Felony DUI with Injury

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You’re driving at night. It’s raining, and visibility is poor. You’ve had a few drinks with friends, but a reasonable amount. You turn right at an intersection, feel a jolt, and hear a loud thump on your front fender. You struck a pedestrian. You get out of the car and notice several things:

  • The pedestrian is wearing dark, maybe black clothing.
  • The pedestrian was talking on the phone or listening to music.
  • The pedestrian is injured: bruises, some blood, maybe a concussion.

The paramedics arrive. You stay on the scene and offer to help. They instruct you to keep a distance, please. An officer arrives and starts directing traffic. Then, one approaches you and says she wants to ask you a few questions. Then, she asks you to perform a field sobriety test. You either pass or don’t pass.

Field sobriety tests are not pass/fail tests. Instead, they test how badly you fail so nobody ever passes. Officers look for cues of impairment and pretty much ignore all the directions that the subject followed and performed properly.

The walk-and-turn test has eight cues and over 80 things that must be done properly. The officer needs to identify two cues to suggest impairment. Thus, someone can get 78 out of 80 things right, but only the two mistakes get noticed, resulting in a failed test that suggests impairment. You can get more than 95% correct and still fail the field sobriety test.

How the Law Views a DUI Involving a Pedestrian Enhancement

It is so easy to overlook a pedestrian wearing dark clothing on a poorly lit intersection. All it takes is a light jacket with some reflective material to bounce light from your car’s headlights. But do you think fashion designers care about safety? They would if they were potentially liable, but the odds of that happening in the world’s entertainment capital are slim to none.

Suppose you don’t pass the field sobriety test. The police arrest you and book you into jail. Your car will get impounded. And now you’ve got to call in to work and explain why you can’t come in. The prosecutor wants to charge you with a felony DUI, and you may be facing a civil lawsuit as well from the pedestrian.

California Vehicle Code Section 23153

If the prosecutor decides to move forward with your case, you may be formally arraigned for felony DUI with Injury under California Vehicle Code Section 23153. During the preliminary hearing, the Judge will explain that you face a prison sentence of 18, 24, or 36 months. If the injury is severe, an enhancement for great bodily injury can be added under Penal Code Section 12022.7. This enhancement can add three years to the felony DUI sentence.

A Possible Defense Strategy

First, we need to examine the extent of the injury to the victim. Bruises and blood are often enough to turn a regular DUI into a felony DUI with injury. More importantly, if the pedestrian suffered a concussion, then the great bodily injury enhancement may also be added. Mironer Law will thoroughly examine medical records, using experts, to assess the extent of the injury. If the injuries are not very serious, I will convince a prosecutor to reduce the charges to a misdemeanor DUI without injuries.

Secondly, it’s essential to immediately begin a discussion with the prosecutor to point out that the driver did not flee the scene but instead stayed to help the victim. Most would leave the scene of an accident when someone is injured. You expressed concern for your fellow human being and understood that another human’s life is more important than getting charged with a DUI. Evidence of compassion suggests this was an innocent accident, and the driver may not have been at fault.

A prosecutor must prove that an accident was the fault of the DUI driver to satisfy all of the elements required for a felony DUI charge. We have to take into consideration the surrounding circumstances. The fact that the pedestrian is wearing dark clothes in a poorly lit area supports the idea that this driver may not have seen the pedestrian, regardless of whether they were impaired or not. Next, we have to figure out which direction the pedestrian was walking. Did they just step off the curb or cross the street before being struck? If they just stepped off the curb in the middle of a green light, the pedestrian may have stepped in front of the moving vehicle without paying attention. Also, we need to determine whether the pedestrian was legally crossing a designated crossing intersection or was illegally jaywalking.

The Crucial Role of Evidence in Your Case

Witnesses have become very important, so we will contact them as soon as possible to interview them. We also look for any footage that may have captured the accident. Sometimes, homeowners and businesses have security cameras that may catch the incident. Also, if the pedestrian was on his phone or inattentive, that can be helpful information that diminishes the defendant’s guilt. If there’s no footage, we may bring in a traffic accident reconstruction expert to help explain in scientific terms what must have happened in the accident.

Once we investigate the driving, then we can move on to the DUI investigation. First, field sobriety tests are subjective and often fallible. They can not determine if someone is too impaired to drive; they only determine if someone may have been drinking. We must examine all the details to get a broader picture of whether someone is too impaired to drive safely. We try to get any video or audio recordings from the arresting officer and their partner. Some law enforcement agencies have dash cameras called Mobile Video Audio Recording Systems (MVARS). Some officers also wear video cameras mounted on their uniform and sometimes record the audio of the arrest. We try to listen to the defendant’s speech because officers generally include that the suspect had slurred speech in their DUI arrest report. We can potentially debunk that information from the audio recording. The recording would help show that the suspect was not as impaired as the police want to make him out to be and that sometimes the officer can’t be completely trusted at their word.

After we examine the police procedures during the arrest, we must look at the actual device used for chemical testing, usually either a breath or a blood chemical test. If the person doesn’t submit to a test or cannot complete the tests, it may be marked as a refusal. Each type of case may be defended in various ways, but for cases with a chemical test, it is crucial to investigate the reliability of the device used for testing. We look for calibration or maintenance issues and try to find problems with the evidence. Most people believe that breath and blood alcohol testing is very reliable. Still, the science behind how these devices operate explains that they are testing on a molecular level, and there’s a margin for error. A skilled attorney knows testing procedures and how to explain their lack of precision. There is an extensive range of what the actual blood alcohol concentration may be compared to the reading on the device.

We have to also take into account the science behind alcohol absorption. A well-trained officer will conduct a thorough investigation of a DUI suspect. They will try to determine what was the time of the accident, what did the DUI suspect have to drink, how much to drink, whether they were drinking fast (chugging) or slow (sipping), when was their last drink, where are they coming from, what did they have to eat, how long did they sleep the night before. All these questions can help the officer build a case against a suspect, so the best advice is never to answer any questions from an officer during a DUI investigation. If they don’t have answers to these questions, they can’t later hold them against a suspect.


Once we finish reviewing the evidence, we negotiate with the prosecutor. Negotiations are an art; they require mutual respect from both sides. An experienced defense attorney knows how to make points about the issues without appearing aggressive. Most prosecutors dislike pushy attorneys, which is evident in their plea bargain offers. Give a prosecutor additional personal information about the defendant so they see the real person, not just a name on paper. Treatment is also a great option because a defense attorney can use rehabilitation as leverage in negotiations. Going to treatment while a case is ongoing is not an admission of guilt because the prosecutor is aware that the treatment is potentially for plea bargaining purposes. Also, rehab time may be credited toward the jail sentence, especially if the Judge orders the live-in residential treatment. Alternative Sentencing, like in-patient or out-patient treatment, must always be considered in felony DUI cases. Also, there may be certain situations where diversion is an option, especially for military veterans.

Finally, if there is a reasonable doubt in the case, a good defense attorney knows how to push it. You can’t just take the first deal that a prosecutor offers; it’s usually the counter-offer that the prosecutor must consider. If there is a real problem with the evidence, then pushing for a dismissal is crucial. It is unethical for a prosecutor to proceed with a case they believe has reasonable doubt. A good defense attorney can convince a prosecutor that a reduced offer would mean your client is getting convicted for something they are not guilty of doing. For justice to be served, the case must be dismissed.