DUIs Causing Injuries Orange County
Criminal defense attorney and former Orange County Deputy District Attorney. The case results and legal analysis on this page are drawn from his own Orange County drug cases.
Being under the influence when someone gets hurt is not enough to convict you under Vehicle Code 23153. The prosecution has to prove that you committed some other unlawful act, or neglected a legal duty, separate from the drinking, and that this other act is what caused the injury. That element decides most of these cases, and it is the one almost nobody explains. A felony filing also does not mean a felony conviction. We have taken felony 23153 filings down to misdemeanors, and taken 23153 charges down to a plain DUI with the injury allegation gone entirely.
Here is how these cases actually work in Orange County, using our firm.
The element that decides these cases
In a DUI causing injuries case, whether it be a misdemeanor or a felony, the DA has to prove that there was some other unlawful act or negligent duty on behalf of the driver other than driving under the influence. So being under the influence is not enough.
If you get into an accident, just because you're under the influence and somebody is injured does not mean that you can be charged with it. There has to be a proximate cause of the unlawful act or negligent duty that caused the injury.
That is the statute, and it is the difference between Vehicle Code 23152 and 23153. The prosecution needs three things, not two: that you were driving under the influence, that you did something else unlawful or negligent behind the wheel, and that the something else caused someone’s injury. Usually the “something else” is an ordinary Vehicle Code violation, meaning speed, an unsafe lane change, running a light, following too closely.
This issue is often in contention. Sometimes it's not in contention because the defense attorney doesn't know what to look for.
Our firm always looks to see what was the cause of the accident, and therefore the proximate cause of the injury.
That second sentence is the part worth reading twice. When causation is uncontested in a 23153 case, it is frequently not because it is uncontestable. It is because nobody looked.
A green light, a left turn, and a client who fled
A young man was driving through an intersection on a green light. A car sitting in the left turn lane, with no green arrow, turned across in front of him. He T-boned that car and the other driver was injured. Then our client left the scene, which added a hit and run charge under Vehicle Code 20001 on top of the DUI with injury.
On paper that is about as bad as this gets: impaired driver, injured victim, and flight.
We were able to use independent data to prove that our client, other than being under the influence, did not cause the accident. In this case we had a witness who we found independently, that was able to say that the alleged victim actually turned in front of our client.
Our client had a green light and was not speeding. And therefore our client was involved in the accident but did not cause the accident.
Nobody handed us that witness. We went and found the witness. The result was a 23153 reduced to a misdemeanor 23152, meaning a DUI with no injury allegation, and the hit and run dismissed.
Note what did the work there. Not the breath result, which was never going to improve. Not a suppression motion. A witness, a green light, and the fact that a car turning left across traffic without an arrow is the one who failed to yield.
One caution, because it is a common and expensive misunderstanding: the duty to stop and identify yourself under Vehicle Code 20001 applies regardless of who caused the collision. Being the driver who was hit does not excuse leaving. Fault evidence is what gives us something to negotiate with afterward. It is not permission to drive away.
“Injury” is not a legal conclusion. It is a factual fight.
Every other page you will read on this subject quotes the great bodily injury statute and stops there, as if injury were a fixed thing the police measure at the scene. In practice it is the most contested fact in the case.
We handled a case where our client was driving and his best friend was in the passenger seat. In the collision the friend hit his face on the dash and suffered a laceration.
The issue in this case was whether or not the person was actually injured. It was our position that, not only being his friend, he only had a scratch.
And it was the district attorney's position that there was more than a scratch, that there were stitches, which would rise to the level of great bodily injury.
The entire felony rested on whether a cut required stitches.
Ultimately we were able to speak to the victim to get the truth of the matter, and we were able to have the victim talk to the district attorney's office via the victim witness office, and inform them that in fact the injury was a scratch and did not require stitches.
And from that we were able to get the DUI with injuries down from a felony to a regular DUI where the victim did not sustain injuries. So that was a 23152, a DUI without injuries.
The route matters as much as the result. The victim’s account went to the prosecution through the Orange County District Attorney’s Victim Witness program, not around it.
And then something you will not find on a competitor’s results page:
Now that was a great disposition, not something that is always expected.
Usually in situations like this, it comes down from a felony to a misdemeanor 23153. In this case it was reduced down to a misdemeanor 23152.
