Ninth Circuit

PRACTICE ADVISORY " SAFE HAVEN " DUI WITH GREAT BODILY INJURY
A conviction of driving under the influence of alcohol, with a great bodily injury clause under Penal Code 21022.7, should not be considered to be an aggravated felony crime of violence, even if a one year sentence is imposed. This is because there is no intent required for the GBI clause beyond the intent required to commit the underlying offense. People v. Poroj (2010) 190 CA4th 165 (jury instructions for DUI with 12022.7 GBI enhancement do not require the jury to find intent to cause GBI separate and apart from intent necessary to commit underlying crime); People v. Carter (1998) 60 Cal. App. 4th 752 (only general criminal intent is required to find true a GBI sentence enhancement under Penal Code 12022.7, discussing the amendment of this statute in which the Legislature eliminated a prior element requiring specific intent to cause GBI). The GBI clause therefore imposes negligent or even strict liability (e.g., accidental) personal infliction of GBI. While the GBI clause constitutes part of the elements of the offense of conviction for immigration purposes, these intent elements are insufficient to constitute an aggravated felony crime of violence. Leocal v. Ashcroft, 543 U.S. 1 (2004). Therefore, a DUI with a GBI clause found true cannot constitute an aggravated felony crime of violence, regardless of sentence imposed. The minimum prosecuted conduct under the GBI clause is indeed accidental infliction of GBI, since it is frequently used in conjunction with DUI prosecutions. E.g., People v. Poroj, supra. Thanks to Dan de Griselles.