4 Ways A DUI Can Become A Felony

A DUI¹, or driving while under the influence of alcohol or drugs, is generally charged as a misdemeanor.

However, it can also be charged as a felony under 4 specific situations:

1. A 4^th DUI charge within 10 years
2. A DUI accident resulting in serious bodily injury
3. A DUI accident resulting in death
4. A prior DUI felony conviction

#1. 4th DUI Within 10 Years

This is actually a discretionary charge as the prosecution has the option of charging you with a misdemeanor.

It is unlikely you would be charged with a misdemeanor unless there were unusual mitigating circumstances or your charges were negotiated from a felony to a misdemeanor as a plea arrangement.

How Are Prior DUI’s Calculated?

A prior DUI offense includes those from other states and any moving violation that involved drinking such as a “wet reckless” or careless driving in another state with alcohol involvement.

The out-of-state conviction, however, has to have been at the same level as that of a California DUI or one that would have sustained a California alcohol-related conviction².

Does An Expunged DUI Count As A Prior?

If you had a prior DUI expunged, that will count as a “priorable” offense and can result in your being charged with felony DUI if this is your 4^th charge within the 10-year window.

Are Prior DUI’s Calculated from the Date of Offense or Conviction?

DUI’s are calculated based on the date of each offense and not the conviction.

If you were charged, but not convicted, 10 years and 10 days from the date of your 4^th DUI offense, then you would be facing a misdemeanor charge.

If this is the defendant’s fourth DUI in the past 10 years, it is also likely that the defendant was

• Driving with a restricted license,
• No license or
• Was under probation.

This can lead to additional charges and increase the fines and jail sentence.

What Makes A Felony DUI Aggravated?

The penalties for a 4^th DUI as a felony are harsh but also depend on whether you had an excessive blood alcohol concentration (BAC) such as 0.15% or higher, and other aggravating circumstances.

This would include:

• Driving at a high speed,
• Having a passenger who is 14 or under,
• Fleeing a police officer, or
• Being under probation.

California Felony DUI Sentencing Guidelines

The penalties for felony DUI may include the following:

• 16 months, 2 or 4 years in state prison
• Fine between $1,015 and $5000
• Habitual Traffic Offender status for 3 years
• Loss of driver’s license for 1 year³ to 10 years depending on how many felony DUI Convictions.
• Participation in an 18-month driving-programs
• In-patient or out-patient alcohol rehabilitation program
• Possible MADD Victim Impact Panel
• 5 years’ probation
• Installation of an ignition interlock device for a minimum of 1 year from the date of conviction⁴

#2. Accident Resulting In Serious Injury

To be charged under VC 23153, the driver must have not only been under the influence or driving with a BAC of 0.08% or higher but must have also violated another traffic law such as running a red light or speeding or being otherwise negligent⁵.

This second vehicle violation or civil breach of a legal duty to exercise due care when driving must have been a substantial factor in causing the accident injury⁶.

What Does the Law Consider a Serious Injury?

A serious injury does not necessarily mean the victim was paralyzed or suffered a traumatic brain injury⁷.

It can include broken bones, deep lacerations, permanent scarring or a disability.

If the victim received any medical care, this might be perceived as a serious injury⁸.

Can You Be Charged With a Felony if you Have no Prior DUI Convictions?

If you have no prior DUI convictions, the prosecution has the discretion to charge you with a misdemeanor despite the fact that someone sustained a serious injury.

Should you have a prior DUI conviction, your sentence even for a misdemeanor will increase for each subsequent conviction⁹. If you have 3 priors, another DUI will more than likely be charged as a felony whether you caused an injury or not.

Should you be charged with a felony below you can see the penalties compared to a misdemeanor:

Felony DUI Penalties

Penalty	Misdemeanor	Felony
Fine	From $390-$2,000	Between $1,000 -$5,000
License Suspension	1-3 years	5 Years
Probation	Summary Probation 3-5 years	Formal Probation 3-5 years
DUI School Or Program	3, 9, 18 or 30 months	18 or 30 months
Habitual Traffic Offender Status	No	3 Years
Strike Under 3 Strike Law	No	Yes
Restitution To Victim	Yes	Yes
Jail Or Prison	5 Days – 1 Year County Jail	16 Months, 2, 3 or 4 Years State Prison
Sentencing Enhancements	Standard DUI Enhancements	Additional 1- 3 years for any victim with injury. Great Bodily Injury 3-6 years for each victim served consecutively

Of course, the penalties increase if the offender has had a previous DUI felony conviction.

#3. DUI With Fatality

Motorists who are under the influence or driving with a BAC of at least 0.08% who cause a fatal accident are likely charged with vehicular manslaughter.

This is found under either Penal Code 192(c)(2,) which is a “wobbler” and may be charged as either a misdemeanor or as felony,  or gross vehicular manslaughter under PC 191.5, which is a straight felony.

To be charged, the prosecution must prove you:

• Drove under the influence of alcohol or drugs
• And committed a misdemeanor or infraction or lawful act that was likely to lead to death
• The act was committed with ordinary or gross negligence
• A person was killed as a result of the negligent act

If charged with a misdemeanor, you face:

• Up to one year in county jail
• A fine of $350 to $1000

If the motorist acted with gross negligence, such as driving 90 miles per hour or fleeing a police officer, then the driver faces felony charges:

• 4. 6 or 10 years in state prison
• If at least 2 prior DUI convictions, you face 15 years to life
• Fine up to $10,000
• Loss of driving privileges for at least 3 years

A felony DUI Charged as Murder

You face severe penalties if you caused a fatal car accident while under the influence. You could be charged under PC 187 for second-degree murder so long as you have a prior DUI conviction and was given a “Watson Advisement” when sentenced for the prior DUI

What Is A Watson Advisement?

A “Watson Advisement” is where a judge warned you about the dangers to others if driving while under the influence and that if you are arrested for driving while DUI and caused a fatal accident, you could be charged with murder¹⁰.

DUI/Watson murder is a second-degree murder charge under the law’s felony murder rule. You face 15 years to life in state prison. It becomes life without parole if you have a prior murder conviction.

#4. Prior DUI Felony

A prior DUI felony will automatically result in your being charged with another DUI felony, regardless if you caused an injury or fatality.

This can be from:

• One prior conviction if it was a DUI with serious injury or fatality where you were convicted for a felony, or
• If you were convicted of a felony DUI because it was your 4^th DUI within 10 years.

The penalties for DUI felony are the same as for a 4^th DUI as indicated above.

Sentencing Enhancements & Additional Penalties

There are aggravating circumstances that can increase your penalties once convicted of DUI.

These include:

• Your BAC was at least .20%
• You were fleeing a police officer
• Hit and run
• Violation of probation
• Driving on a suspended license
• Speeding 20 miles or more over the limit
• You refused chemical testing of your BAC
• Having a passenger under the age of 14—child endangerment

Child Endangement:

Having a passenger who is under the age of 14 in your car while driving under the influence exposes you to a charge of child endangerment under penal code 273(a), which is a felony¹¹.

You are more likely to be charged if you caused an accident with a serious injury or fatality. This carries a sentence of up to 6 years in state prison.

Legal Defenses

There are a number of defenses that can be presented based on the circumstances of your case:

• You did not cause the accident so felony charges are not supported
• Insufficient proof that you were driving the vehicle
• Insufficient evidence that you were intoxicated or impaired at the time of the accident
• Insufficient proof of your BAC level at the time of the accident
• Your conduct was not grossly negligent
• The injuries do not constitute great bodily injury
• The chemical test results were improperly administered, the technician was not certified or your medical condition resulted in a false high reading¹².
• Police failed to obtain a warrant if they forcibly extracted a blood sample from you
• The prosecution cannot certify that you had 3 prior DUI offenses within the past 10 years

1. California Vehicle Code 23152(a); California Vehicle Code 23152(b). [↩]
2. People v. Crane (2006) 142 Cal.App.4th 423, 433 [↩]
3. California Vehicle Code 13353.3(b)(2)(A): See Also Vehicle Code 13352(a)(2)(A). [↩]
4. