Review of When a DUI is a Felony in California
Driving under the influence in the state of California is normally a misdemeanor crime but can be charged as a felony offense in certain situations.
For example, when the driver has a prior felony DUI conviction, when the current DUI is a 4th offense within 10 years, or when they cause a car accident where someone was seriously injured or killed.
As noted, driving under the influence of intoxicants is ordinarily a California misdemeanor under Vehicle Code 23152 VC.
Further, the DUI crime generally remains a misdemeanor not only for a first offense but for second and third offenses if the circumstances of the crime involve no other aggravating factors.
Standard misdemeanors are punishable by up to six months in jail and a $1,000 fine. Aggravated misdemeanors are punishable by up to one year in jail and a fine of $1,000 or more. Put simply, certain circumstances, as noted above, can increase a California misdemeanor DUI to a felony crime.
In order to give readers some useful information about the DUI laws, our Los Angeles criminal defense attorneys are taking a closer look below.
Felony DUI Causing Injury
California prosecutors pursuing felony DUI charges because the crime caused an injury will charge that crime under Vehicle Code 23153 VC. This statute makes it a felony DUI crime to:
- “while under the influence of an alcoholic beverage, to drive a vehicle and do any act forbidden by law, or neglect a duty imposed by law in driving the vehicle, which neglect proximately causes bodily injury to any person other than the driver.”
In this type of situation, the driver of the vehicle will be arrested and charged with the following:
- Vehicle Code 23153(a), driving under the influence causing injury,
- Vehicle Code 23153(b), driving with a BAC of .08% or higher causing injury.
Intoxication involves a blood alcohol content of .08 or more, unless the defendant drove a commercial vehicle or passenger for hire, in which case blood alcohol content of .04 or more suffices.
Vehicle Code 23153 can be charged as either a misdemeanor or a felony, which is called a “wobbler.” The decision normally depends on the severity of the accident and the extent of the victim's injuries, as well as the driver's prior criminal history.
Felony DUI Causing Death
California prosecutors pursuing felony DUI charges because the crime caused a death will charge that crime under Penal Code 191.5 PC. Subsection (a) of that statute addresses gross vehicular manslaughter while intoxicated, and Penal Code 191.5(b) addresses simple vehicular manslaughter while intoxicated.
Gross vehicular manslaughter adds the element of gross negligence to the simple vehicular manslaughter crime. In either case, the felony DUI-causing-death crime requires the prosecution to prove that the defendant:
- “while intoxicated, the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Vehicle Code Sections 23140, 23152, or 23153, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, or lawful act that might produce death, in an unlawful manner.”
Prosecutors may also charge a felony DUI crime causing death under California Penal Code 187 PC. A felony charge under this statute is known as second-degree Watson murder after the California Supreme Court case of that name.
Watson held that drunk driving with a prior driving conviction can constitute malice aforethought, which is also known as "implied malice." This means it does not have to have any type of intent to kill the victim but had a conscious disregard for human life.
This crucial element of the crime is necessary for a Penal Code 187 second-degree murder conviction. Prosecutors charge felony DUI causing death under Penal Code 187 when the defendant has at least one prior DUI conviction.
Which felony charge prosecutors will file will depend on the specific details of your case and on your criminal history.
Felony DUI with Multiple Prior DUI Convictions
California Vehicle Code 23550.5 VC elevates the misdemeanor DUI offense to a felony when the defendant already has three or more prior DUI convictions within ten years of the new DUI crime. To reach the necessary multiple convictions, the prosecution may count any combination of DUI convictions in California or DUI or equivalent DWI, OUI, or similar convictions in other states.
The prosecution may also count wet reckless convictions, referring to a plea-bargained conviction of reckless driving under Vehicle Code 23103 VC where the defendant was under the influence of intoxicants. Thus, in review, regarding drunk driving, a “prior” offense can include any of the following:
- a conviction in California for driving under the influence,
- a conviction in California for wet reckless, or
- a conviction for drunk driving in another state.
Felony DUI Due to Prior Felony DUI Conviction
California Vehicle Code 23550.5 also elevates a misdemeanor DUI offense to a felony when the defendant already has a felony DUI conviction. In other words, the defendant need not have committed three or more prior DUIs to suffer a felony DUI conviction.
If at least one prior DUI was a felony conviction, then that single prior felony DUI conviction elevates the new DUI offense to a felony. One prior DUI will do if that one was a felony DUI. For example, your prior DUI conviction was caused injury or death and was filed as a felony, or it was filed as a felony for having multiple DUI convictions.
Punishments for Felony DUI in California
Defendants charged with felony DUI for multiple prior DUI convictions or a prior felony DUI face:
- up to sixteen months, two years, or three years in state prison, plus a fine of up to $1,000, mandatory interlock device for at least one year, and other potential license suspension or restriction.
- Defendants charged with felony DUI causing death face up to life in prison.
There are also many collateral consequences to having a felony conviction. For example, you are prevented from owning, possessing, or using a firearm for the rest of your life.
You are prevented from voting while serving a state prison sentence, even if serving in county jail, or while on parole. If you were sentenced to a California state prison, you are barred from expunging your conviction in the future.
Best Defenses to Felony Drunk Driving Case
Recall from above that there are 3 situations where you could be charged with a felony case of driving under the influence in California.
Those circumstances can include if the DUI crime caused death or bodily injury, the defendant driver already had a felony DUI conviction at the time of the new DUI crime, or the defendant has committed a fourth DUI within ten years. Defendants charged with felony DUI due to prior DUI convictions may challenge those prior convictions.
Prior convictions that fall outside the ten-year period, were not DUI convictions of the defendant, or were not DUI convictions, may not count against the necessary number of prior DUIs. Defendants charged with felony DUI causing death may challenge the factual and proximate or legal cause of death.
Defendants facing any DUI charge may also defend on the basis that they were not intoxicated or not intoxicated to the necessary degree that the statute requires. It might be possible to negotiate with the prosecutor and get your felony charge reduced to a misdemeanor.
Further, we might be able to find legal errors made by police and any weaknesses in the prosecutor's case to determine the possibility of case dismissal. For example, did the police have sufficient probable cause for the traffic stop? Were you stopped at a sobriety checkpoint?
If you were charged with a felony DUI as a result of an accident causing injury, it must be proven beyond a reasonable doubt you caused the accident. Perhaps we can show the other driver who caused the accident.
If necessary, we work closely with our in-house private investigator to document an accident scene and can employ an accident reconstruction expert to establish fault. Put simply, perhaps they can demonstrate the other party could have been responsible for the accident.
Eisner Gorin LLP is located in Los Angeles County and you can contact us for an initial consultation at (877) 781-1570.
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