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DUI ACCIDENTS – Encino DUI ATTORNEY GROUP

Causing an accident while DUI can lead to very serious criminal charges if anyone was injured or killed as a result and so long as you caused the accident. In any event, even a property damage only accident is an aggravating circumstance exposing you to likely jail time.

A DUI with property damage is generally a misdemeanor so long as it is less than your fourth DUI, but if an injury or fatality occurs, then it is a “wobbler” where the DA may charge you with either a misdemeanor or felony depending on the circumstances of the accident and your criminal record. Any time you are arrested for a DUI along with causing an accident, contact one of our highly experienced defense lawyers from the Encino DUI Attorney Group.

DUI with Property Damage—CVC 20002(a)

If the accident was property damage only, you do have certain obligations to stop and provide your identifying information regardless if you have been drinking. These obligations are embodied in this code section:

“The driver of any vehicle involved in an accident resulting only in damage to any property, including vehicles, shall immediately stop the vehicle at the nearest location that will not impede traffic or otherwise jeopardize the safety of other motorists. Moving the vehicle in accordance with this subdivision does not affect the question of fault. The driver shall also immediately do either of the following:

1. Locate and notify the owner or person in charge of that property of the name and address of the driver and owner of the vehicle involved and, upon locating the driver of any other vehicle involved or the owner or person in charge of any damaged property, upon being requested, present his or her driver’s license, and vehicle registration, to the other driver, property owner, or person in charge of that property. The information presented shall include the current residence address of the driver and of the registered owner. If the registered owner of an involved vehicle is present at the scene, he or she shall also, upon request, present his or her driver’s license information, if available, or other valid identification to the other involved parties.

2. Leave in a conspicuous place on the vehicle or other property damaged a written notice giving the name and address of the driver and of the owner of the vehicle involved and a statement of the circumstances thereof and shall without unnecessary delay notify the police department of the city wherein the collision occurred or, if the collision occurred in unincorporated territory, the local headquarters of the Department of the California Highway Patrol.

b. Any person who parks a vehicle which, prior to the vehicle again being driven, becomes a runaway vehicle and is involved in an accident resulting in damage to any property, attended or unattended, shall comply with the requirements of this section relating to notification and reporting and shall, upon conviction thereof, be liable to the penalties of this section for failure to comply with the requirements.

c. Any person failing to comply with all the requirements of this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.”

The Accident Scene

If police are called and arrive and suspect you of drinking, regardless if you caused the accident, you will be questioned. It is only an aggravating circumstance that could enhance your DUI sentence if you caused the accident.

When questioned, you may politely refuse to answer but you will undoubtedly be asked to perform FST or coordination tests and to blow into the PAS. Unless you are under the age of 21 or are probation for a prior DUI, you are not legally obligated to perform these tests and no penalties attach if you refuse. The sole purpose of these particular tests is to give the officer probable cause to arrest you for DUI or request that you submit to chemical testing of your blood alcohol or BAC. If the officer has reasonable cause to suspect you were drinking and driving, then you have an obligation under the state’s Implied Consent law to submit to testing as you will face certain penalties such as loss of your license for one year for refusing.

In addition, a refusal to submit to BAC testing can be used as evidence of your guilt at trial. It is one of the aggravating circumstances that can enhance your sentence as well.

If this is your first DUI, then sentencing and penalties for DUI with accident may include:

• 5 days in county jail with maximum of 12 months

• Fine between $390 and $5000

• 3 to 30-months in a DUI class

• 1 or 3-year suspension of driver’s license

Of course, if you have prior DUI convictions within the past 10 years, the court will impose additional time in jail and other consequences depending on the number of past DUI convictions.

CVC Section 23153– DUI accidents that result in injuries

Causing an injury accident while DUI may be charged as either a misdemeanor or felony depending on the extent of the injuries, circumstances of the accident and your criminal record. You must have been driving in a negligent manner while DUI. The relevant section is CVC 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 any 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) 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.

