Aggravating Factors In DUIs

June 18, 2020 48299488 0 Comments

There is no such thing as typical DUI.  Every DUI arrest has unique characteristics and factual elements that may increase a driver’s potential punishment.  While there may be reasons why a prosecutor should consider dismissing a DUI, or even reducing the charge and punishment, there are also circumstances that may lead the prosecutor to enhance or increase the penalties associated with a DUI:

  • having a child 14 years or younger in the car at the time 
  • traveling at an excessive speed 
  • driving on a suspended license
  • driving with an excessive blood alcohol level
  • refusing to take a chemical test (breath or blood)
  • resisting arrest or interfering with the officers’ investigation
  • DUI-related traffic accidents involving injury or death
  • DUI Causing Injury (Penalties, Restitution & DMV)

A DUI causing injury (Vehicle Code section 23153(a) & (b))can be charged as either a misdemeanor or felony, depending on the specific circumstances of the case and the defendant’s driving and criminal history, if any.  These types of cases are serious matters and even when the victim’s perceived injuries may appear to be minor (bumps and bruises), the criminal consequences can be severe.  The minimum criminal penalties have a range of 5 days to one year in the county jail for a misdemeanor, and a range of 16 months to 3 years for a felony.  For each person in the victims’ car (including the victim) who suffers “great bodily injury” (significant or substantial injury), an enhancement may be filed increasing the defendant’s potential punishment 3 to 6 years of additional prison time for each victim. 

Additionally, in DUI cases where an injury has occurred, the defendant will still have to attend and complete an approved alcohol school program, as well as pay any fines/fees and provide compensation (restitution) to the victim.  Restitution orders by the court include requiring a defendant to pay the victim’s out-of-pocket costs (hospital care, medical visits, prescriptions, and any physical therapy/chiropractic treatment) and economic losses (lost wages, car damage repair/replacement, rental car expenses, counselling, etc).  

Restitution orders are very broadly and liberally awarded and do not require much proof, so long as they appear legitimate and relevant to the victims injuries.  Even in cases where the victim’s insurance company pays for all of the victim’s expenses and damages, the defendant will still be held criminally responsible and liable for any and all losses.  In addition to the above criminal consequences, the DMV penalties can include a six-month license suspension with installation of an ignition interlock device (IID) for one year, or longer.

DUI Causing Death (“Watson Murder”)

Watson murder (Penal Code section 187) as it is commonly now known is derived from a 1981 California criminal case, wherein the driver was found to have possessed “implied malice” and was consequently convicted of second degree murder.  Unlike an “intent to kill,” which is an element required to prove first degree murder, implied malice is proven when:

  • the defendant commit an act
  • the natural and probable consequences of the act are dangerous to human life
  • the defendant knows the act is dangerous to human life
  • the defendant acts with conscious disregard for human life   

In cases involving a DUI where the defendant kills another person, the “implied malice” may be demonstrated through the driver’s conduct showing wanton disregard for life and that the driver had a knowledge of the risks associated with such conduct.  Examples may include:

  • the driver has suffered prior DUI convictions 
  • the driver acknowledged the dangers of drinking and driving through attendance at a alcohol school program or even a traffic school program discussing the dangers of DUI
  • the driver is a doctor, EMT, or first responder who possesses specialized training/knowledge

Any DUI that results in the death of another person is tragic, but it is important to recognize that the criminal liability for a Watson murder requires the driver possessed “implied malice”.  If it can be shown that the elements of this offense cannot be proven beyond a reasonable doubt, whether by flaws or defects in the prosecutor’s evidence or new information and evidence provided by the defendant’s attorney, a reduced charge, such as vehicular manslaughter while intoxicated (Penal Code sections 191.5(a) & (b)) or with strong evidence in support, straight vehicular manslaughter (Penal Code sections 191(c)(1) or (c)(2)), may be appropriate alternatives.  Given that the penalty for a Watson murder is 15 years to life in prison, an evaluation of these alternative offenses is most certainly worth the effort on behalf of the client.

Finally, any DUI case involving aggravating factors or circumstances (especially in those involving severe injury or death) heightens the probability for increased county jail or state prison time.  These aggravating factors increase the hurdles and challenges that must be overcome with the prosecutor.  Speaking with a knowledgeable and experienced attorney, when any of these aggravating factors are present, may assist in developing a defense or strategy to avoid having to “admit” or plead to the aggravating charge and associated punishment.