San Diego Felony Drug DUI With an Injury Lawyer 

The prosecutor may bring separate charges if you were under the influence of drugs (Vehicle Code section 23153(e)) or if you were under the influence of drugs and alcohol (Vehicle Code section 23153(f)) and you injured another person.

The Law 

California Vehicle Code section 23153 states:

(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.
(f) It is unlawful for a person, while 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.

What Does This Actually Mean?

Recently, the California Legislature also separated DUI offenses where drugs or drugs and alcohol are involved.

23153(e) & (f)

In order to convict you of a felony DUI with injury offense, the prosecutor must prove four elements:

• You drove;
• You were under the influence when you drove;
• You committed an illegal act or neglected a duty the law imposed while you were driving and under the influence; AND
• Another person was injured as a result of the illegal act or neglect.

Drove

The prosecutor must prove that you actually drove your vehicle. But, what does it mean to drive in California? The courts have defined driving as the vehicle moving, no matter how slight the movement.

Typically an officer will observe the vehicle moving, which will satisfy this element. But, courts also permit prosecutors to use circumstantial evidence to prove driving. Circumstantial evidence of driving includes facts that indicate you were driving, such as the engine is on, seated in driver seat, keys in the ignition, head lights illuminated, etc.

Under the Influence

Drugs

The prosecutor must prove that you were under the influence of drugs. California Courts define under the influence of drugs the same as being under the influence of alcohol. You can be charged for driving under the influence of illegal drugs. Many individuals believe you cannot be charged with DUI for taking prescription drugs as prescribed or over-the counter-medication. But, you may be charged with DUI of drugs regardless of whether the drug you took is illegal, prescription (even if taken as prescribed), or over-the-counter.

Combination of Drugs and Alcohol

If you are charged with driving under the influence of alcohol and drugs, then the prosecutor must prove you were under the influence of both. For alcohol, 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. 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.

Penalties

Felony Drug DUI With Injury

When dealing with a felony DUI with injury offense, the question of penalties is not simple. This is because the penalties will depend on the distinct facts of each individual case. Typically, the following penalties are imposed by the court for felony DUI with injury:

1. Two to four years in state prison;
2. An additional consecutive year in prison for each injured person, up to three years;
3. An additional 3 to six years in prison if anyone, other than yourself, suffered great bodily injury;
4. Three to five years of formal probation;
5. $1000-$5000 in fines and assessments;
6. 18-month or 30-month court-approved California DUI school;
7. Habitual Traffic Offender Status for Three years;
8. Five year California License Revocation;
9. A strike on your criminal record under California’s three strike law if anyone, other than yourself, suffered great bodily;
10. Restitution to any injured victims;
11. Installation of an Ignition Interlock Device for up to three years; and
12. Insurance Ramifications.

In addition, the court may impose higher penalties if there are additional aggravating facts, such as, high blood-alcohol, accident with injury, child in the car, among others. For a discussion on the aggravating factors, see the DUI enhancements section.

Misdemeanor Drug DUI With Injury

DUI with injury is considered a wobbler offense, which means an individual may be charged as a felony or misdemeanor. When dealing with a misdemeanor DUI with injury offense, the question of penalties is not simple. This is because the penalties will depend on the distinct facts of each individual case. Typically, the court may impose the following penalties for a misdemeanor DUI with injury:

1. Five days to one year in jail;
2. Three to five years of summary probation;
3. $390-$5000 in fines and assessments;
4. A three, nine, eighteen, or thirty-month court-approved California DUI school;
5. One to three-year license suspension;
6. Restitution to any injured victims;
7. Installation of an Ignition Interlock Device for up to three years; and
8. Insurance Ramifications.

In addition, the court may impose higher penalties if there are additional aggravating facts, such as, high blood-alcohol, accident with injury, child in the car, among others. For a discussion on the aggravating factors, see the DUI enhancements section.