(g) This section shall become operative on January 1, 2014.”

The penalties for a misdemeanor DUI with causing injury are the same as one for property damage.

Accident with DUI Causing Serious Injury

Other than a DUI with causing a fatality, a DUI with a serious injury is the next most serious drunk driving offense. It carries substantial penalties since your conduct may be considered grossly negligent as it exhibits a willful indifference to the safety of others. Promptly retain an experienced criminal defense attorney from the Encino DUI Attorney Group if you are charged since face felony charges are likely.

A serious injury does not require that the victim suffer paralysis or brain trauma. It may be loss of consciousness or concussion, broken bones or any injury that requires extensive medical care. If the injury was not serious, you likely face misdemeanor charges instead.

If convicted of a felony, your sentence may include the following:

• State prison time of 2, 3 or 4 years

• 3 to 6 years added if victim suffered serious bodily injury

• 1 to 3 years added for each additional person who sustained any kind of injury

• Fine of $1,015 to $5000

• Habitual Traffic Offender status for 3 years

• Installation of ignition interlock system when license reinstated or restricted license granted

• Participation in a DUI program for 18 to 30-months

• 5 year loss of driver’s license

• A strike on your record under California’s 3-strikes law

You need a highly experienced defense lawyer if facing felony DUI charges as well as for a misdemeanor since you face probably time in county jail. If circumstances are such that one of our Encino DUI Attorney Group lawyers recommends a plea, then the negotiation with the DA can include an alternative to state prison. This includes participation in a home monitoring or SCRAM program, private jail or community service.

Related Offense–Child Endangerment (PC 273a)

Having a minor passenger in your car under the age of 14 while driving intoxicated is taken seriously and is an aggravating circumstance leading to a sentence enhancement. If an accident occurred or your BAC was elevated or some other egregious conduct accompanied the DUI charges, it can also result in separate child endangerment charges that may be charged as a misdemeanor or as a felony. If your actions were grossly negligent, then the DA may choose to charge you with felony child endangerment.

Child endangerment is found under PC 273a:

“Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.

(b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.

(c) If a person is convicted of violating this section and probation is granted, the court shall require the following minimum conditions of probation:

(1) A mandatory minimum period of probation of 48 months.

(2) A criminal court protective order protecting the victim from further acts of violence or threats, and, if appropriate, residence exclusion or stay-away conditions.

(3) (A) Successful completion of no less than one year of a child abuser’s treatment counseling program approved by the probation department. The defendant shall be ordered to begin participation in the program immediately upon the grant of probation. The counseling program shall meet the criteria specified in Section 273.1. The defendant shall produce documentation of program enrollment to the court within 30 days of enrollment, along with quarterly progress reports.

(B) The terms of probation for offenders shall not be lifted until all reasonable fees due to the counseling program have been paid in full, but in no case shall probation be extended beyond the term provided in subdivision (a) of Section 1203.1. If the court finds that the defendant does not have the ability to pay the fees based on the defendant’s changed circumstances, the court may reduce or waive the fees.

(4) If the offense was committed while the defendant was under the influence of drugs or alcohol, the defendant shall abstain from the use of drugs or alcohol during the period of probation and shall be subject to random drug testing by his or her probation officer.

(5) The court may waive any of the above minimum conditions of probation upon a finding that the condition would not be in the best interests of justice. The court shall state on the record its reasons for any waiver. If a fatal accident occurred, the DA can charge you with either felony DUI under CVC 23153, or gross vehicular manslaughter or vehicular manslaughter. The latter is a “wobbler” and may be charged as a misdemeanor.”

If convicted or you plead to a child endangerment charge, you can be subject to random drug tests for alcohol and you must participate in a class for child abusers for at least one year. You are also the subject of a protective order that could require you to have no contact with the child for a period of time.

