Drunk Driving With Injury Or Death

DUI With Injury

CVC §23153 is the drunk driving with injury statute. It is sometimes referred to as felony drunk driving, but that name is misleading. The offense may also be charged as a misdemeanor (CVC §23554), and a certain number or type of prior convictions can create a felony wobbler offense (chargeable as either a felony or a misdemeanor) under CVC §23550 or CVC §23550.5.  The prosecutor’s decision whether to charge a §23153 offense as a felony or a misdemeanor is generally based on the seriousness of the injury involved and the number of prior convictions.   Many base the decision on whether or not the victim was hospitalized, or whether or not the victim suffered a permanent injury.

In addition to the elements necessary to convict for DUI, a prosecutor must also prove that the accused did an act forbidden by law or neglected a duty imposed by law and that act or neglect proximately caused bodily injury to any person other than the driver.  The third element, the forbidden act or neglected duty, is known as the supporting offense. Basically, the supporting offense is some wrongful act, usually a Vehicle Code infraction, that is alleged to be the cause of the victim’s injuries. The supporting offense generally must be proved just like it would have to be proved at a trial on that charge alone.  The terms “any act forbidden by law” and “any duty imposed by law” refer to acts forbidden by and duties imposed by the Vehicle Code. In proving that a duty imposed by law was neglected, it is not necessary to prove that any specific section of the Vehicle Code was violated.

The principles of proximate or legal causation apply to crimes as well as to torts; as in tort law, the defendant’s act must be the legally responsible cause of the injury, death, or other harm constituting the crime. The Prosecution has the burden of proving proximate cause, and may satisfy that burden by producing “evidence from which it may be reasonably inferred that the defendant’s act was a substantial factor in producing” the harm.

DUI With Great Bodily Injury

A felony conviction for violating  CVC §23153(a), constitutes a strike with a consecutive three year enhancement  if the defendant  personally inflicts great bodily injury on any person, other than an accomplice.  Once there is injury to another, the charge becomes a felony and, if the injury is substantial enough to qualify as great bodily injury, the enhancement under §12022.7(a) applies since the driver personally inflicted great bodily injury.

Pen. C. §12022.7, subd. (e) defines great bodily injury as  “a significant or substantial physical injury.”  It is an injury that is greater than minor or moderate harm. The question of what constitutes “great bodily injury” is a question for the jury and a court should not pre-empt the jury with instructions that define an injury such as a bone fracture as great bodily injury  where such injuries can vary widely and may include hairline factures that require no treatment. 

A defendant sentenced to state prison following a conviction of CVC §23153 with an allegation pursuant to P.C. §12022.7 found to be true must serve 85 percent of the sentence because such a conviction qualifies as a violent felony pursuant to P.C. §2933.1 and §667.5. P.C. §667.5 (c) (8) classifies a violent felony as:  “Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in section 12022.7.”

GROSS VEHICLULAR MANSLAUGHTER WHILE INTOXICATED

In the case of gross vehicular manslaughter while intoxicated  an act causes death if the death is the direct, natural and probable consequence of the act and the death 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.  There may be more than one cause of death.  An act causes death only if it is a substantial factor in causing the death.  A substantial factor is more than a trivial or remote factor.  To be considered the proximate cause of the victim’s death, the defendant’s act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical.  There may be more than one proximate cause of the death.  When the conduct of two or more persons contributes concurrently as the proximate cause of the death, the conduct of each is a proximate cause of the death if that conduct was also a substantial factor contributing to the result.  

A cause is concurrent if it was operative at the time of the death and acted with another cause to produce the death.  It has long been recognized that there may be multiple proximate causes of a homicide, even where there is only one known actual or direct cause of death.  A defendant may also be criminally liable for a result directly caused by his or her act, even though there is another contributing cause.  Thus, a defendant is liable for a crime irrespective of other concurrent causes contributing to the harm.   Moreover, a superseding cause must break the chain of causation after the defendant’s act before he or she is relieved of criminal liability for the resulting harm.

Intervening causes in criminal cases are typically described as either ‘dependent’ or ‘independent.’ A dependent intervening cause will not absolve a defendant of criminal liability while an independent intervening cause breaks the chain of causation and does absolve the defendant.   For liability to be found, the cause of the harm not only must be direct, but also not so remote as to fail to constitute the natural and probable consequence of the defendant’s act.   

A defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or the defendant should have foreseen the possibility of harm of the kind that could result from his act.   The intervening act may be so attenuated, due to the passage of a significant period of time, that defendant’s act is no longer considered the proximate cause of the victim’s death because, at some point, the required causal nexus would have become too attenuated.