criminal history, the seriousness of the injury to the victim(s), and the blood alcohol level (BAC).
In California, DUI laws were first enacted in 1911. In the 1980’s, various organizations, led my Mothers Against Drunk Drivers (MADD) were able to push legislation demanding increased prosecution and tougher punishments. Today, Vehicle Code (VC) Section 23153 outlines the elements of the crime and punishments towards this crime of driving while under the influence and causing injury.
In order to convict you of VC 23153 (b), you must be driving at a BAC level of 0.08 and over. It should be noted that if you were driving a commercial vehicle, the prosecutor need to only prove that you drove with a BAC level of 0.04 or greater. Many clients will ask what it means to be “under the influence?"
Note that the statute does not say you have to be found “drunk." It specifically entails being under the influence. This is defined to be 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." This is not a subjective test, it is an objective one (a “reasonable" prudent person examination).
With respect to driving under the influence of drugs, the drugs could be illegal, prescription, and even over-the-counter medications. Your blood alcohol concentration is the amount of blood that 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.
The penalties for a misdemeanor charge are, up to five years of summary probation, up to 1 year county jail, up to $5000 in fines, up to 30 month court approved alcohol/drug program, up to 3 years of suspension of your driver’s license and restitution to any and all injured parties. A felony offense could mean up to four years in state prison, an additional and consecutive three to six years 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, up to $5,000 in fines, up to 30 month court alcohol/drug program, Habitual Traffic Offender status for three years, a five year revocation of your driver’s license and a possible strike on your record under the California three strikes law.
A skilled defense attorney must be hired immediately. Proper investigation, including but not limited to, the police investigation from, the initial traffic stop to arrest, breath testing procedures must be closely scrutinized. I always bring in my defense team a reconstruction expert who will independently evaluate whether the accident that caused the injury was my client’s fault. The expert will review various factors such as the weather, road conditions, damage to the vehicles, and other relevant evidence.
An efficient and effective defense is necessary. Police that arrive on the scene tend to immediately assume that person who is found to have been under the influence is at fault of the accident but after review of key evidence and further investigation, the charge of DUI with injury may be reduced to a “simple" DUI.
The seriousness of injury must also be immediately reviewed. Proper discovery requests to the appropriate agencies/hospitals must be made, to insure that an honest overview of the injury is brought forth on behalf of the defendant. Keep in mind, a civil case involving a personal injury attorney hired by the victim(s), will be another issue that a criminal defense attorney will be tackling. So, defending a client on both the criminal and civil aspects of the case will be deemed impossible by many attorneys but if you hire an experienced one, you should be able to properly defend these charges.