Felony DUI

As the national politically motivated crackdown on purported DUI and drunk driving offenders continue, prosecutors, legislators, and the courts are increasingly looking toward expansion of the limits on a driver's criminal and civil liability. One process that has seen much recent favor is to drastically increase the punishment by simply interpreting the conduct as fitting a more serious type of crime. Thus under certain circumstances the misdemeanor offense of driving under the influence of alcohol will be treated as a felony punishable by incarceration in state prison. The most transparent manifestation of this trend is the growing use of felony homicide statutes where alleged drunk driving results in a death.

A drunk driving charge can have felony status when the driving results in an injury to another person. Where there is "bodily injury" or "substantial bodily harm," depending on the jurisdiction's statutory language, the charge in most states will be what is commonly referred to as "felony drunk driving." Arizona's felony drunk driving statute is fairly typical:

Any person which drives while under the influence of intoxicating liquor, or under the combined influence of intoxicating liquor and any drug, and when so driving does any act forbidden by law or neglects any duty imposed by law in the driving of such vehicle, which act or neglect proximately causes bodily injury to any person other than himself, is guilty of a felony.

There are three further elements have been added to the corpus delicti:

• Violation of a Statute
  
• Bodily Injury
  
• Proximate Causation

As to these three added elements, counsel should be aware of two possible sources of error in the prosecution's pleading or in his proof. First, the prosecution cannot ''bootstrap'' the first of the new requirements: The violation of law must be of a statute other than the drunk driving statute. Typically, the violation will consist of some traffic offense such as speeding or running a traffic light. Second, the bodily injury must be proximately caused by the client's violation of the statute.

If there is an independent source of causation, the elements of the corpus are not satisfied. An extreme example of this requirement would be where the defendant's passengers were not wearing seat belts — sufficient, according to the court, to satisfy the neglect of duty requirement of the felony DUI statute: The injuries were proximately caused by the failure of the defendant to ensure that they were belted in.

As an example of a prosecutorial "over-filing" of a drunk driving case and DUI in Arizona, there is the situation in which the client was driving his vehicle while under the influence and rammed into another vehicle proceeding more slowly in front of him, causing the driver of that vehicle to be injured and put into a hospital. The inexperienced or overly zealous prosecutor may automatically think of the equation, "drunk driving plus injury equals aggravated vehicular assault." However, absent additional facts, there are two essential elements missing in this situation: There is no evidence of an independent violation of a statute, nor, thus, is there any evidence that the injuries were caused by a violation.

Can a driver be charged with assault with a deadly weapon where there was no intent and the "weapon" was his vehicle? It looks like yes. At least according to one appellate decision in Texas. In Roberts v. State, 766 S.W.2d 578 (Tex. App. 1989), the defendant caused an accident while running from police, resulting in the death of one person and injury to two others. He was charged with and convicted of aggravated assault with a deadly weapon and aggravated assault resulting in serious bodily injury. On appeal, the court found that the car qualified as a "deadly weapon," and that the defendant's conduct amounted to an assault even when it was reckless rather than intentional.