Is a lesser included offense of the crime of causing injury while driving with a blood alcohol level over 0.08 percent?

² The People acknowledge that no case law addresses the question presented here, but they contend that People v. Toure (2015) 232 Cal.App.4th 1096, 1106, 181 Cal.Rptr.3d 857, is instructive. We disagree. Toure is inapposite as it concluded that the crime of causing injury while driving under the influence of alcohol in Vehicle Code section 23153, subdivision (a) is not a lesser included offense of the crime of causing injury while driving with a blood alcohol level over 0.08 percent in Vehicle Code section 23153, subdivision (b), as it is not necessary to prove the defendant was under the influence for the latter offense. (Toure , at p. 1106, 181 Cal.Rptr.3d 857.) That distinction is not present in the statutory provisions before us in this case.

² The People acknowledge that no case law addresses the question presented here, but they contend that People v. Toure (2015) 232 Cal.App.4th 1096, 1106, 181 Cal.Rptr.3d 857, is instructive. We disagree. Toure is inapposite as it concluded that the crime of causing injury while driving under the influence of alcohol in Vehicle Code section 23153, subdivision (a) is not a lesser included offense of the crime of causing injury while driving with a blood alcohol level over 0.08 percent in Vehicle Code section 23153, subdivision (b), as it is not necessary to prove the defendant was under the influence for the latter offense. (Toure , at p. 1106, 181 Cal.Rptr.3d 857.) That distinction is not present in the statutory provisions before us in this case.