Driving under the influence, or “DUI” is a criminal offense in California. If you are arrested on suspicion of DUI where an accident occurred, and someone was hurt as a result, you might expect to be charged with a more serious offense called “DUI causing injury.”

DUI Causing Injury is a “wobbler” under California law, meaning that it can be charged as either a misdemeanor or a felony, depending on the facts and circumstances surrounding the case and the defendant’s prior record. The potential consequences are harshest as a felony charge, but even as a misdemeanor, DUI causing injury can trigger some very serious penalties-more serious than a “simple DUI.”


A charge of DUI causing injury generally boils down to two larger issues:

  • The prosecution proving that the defendant committed some type of DUI
  • The defendant injured another person in a certain way while they were DUI

California Vehicle Code Section 23153 sets forth the things that the government must prove. These are called the “elements of proof”, of DUI causing injury.

To prove a person guilty of DUI causing injury under VC 23153, the prosecution must prove, beyond a reasonable doubt:

  1. You were driving a vehicle AND
  2. At the time of driving, you were “DUI”, meaning at least one of the following:
  • You were under the influence” of alcohol at the time they were driving
  • You had a Blood Alcohol Content (“BAC”) of at least 0.08%
  • If driving a commercial vehicle or a “ride for hire” vehicle, you had at least 0.04% BAC
  • You were under the influence of any drug OR
  • You were under the combined influence of any drug and alcohol


  1. While you were DUI, you committed some other violation of the law or committed some other negligent act AND
  2. Your other violation of the law, or negligent act, proximately causes injury to another person

Can I be accused of DUI even if I wasn’t drunk? 

Notice that there are several different ways for the prosecution to prove that the defendant was “DUI.” This is because the California vehicle code defines DUI in many different ways, some of which are based on specific “levels” of BAC and other types require types of “circumstantial” proof that the defendant is too intoxicated to safely drive. There are two important takeaways from this information: first, you can be found guilty of DUI even your BAC was below 0.08-because the prosecution might still be able to prove that you were too intoxicated to safely drive anyway. Second, if you drive at 0.08 or above but you can still drive safely because you have a “high tolerance” you are still guilty of DUI if the government can prove that your BAC was 0.08 or above when you drove.

Your “negligent” act must be the cause of the injury

Some important issues also come up with elements 3 and 4. A “DUI Causing Injury” charge is based on more than just a “DUI plus injury.” The prosecution has to prove, in addition to being DUI, that the defendant broke some other law or was otherwise negligent in some way. On top of this, the prosecution has to show that this “other act” injured another person.

These issues can become very technical, and depending on the facts of your case, the prosecution might have serious problems proving them in court. As such, there are many types of defenses to a “DUI causing injury” charge.


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You were not driving the car

While it seems obvious, remember that the prosecution has to prove that the defendant was driving a vehicle, AND that, while driving, the defendant was “under the influence” of drugs or had a BAC above a certain limit. When the prosecution cannot show that the defendant was ever driving, or that the defendant was driving with too much alcohol in their system, then their case might be weaker.

In some DUI cases, the defendant is arrested on suspicion for DUI during a traffic stop, and testing done soon afterwards shows that they were intoxicated. In those cases, the prosecution might have an easier time proving that the defendant was, in fact, driving the car while intoxicated.

Consider the following example: Tatiana drives her car into town sober, she parks her car, walks to a bar, drinks all night, and returns to her car. She never starts her car or moves it but instead just sits inside the car and sleeps. If she was arrested and charged with DUI, she would probably be found “not guilty” because, while he did drive his car at some point, he did not do so while drink or with a high BAC.

You weren’t DUI when you were driving

Furthermore, remember that the prosecution has to prove that you were “under the influence” when you were driving.

Consider the following examples:

Joey gets into a serious accident and survives, but someone else is hurt. Joey was completely sober during the accident, but afterwards decides to run into a nearby bar and down a few shots to “take the edge off.” Police soon arrive with civilians in tow, screaming that the defendant was just driving the car that got into the accident. Naturally, the police suspect (correctly) that Joey is intoxicated and chemical tests prove this. However, if the evidence presented at trial shows all of the above, Joey will be found “not guilty” of DUI causing injury because he was not under the influence of anything at the time of the accident. He might be civilly liable for damages related to the accident, and he may have violated some other vehicle code sections depending on how his driving went leading up to the accident. But under these facts, Joey would be acquitted of DUI causing injury.

