What is the test for a defendant to be convicted of driving under the influence of alcohol under section 23153, Subdivisions (a) and (b) of the California Criminal Code?

Sections 23152, subdivision (a) and 23153, subdivision (a) both prohibit individuals from driving while under the influence, and both sections 23152, subdivision (b) and 23153, subdivision (b) prohibit individuals from driving with a 0.08 percent or more blood-alcohol level. In addition to those requirements, to violate section 23153, subdivisions (a) or (b), a defendant must also "concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver." (Id., subds. (a) & (b).) Because a defendant cannot violate subdivision (a) of section 23153 without also violating subdivision (a) of section 23152, section 23152, subdivision (a) is a lesser included offense within section 23153, subdivision (a), and the same is true for sections 23152, subdivision (b) and 23153, subdivision (b). (See People v. Subramani (1985) 173 Cal.App.3d 1106, 1111 [section 23153 is a counterpart of section 23152, with section

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23153 containing additional elements, including bodily injury or death]; see also People v. Reed, supra, 38 Cal.4th at p. 1227.) Defendant's convictions on counts three and four must be reversed.

B. Section 23153, Subdivisions (a) and (b)