The normal floor in a case like that is a misdemeanor DUI with injury. Getting the injury allegation stricken altogether was better than the expected outcome, and saying otherwise would be dishonest. Our other case results are posted with the same caveat.
A second example of how loose the word “injury” is at the filing stage: in a West Justice Center case we handled, the police report claimed a possible fractured toe plus soft tissue injury, and the District Attorney never alleged great bodily injury at all.
When it does become great bodily injury, the case becomes a strike
This is the part clients underestimate. A great bodily injury finding under Penal Code 12022.7 adds three years of state prison on top of the sentence for the DUI itself. It adds five years if the victim suffered paralysis or a brain injury coma, five if the victim is 70 or older, and six if the victim is under five years old.
The sentence length is not the worst part.
That great bodily injury enhancement makes this case a strike, which would then double any type of future felony sentence if the person ever got in trouble again.
A GBI finding turns the conviction into a serious felony under Penal Code 1192.7(c)(8), which means a strike for life. If there is ever another felony, the sentence doubles. That consequence outlives the probation, the program, the fines and the license suspension by decades, and it is the reason we fight the injury allegation as hard as we fight the DUI itself.
If more than one person was injured, Vehicle Code 23558 adds one year for each additional victim, capped at three.
What we do before we ever start negotiating
A case at the West Justice Center. Our client held a government job, and a commercial driver’s license was on the line. The police report alleged a possible fractured toe and soft tissue injury.
Before anyone sat down to negotiate anything, we put him through:
- A 30 day residential inpatient alcohol program, where he lived on site
- A 90 day intensive outpatient program after that
- Enrollment in the DMV qualifying alcohol program, which he would need both to get his license back and as a term of probation if convicted
- An ignition interlock device, installed
We were able to get this information over to the district attorney after the arraignment, presented with a mitigation letter listing these out.
There we listed out the fact that he had an IID installed, enrolled in the program, had already completed a 30 day inpatient program and was in the middle of the 90 day outpatient program.
He was still mid-program when that letter went over. That is the point. A prosecutor reading it is not being asked to take anyone’s word about future intentions. The work is already done and documented.
The case was reduced to a misdemeanor, and he served community service through Caltrans and labor instead of jail.
Most attorneys do this backwards. They negotiate first, and if the offer requires a program, the client enrolls afterward. Doing it in that order means the client completes exactly the same programs and gets none of the credit for it.
If your job depends on a license or a clearance, that timing matters even more. See DUI consequences for professional licensees in California.
Two clocks are running, and only one of them is the court
The criminal case and your driver's license are separate proceedings on separate timelines. You have 10 days from the arrest to request a DMV administrative per se hearing. Miss it and the suspension takes effect automatically on the thirtieth day, with nothing to argue about.
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Days 1 to 10
Request the DMV hearing
10 days from arrestThere are no extensions. This deadline runs while nothing is happening in court, which is exactly why it gets missed.
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At the APS hearing
The injury is not part of this one
One thing that surprises people:
At a normal admin per se hearing for the DMV, the fact that somebody was arrested for a 23153 DUI with injuries does not matter. The APS hearing moves as if it's just a regular DUI.
The injury is not part of the DMV's administrative case. That hearing is about the arrest and the chemical test, nothing else.
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After a conviction
It reaches your license through a second door
However, if a person is convicted in court of a DUI with injuries, whether it be a misdemeanor or felony, the conviction then gets transmitted to the DMV, and that could have more severe consequences on the driver's license. It could be a year suspension or a revocation depending on their driving record.
So a win at the DMV does not end the license issue, and a loss in court reaches the license later through a separate door. Driving in the gap is its own charge, see driving on a suspended license.
Restitution, and the mistake that costs people their case
If someone was injured and you are convicted of 23153 in Orange County, restitution is ordered. Not sometimes. It is ordered.
The District Attorney’s Victim Witness office investigates the loss and an order issues for you to pay the victim. If you disagree with the number, you are entitled to a restitution hearing, and at that hearing the burden is on the prosecution and the victim to prove the out of pocket losses are real and were not already paid by your insurance or another third party.
Two limits worth knowing, both from Penal Code 1202.4:
Restitution covers out of pocket losses only. Property damage, medical bills, lost wages. It does not cover pain and suffering. In some cases the victim can recover the fees of a civil attorney they hired to collect.