DUI with Fatal Accident under PC 192

PC 192 is a “wobbler” so that the DA can charge you with vehicular manslaughter as a misdemeanor or with gross vehicular manslaughter as a felony. The code section is as follows:

“PC 192: Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:

(a) Voluntary–upon a sudden quarrel or heat of passion.

(b) Involuntary–in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.

(c) Vehicular–

(1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

(2) Driving a vehicle in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.

(3) Driving a vehicle in connection with a violation of paragraph (3) of subdivision (a) of Section 550, where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person. This paragraph does not prevent prosecution of a defendant for the crime of murder.

(d) This section shall not be construed as making any homicide in the driving of a vehicle punishable that is not a proximate result of the commission of an unlawful act, not amounting to a felony, or of the commission of a lawful act which might produce death, in an unlawful manner.

(e) “Gross negligence,” as used in this section, does not prohibit or preclude a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson (1981) 30 Cal.3d 290.

(f) (1) For purposes of determining sudden quarrel or heat of passion pursuant to subdivision (a), the provocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship. Nothing in this section shall preclude the jury from considering all relevant facts to determine whether the defendant was in fact provoked for purposes of establishing subjective provocation.

(2) For purposes of this subdivision, “gender” includes a person’s gender identity and gender-related appearance and behavior regardless of whether that appearance or behavior is associated with the person’s gender as determined at birth.”

Gross Vehicular Manslaughter–PC 191.5

Short of murder, gross vehicular manslaughter is an offense that denotes a serious disregard for the rights and safety of others or was conduct so egregious that it exposed others to a high risk of death and did cause a fatality. The code section states:

“191.5. (a) Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

(b) Vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140,

23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

(c) (1) Except as provided in subdivision (d), gross vehicular manslaughter while intoxicated in violation of subdivision (a) is punishable by imprisonment in the state prison for 4, 6, or 10 years.

(2) Vehicular manslaughter while intoxicated in violation of subdivision (b) is punishable by imprisonment in a county jail for not more than one year or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or four years.

(d) A person convicted of violating subdivision (a) who has one or more prior convictions of this section or of paragraph (1) of subdivision (c) of Section 192, subdivision (a) or (b) of Section 192.5 of this code, or of violating Section 23152 punishable under Sections 23540, 23542, 23546, 23548, 23550, or 23552 of, or convicted of Section 23153 of, the Vehicle Code, shall be punished by imprisonment in the state prison for a term of 15 years to life.

Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the term imposed pursuant to this subdivision.

(e) This section shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290.

(f) This section shall not be construed as making any homicide in the driving of a vehicle or the operation of a vessel punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.

(g) For the penalties in subdivision (d) to apply, the existence of any fact required under subdivision (d) shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact.”

Examples of gross negligence are excessive speeding, smashing into multiple vehicles, racing on the freeway or suburban streets, driving on sidewalks, fleeing police or having a BAC of 0.15% or higher.

Sentencing for Vehicular Manslaughter as Misdemeanor

• Up to one year in jail

• 16 months or 2 or 4 years in county jail

• Fine up to $1,000

Vehicular manslaughter as Felony

• 4, 6 or 10 years in state prison

• If a prior DUI conviction for same offense or at least 2 prior DUI convictions—15 years to life

• Fine up to $10,000

DUI Accident Defenses

There are a number of defenses that a lawyer from the Encino DUI Attorney Group can raise:

• The accident was the fault of someone else or some other factor unrelated to your driving

• Lack of proof that you were driving the vehicle if you had adult passengers and no one admits to driving

• Insufficient evidence that you were intoxicated at the time of the accident if you are arrested outside your vehicle or at your home sometime after the accident

• The injuries do not constitute serious bodily injury

• The administration of the breathalyzer or blood test was not properly administered

• The technician or officer who performed the test was not certified or properly trained

A DUI with causing a serious injury accident or fatality exposes you to substantial penalties that can lead to years of incarceration. Immediately contact one of our highly experienced lawyers from the Encino DUI Attorney Group if you face this or any other DUI charges.