What the District Attorney Has to Say About DUIs

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November 27, 2017
District Attorney Sacramento DUI Attorney

Introduction to VC 23152 and VC 23153

Sacramento DUIs are charged under two different code sections: Vehicle Code (VC) 23152 and VC 23153. The difference between VC 23152 and 23153 is simple: VC 23153 is charged when someone other than the defendant is injured, whereas VC 23152 does not involve any injuries.

VC 23152 and VC 23153 include a number of different “types” of DUIs:

  • Alcohol only
  • Drugs only
  • Mixture of alcohol and drugs
  • DUIs in commercial vehicles

The following content focuses on the code sections dealing with Sacramento alcohol DUIs, and will break down exactly what the DA has to prove under VC 23152(a)/(b) and VC 23153(a)/(b). Both of these code sections are referred to as “wobblers”: they can be charged as either a misdemeanor or felony, depending on the circumstances. However, whether you are facing a misdemeanor or felony Sacramento DUI affects the potential punishment; the elements of VC 23152 and VC 23153 remain the same.

Elements of VC 23152 and VC 23153 Explained

When you are charged with a non-injury or injury DUI, you will be charged with two separate code sections: VC 23152 (a) and (b), or VC 23153 (a) and (b).

VC 23152(a)

If you are charged with VC 23152(a), the DA must prove that:

  1. The defendant drove a vehicle
    AND
  2. When the defendant drove, they were under the influence of alcohol, or the combined influence of alcohol and a drug.1

“Under the Influence”

“Under the influence” is defined as whether or not the defendant’s mental or physical abilities are so impaired that they are no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.2

Put another way, the DA does not have to prove that you drove with any particular amount of alcohol in your system. A defendant can be convicted of VC 23152(a), therefore, despite having less than a .08% BAC if the circumstances suggest that the defendant was unable to drive with the caution of a sober person. Driving pattern, objective signs of intoxication and performance on field sobriety tests become crucial to investigate in this context.

The Three Hour Presumption

Despite defying logic and principals of forensic toxicology in most circumstances, DAs commonly rely on what is referred to as the “Three Hour Presumption” in obtaining VC 23152(a) convictions. The jury instruction on the “Three Hour Presumption” is as follows:

“If the People have proved beyond a reasonable doubt that the defendant’s blood alcohol level was .08 percent or more at the time of the chemical analysis, you may, but are not required to, conclude that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense.”3

This presumption is often problematic because the chemical test referenced in the instruction typically does not occur until 45 minutes to 1 hour after the time the defendant drove. Alcohol is much like cough syrup: it is not automatically absorbed into the blood; it takes time for one’s system to absorb it. Therefore, if the defendant is still absorbing alcohol at the time they are pulled over, their BAC will be higher at the time of the chemical test than it actually was at the time they drove. This line of argument is commonly used to defeat this presumption in the eyes of juries up and down the state.

VC 23153(a)

VC 23153(a) is basically the same as VC 23152(a), except that the DA must show an injury occurred to someone other than the defendant with VC 23153(a). If you are charged with VC 23153(a), the DA must prove that:

  1. The defendant drove a vehicle;
  2. When the defendant drove, the defendant was under the influence
  3. While driving under the influence, the defendant also committed an illegal act or neglected to perform a legal duty
  4. The defendant’s illegal act or failure to perform a legal duty caused bodily injury to another person.4
“Under the Influence” and The Three Hour Presumption

“Under the influence” and the Three Hour Presumption are defined the same as VC 23152(a) in the VC 23153(a) context.

“…the defendant also committed an illegal act or neglected to perform a legal duty.”

The law requires that you exercise ordinary care when you drive a vehicle and that you maintain control of the vehicle while driving. Much like “under the influence,” “ordinary care” is a technical legal term:

“Using ordinary care means using reasonable care to prevent reasonably foreseeable harm to someone else. A person fails to exercise ordinary care if they do something that a reasonably careful person would not do in the same situation, or if they fail to do something that a reasonably careful person would do in the same situation.”5

The “ordinary care” standard essentially boils down to a “reasonable person” standard: Was the defendant driving their car like a reasonable person? For example, if someone is texting as they drive, and, as a result, strikes another vehicle, the person clearly was not driving with “ordinary care” (i.e., as a reasonable person would). Significantly, the DA cannot use the fact that the defendant drove with alcohol in their system as the “illegal act” under this section of the instruction.6

“…caused bodily injury to another person”

If, however, a person is merely driving down the highway and an accident is either caused by a third party or the victim themselves, it cannot be said that the defendant caused bodily injury to another person. It would not be right to punish the defendant for injuries suffered by the victim if the defendant did not in fact cause those injuries. According to the law:

“An act causes bodily injury to another 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.7

But, what injuries rise to the level of bodily injury? Unfortunately, neither the jury instructions nor case law gives us a very solid answer. Courts typically define “bodily injury” as “more than a shaking up.”8 If someone sustains broken bones or other serious injuries, the “bodily injury” threshold is easily met. However, things become murkier with more subtle injuries such as soft tissue injuries, particularly if they are not reported by the victim at the time of the accident.

VC 23152(b)

Rather than proving that the defendant drove “under the influence,” the DA must prove that the defendant (1) drove (2) with a BAC of .08% or more.

The Three Hour Presumption

The three hour presumption under VC 23152(b) is similar to the presumption contained in the VC 23152(a) instructions:

“If the People prove beyond a reasonable doubt that a sample of the defendant’s blood/breath was taken within three hours of the defendant’s driving and that a chemical analysis of the sample showed a blood alcohol level of .08 percent or more, you may, but are not required to, conclude that the defendant’s blood alcohol level was .08 percent or more at the time of the alleged offense.”

The defendant’s drinking pattern becomes crucial in defeating this presumption. If the drinking pattern suggests that the defendant’s BAC was rising, the underlying logic of this presumption begins to crumble. A skilled Sacramento DUI lawyer will do whatever they can to limit this presumption prior to trial, as well as attack it throughout trial.

VC 23153(b)

VC 23153(b) is identical to VC 23152(a), except that the DA must prove that the defendant’s BAC was at or above .08% rather than proving the defendant drove “under the influence.” VC 23153(b) differs from VC 23152(b) in that VC 23153 requires a showing that bodily injury was caused by the defendant’s illegal act, or the defendant’s failure to perform a legal duty.9

Conclusion

A breakdown of VC 23152 and VC 23153 makes one thing clear: DUIs are complicated. There are countless investigative and strategic considerations that a Sacramento DUI lawyer has to consider if they’re going to effectively represent someone. Without a base knowledge of what the DA has to prove, however, an attorney will not know what steps need to be taken. Attorney Kocot is an experienced Sacramento DUI attorney that is here to help. Give us a call at (916) 572-6445 or Contact Attorney Kocot if you have any questions.


Resources

  1. CAL CRIM 2110
  2. CAL CRIM 2110
  3. CAL CRIM 2110
  4. CAL CRIM 2100
  5. CAL CRIM 2100
  6. People v. Minor (1994) 28 Cal.App.4th 431, 438 [33 Cal.Rptr.2d 641]; People v. Oyas (1985) 173 Cal.App.3d 663, 668 [219 Cal.Rptr. 243]
  7. CAL CRIM 2100
  8. People v. Minor (1994) 28 Cal.App.4th 431, 438 [33 Cal.Rptr.2d 641]
  9. CAL CRIM 2101