California Vehicle Code Section 23153, DUI With Injury

DUI with Injury Plea Vacated After Court Finds Violation of Victim’s Rights

When a driver, who is under the influence of drugs or alcohol, causes injury to another person, the driver will almost always be charged with violation of Vehicle Code section 23153, also known as DUI with injury. This violation can be charged against the driver even if his or her BAC is under the 0.08% per se threshold if the responding officer believes that the driver was impaired by any alcohol consumption.

Not only must the driver be driving under the influence, but the driver must have been driving in a negligent manner or violated a law during the course of the charged conduct. This could be an allegation, for example, that the driver was violating the speed limit (violating a traffic law) or say, even looking in the mirror to put on lipstick while driving (negligent driving).

DUI with injury is what is known as a “wobbler.” The prosecutor can charge it as a misdemeanor or a felony if it is the driver’s first or second-time DUI with injury in the past ten years; it becomes an automatic felony for a third or more offense. Even on a first-time DUI with injury, if the injury to the other person is significant, it may qualify for what is called a “great bodily injury” sentence enhancement that tacks on a three- to six-year sentence of imprisonment in state prison. Great bodily injury does not necessarily have to be a severe as the enhancement implies; courts have held that bruises and lacerations may qualify as great bodily injury.

Quite often a person charged with this offense will decide to take a plea bargain. That is because a jury may be unsympathetic to the driver’s conduct, especially if the injury to the other person is significant and a plea might present a more favorable punishment prospect than a potential guilty verdict by a jury.

Early this year, a Cal State Fullerton student was struck and severely injured by a driver who ran a red light and hitting the student with his car’s side-mirror and then leaving the scene. The driver was caught and charged with DUI with injury with a great bodily injury enhancement among other charges. He faced a maximum sentence of over 8 years in prison. Upon his guilty plea, the judge sentenced him to a two-year prison sentence.

However, the victim’s rights were violated at sentencing and this fairly lenient sentence has been vacated. Under California law, the victim and/or the victim’s family have the right to be present and to speak before the defendant is sentenced. This right, known as Marsy’s Law, applies to a conviction on DUI with injury.

What makes this case noteworthy is that in a highly unusual move, the plea was vacated by the court after the victim and her mother protested that they were not informed that sentencing was to take place and thus were not present at sentencing as is their right under Marsy’s Law. Although the judge was provided with written victim impact statements from the victim and her family, the court found that the plea and sentence was unlawful as it violated the victim’s rights under Marsy’s Law.

The victim and her family were then permitted to appear before the court to make statements. Following their emotional impact statements, the judge announced that the sentence would be four years and four months in state prison. The defendant has not agreed to plead guilty under the revised agreement. Essentially this case goes back to square one, with the next hearing scheduled for this week. It is unclear whether the defendant will accept the plea bargain with the increased indicated sentence.

A DUI with injury can be a very serious charge. There may be defenses that an experienced DUI defense attorney can identify such as attacking the required element of driving negligently or violating a law. If a great bodily injury enhancement is alleged, possible defenses may include a challenge to the extent of the injury and whether it would qualify for this enhancement. If you have been charged with any DUI offense, contact Orange County DUI defense attorney William Weinberg for a complimentary evaluation of your case. He may be reached at his Irvine office by calling (949)474-8008 or by emailing him at



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