Payments your own insurance already made are credited against it. As Bryan puts it: “If $100,000 in restitution is found and ordered, and the defendant’s insurance paid $50,000 in a civil matter, then that would be offset, and the difference would be a $50,000 restitution order instead of a $100,000 one.”
Which brings us to the thing almost nobody in this position knows, and the reason we tell clients to route insurance contact through our office. Report that there was an accident. Do not give the adjuster a statement.
When I was a district attorney, what I would do if I had problems trying to prove if the defendant was driving or not, I would always find out if he ever made a statement to the insurance adjusters, because those are always recorded.
Insurance adjusters always ask who was driving the vehicle as part of opening a claim. If the defendant spoke to the adjuster and it's recorded, then we could subpoena that, or ask the insurance adjuster to turn that over and get that to us as proof he was driving the vehicle.
Read that again as the person it was written about. A prosecutor who cannot prove you were the one driving can go get the recording where you said you were.
The civil claim and the criminal case feel like separate problems. They are not, and the seam between them is exactly where prosecutors go looking when their case is thin. Bryan Kazarian spent years on that side of it.
What this actually costs you in time
Arrest to filing: 30 days to six months. Longer than a straight DUI, for a specific reason. “The DA may not want to file the case, if there is indication of injury, until they get some sort of medical records to verify if there’s in fact injury.”
Start to finish: six months to two years.
Court appearances: four to twelve, depending on how the negotiations go and how long discovery takes. “Most of the time getting medical records to prove or disprove the injuries is what takes the most time.”
| Charge | Exposure |
|---|---|
| Least severe Misdemeanor 23153 | CustodyUp to one year county jail FineUp to $1,000 ProbationThree years informal |
| Filed as a felony Felony 23153 | CustodyUp to three years state prison FinePlus fine |
| Most severe Felony 23153 with great bodily injury | CustodyUp to three years state prison EnhancementPlus three years for the great bodily injury finding AndIt is a strike The custody and the fine end. This one does not. Every later felony sentence doubles. |
One correction to something you will read elsewhere. Several Orange County firms list the fine for a first 23153 as up to $5,000. Vehicle Code 23554 sets the fine for a first conviction at $390 to $1,000. The $5,000 figure comes from Vehicle Code 23560, which applies to a second offense.
Courthouse: these are filed at the Central, West, North or Harbor Justice Center depending on where the arrest happened and which agency made it. Addresses and hours are on the Orange County Superior Court site. Unlike some case types, the four justice centers do not produce meaningfully different punishment or timelines on DUI with injury felonies.
Three things people get wrong
Three things people get wrong
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A felony filing is not a felony conviction.
That's correct. A felony filing of a DUI could always end up in a misdemeanor case, a DUI with injuries, or even a regular DUI without injuries. So a felony filing does not mean a felony conviction. Period.
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Your BAC does not decide the outcome. The injury does.
We've had situations where somebody had a very low BAC which resulted in a very traumatic accident causing traumatic injuries. And the fact that the person had a low BAC did not determine a lower outcome. It was the injuries that determined what the outcome is.
People arrive convinced the number on the report is their sentence. On an injury case it is one fact among several, and often not the important one. The same logic runs the other way on a DUI over 0.15, where a high number without an injury is still a very different case from this one.
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Waiting until the arraignment is too late.
Hiring a lawyer right after your arrest is crucial. A DMV hearing needs to be set within ten days of your arrest, otherwise your license will be automatically suspended on the thirtieth day.
Beyond the deadline, everything in the mitigation section above takes months to complete. A client who calls the week of the arraignment has no completed inpatient program, no outpatient program, no IID, and nothing to put in a mitigation letter.
Talk to us before you talk to anyone else
If you were arrested for DUI causing injury in Orange County, two clocks started at the arrest and one of them expires in ten days.
On that first call we will tell you- What the 10 day deadline requires, and whether yours has already started running out
- What we would want completed before anyone negotiates anything
- What to say and not say to the insurance company in the meantime
If the arrest was in the last ten days, call rather than booking. The DMV request is the one thing that cannot wait for an appointment.
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These terms are used interchangeably to describe attorneys who defend people accused of crimes. Both criminal lawyers and defense attorneys provide the same services – representing clients facing criminal charges and protecting their legal rights throughout the legal process.
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