Consider also a case where a driver has some drinks earlier in the night, and then starts to drive home several hours later. The driver collides with someone else and that person is injured. There is still some alcohol in the driver’s system, but tests reveal that his BAC was well below 0.08, and no other intoxicants are detected. The driver also performs well on a battery of “field sobriety tests” on scene. These facts might make it difficult for the prosecution to prove that the driver committed “DUI causing injury”, because they might have a hard time proving that the defendant was DUI in the first place.


You did not violate another law or act in some negligent way

As mentioned above, a charge of “DUI Causing Injury” is more than just “DUI plus injury.” The prosecution has to also show that the driver committed some other violation of the law, or acted in some otherwise negligent way. This is an essential element of the offense, and it is not proven just by showing that the Defendant was DUI. A prosecutor can go on and on about how DUI is already illegal, dangerous, and reckless-but proof of a DUI followed by an injury, and nothing more, will not support a conviction for “DUI causing injury.” The prosecution has to prove some other misconduct in addition to the DUI.

In many cases, the prosecutor can accomplish this with proof that the defendant was speeding or disregarded a traffic signal, but a specific violation of the vehicle code is not always needed. The prosecution could also prove this element with evidence that the defendant otherwise acted negligently while driving. But they must still prove more than just the DUI itself.

Consider the following example: Marissa drives while heavily intoxicated, but somehow manages to obey all traffic signals and drives at a normal speed during their trip. Marissa comes to a complete stop at a red light. While the light is still red and she remains stopped at the intersection, another driver rear-ends Marissa. The collision causes the other driver to bang their head against the inside of their car and they suffer a head injury. Even though Marissa did break the law, and arguably acted carelessly, by driving intoxicated, the prosecutor would probably have a lot of trouble proving that she committed the “other act” needed for a “DUI causing injury” charge.

One point that is worth clarifying: there is a difference between the “roadside” preliminary alcohol screening test and the chemical tests done after the defendant was arrested. The preliminary test (or “PAS” for short) is primarily meant to determine whether an officer has “probable cause” to arrest someone for DUI. A well-prepared defense of a DUI case should thoroughly investigate the differences between the PAS testing and any subsequent methods, because any problems might disrupt the prosecution’s ability to prove intoxication. The PAS test is always based on a breath sample. A “chemical test”, however, is usually taken after the defendant has already been arrested on suspicion of DUI. The results of this test are usually what a DUI prosecution is likely to base their case on.

Your actions did not cause the victim’s injuries

Remember that the prosecution has to prove not only that you were DUI and someone was injured, but that while you were DUI, you broke some law or drove in some negligent manner, and that law-breaking or negligent driving “proximately caused” the victim’s injuries. “Proximate cause” is the key phrase. It means that the defendant’s conduct has to be reasonably related to the victim’s injury. In some cases, the connection between the defendant’s bad driving and the victim’s injury is less clear, even if the defendant was DUI at the time.

Consider again the example of the DUI driver who gets rear-ended. Suppose that this driver does not properly stop at an intersection with a stop sign, and instead stops with part of their car over the crosswalk. Then the victim rear-ends the defendant’s car, and sustains a head injury during the collision. In that case, the defendant was DUI and broke some kind of traffic law, but the defendant’s actions had little if anything to do with the victim’s injuries. Therefore, that case should probably result in a “not guilty” for DUI causing injury.

Sometimes the victim’s injuries have more than one apparent cause. And in other cases, the victim was actually injured before the accident, but the injury only became apparent during the post-accident investigation. If the victim’s medical records are available, your attorney should review them carefully in order to determine whether your conduct can truly be considered the “proximate cause” of the victim’s injuries.

DUI Causing Injury is a “wobbler” under California law. This means that it can be charged as either a misdemeanor or a felony, EVEN IF IT IS ONLY YOUR FIRST OFFENSE. If you are expecting charges for DUI Causing Injury, the District Attorney’s Office (“DA”) will decide whether your case should be charged as a misdemeanor or felony. The DA’s office will usually consider many factors in this decision, including your prior record, the severity of the victim’s injuries, and the facts and circumstances surrounding the accident itself.



Our Bay Area DUI lawyers are experienced in getting cases dismissed or earning you the best possible outcome, but it does take work. Being arrested for a DUI can be devastating. It can affect your job, professional licenses, immigration status, and can cause embarrassment. Our job is to get involved early on in the case, reduce that stress, and handle all of the steps of fighting your case. Whether that means going to trial or securing you the best possible plea deal, we do it all. 


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