Vehicle Code §23153

Commentary

Driving Under the Influence causing injury is the voluntary operation of a vehicle while under the influence of drugs, alcohol, or a combination of drugs and alcohol resulting in an injury accident.  A blood alcohol level above 0.08% creates a presumption that the person is under the influence, but a person can be found guilty even with a lower alcohol level.  Additional presumptions apply to commercial drivers and drivers for hire, which most likely will be interpreted to include ride-share services like Uber and Lyft.  The charge can be either a misdemeanor or a felony.

Standard Punishment

One year – if a misdemeanor

16 months, 2 years, or 3 years – if a felony

Relevant Statutes

Vehicle Code §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.
(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.
(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 a 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 to 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 a 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.
(e) Commencing July 1, 2018, it shall be unlawful for a person, while having 0.04 percent or more, by weight, of alcohol in his or her blood to drive a motor vehicle when a passenger for hire is a passenger in the vehicle at the time of the offense, and concurrently to 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. For purposes of this subdivision, “passenger for hire” means a passenger for whom consideration is contributed or expected as a condition of carriage in the vehicle, whether directly or indirectly flowing to the owner, operator, agent, or any other person having an interest in the vehicle. In a 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.
(f) 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.
(g) 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.

Standard Jury Instruction

The jury will generally be instructed pursuant to CalCrim 2101, which is summarized as follows

The defendant is charged with causing injury to another person while driving with a blood alcohol level of 0.08 percent or more in violation of Vehicle Code section 23153(b).

To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant drove a vehicle;
2. When he drove, the defendant’s blood alcohol level was 0.08 percent or more by weight;
3. When the defendant was driving with that blood alcohol level, he also committed an illegal act or neglected to perform a legal duty;
AND
4. The defendant’s illegal act or failure to perform a legal duty caused bodily injury to another person.

If the People have proved beyond a reasonable doubt that a sample of the defendant’s blood or breath was taken within three hours of the defendant’s alleged driving and that a chemical analysis of the sample showed a blood alcohol level of 0.08 percent or more, you may, but are not required to, conclude that the defendant’s blood alcohol level was 0.08 percent or more at the time of the alleged offense.

In evaluating any test results in this case, you may consider whether or not the person administering the test or the agency maintaining the testing device followed the regulations of the California Department of
Public Health.

The People allege that the defendant committed the following illegal
acts: Speeding and Unsafe Lane Change

To decide whether the defendant committed Speeding or Unsafe Lane Change, please refer to the separate instructions that I will give you on those crimes.

The People also allege that the defendant failed to perform the following legal duty while driving the vehicle: the duty to exercise ordinary care at all times and to maintain proper control of the vehicle.

You may not find the defendant guilty unless all of you agree that the People have proved that the defendant committed at least one illegal act or failed to perform at least one duty.

You must all agree on which act the defendant committed or duty the defendant failed to perform.

Using ordinary care means using reasonable care to prevent reasonably foreseeable harm to someone else. A person fails to exercise ordinary care if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.

An act causes bodily injury to another person if the injury is the direct, natural, and probable consequence of the act and the injury would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.

There may be more than one cause of injury. An act causes bodily injury to another person only if it is a substantial factor in causing the injury. A substantial factor is more than a trivial or remote factor. However, it need not be the only factor that causes the injury.

Special Jury Instructions

The following case law may be of benefit in preparing special jury instructions to defend against a DUI charge.

Evidence that there was alcohol upon the breath of the defendant is not sufficient to prove that the defendant was under the influence of intoxicating liquor when he drove his automobile upon a public highway.
Authority: Linde v. Emmick, 16 Cal. App. 2d 676, 683, 61(1936).

Results of a blood, breath, or urine test “. . . are to be weighed and considered with all other evidence by the jury. . . , and even where a state has adopted certain alcoholic blood content figures as a basis for presumptions as to intoxication, such presumptions are not conclusive.”
Authority: Quoted language is from People v. Conterno, 170 Cal. App. 2d 817, 825 (1959).

The Vehicle Code provides that a person choosing to submit to a breath test must be advised that the breath sample cannot be saved and that he may take a urine or blood test so that something will be retained for analysis. A failure on the part of the officer to properly so advise the defendant may be considered by the jury “. . . as a factor bearing on the credibility of the officer and the accuracy of the breath test administered by the officer or at his direction.”
Authority: Vehicle Code § 23157.5 with quoted language from People v. Alvarado, 181 Cal. App. 3d 1, 5(1986).

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