Joseph P. Hougnon, Attorney at Law

Defending Injury-Related DUI’s (VC§23153)

DUI’s cases involving injury (to another) can be filed as misdemeanor or felonies. These types of crimes are referred to as “wobblers.” In most cases, the nature and scope of the injuries is the main factor DA’s consider before making a filing decision. The nature of the driving described in the report by the officer and/or witnesses, and your driving history are factors, as well. But, even when the DA files felony charges, it’s been possible in most of the cases I’ve handled over the years to negotiate a misdemeanor resolution and avoid a felony conviction. And while judges cannot unilaterally force the DA to reduce charges in most cases, judges do have the authority under PC §17(b) to reduce wobblers to misdemeanors prior to, or after a plea has been taken in court, if the judge is convinced it’s appropriate to do so. I’ve had great success doing just that. Assuming the case is provable, the biggest priority is always finding a way to get the charges reduced to a misdemeanor prior to the plea (Click to see Felony Marijuana DUI Case Reduced by Judge).

What if the DA charges a GBI enhancement?

If the injuries are serious or permanent, it’s possible the DA will offer to resolve the case, but may require a plea that includes a Great Bodily Injury (GBI) enhancement, which mean the conviction will become a “strike” that can enhance future penalties if one is convicted of a qualifying felony sometime in the future. Although the three strikes law has become discretionary over the years, it’s important to look for any mitigation in the case or the nature and scope of the injuries to try to get a plea agreement that does not include a GBI enhancement, which usually means the judge and/or DA will be open to a sentence that includes less jail time or Home Detention.

Will the court order me to pay Restitution?

There are two types of restitution in DUI cases. Restitution to the county will be part of the fines and fees the court will order you to pay. But, in cases involving personal injury and/or property damage, the court will order restitution to the victim. Restitution may be ordered for a specific amount at the time of sentencing, or in “an amount to be determined.” If your insurance company covers the damages to the victim or victims, the court ordered restitution should not be an issue. However, if not, the court will make restitution a part of the probation order. If the defense disputes the amount claimed by the victim, the court will hear arguments on the merits of the claim if the defense requests a Restitution Hearing.

Will the court have to prove I was at fault in the accident if I’m arrested for a DUI causing injury or death?

1% rule – In DUI cases that involve an accident that cause injuries or death, if the DA can prove you were DUI, the law only requires you to be 1% or more at fault in order to be 100% criminally liable. In most cases, the defense will have to prove the other party was 100% at fault in order to avoid criminal liability for the injury or death.

Can I be charged with a Felony DUI?

Felony DUI’s can be charged in these circumstances:

  • If you have three prior DUI or “Wet Reckless” convictions within 10 years of your current arrest for DUI;
  • If your DUI caused injury or death to another;
  • If you have at least one prior felony conviction.
  • When another person suffers injury or death because you (1) drove under the influence, and (2) either committed an additional vehicle code violation or drove in an otherwise negligent manner, California prosecutors can charge you with a felony DUI in one of three ways:
Joe Hougnon, Esq.

Answers to all your questions are only a phone call away. Call Now at (916) 730-5251.

Under California Vehicle Code 23153 VC (driving under the influence causing injury),

  • With DUI vehicular manslaughter, or
  • With DUI second-degree murder
  • Which California felony DUI will be charged depends on the specific facts of your case and on your criminal history. Whenever defendants are convicted of a DUI in California, the court advises the defendant or his or her attorney (if appearing PC section 977, without the defendant present) that because you’ve been convicted of a DUI, you can be charged with murder in the future if you’re DUI, and someone is killed as a result (VC§23593).

Will hiring a lawyer that charges a large up-front fee guarantee my case will be dismissed?

Some people have all the money in the world and feel comfortable spending thousands of dollars up front on their cases, regardless of the likelihood it will change the outcome. There are plenty of DUI attorneys who will be happy to sell you, and sell you early before they have seen the evidence in your case, that they can “win” your case. I talk with prospective clients every week who have spoken to other attorneys on the phone and were told things like, “I can get you a Wet Reckless,” or “I can get your case dismissed.”

First of all, it’s a violation of the Ethics code to make any promises in criminal matters. Secondly, this is usually nothing more than a sales tactic, and I always wonder what the attorneys say later when they can’t deliver on their promises.

Some DUI attorneys sell what I call the “1% solution.” They charge a higher upfront fee and promise to do everything possible to win your case, including motions that may or may not be warranted by the evidence that will eventually be discovered to the defense. For those you have unlimited funds, this may be the best option. I prefer to work the case first, reviewing the evidence, talking with my client, and then making recommendations about spending more money on things like, investigation, forensic testing or reviews, filing suppression motions, which cost more money, time and emotional energy. I use common sense and apply it to each individual case before pushing my clients to litigate further.

Also keep in mind the fact that negotiations usually end when you begin litigating a case – when you reject the DA’s offer after your attorney negotiates a plea bargain. It may not be proper, but it happens. So, it’s important to be careful to first understand what you’re doing before, what the strategy is, and your chances for success before you decide how to proceed. I make sure my clients are fully advised and have the information necessary to make informed choices.

For more information on Injury Related DUIs, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (916) 730-5251 today.

Joe Hougnon, Esq.

Answers to all your questions are only a phone call away. Call Now at (916) 730-5251.

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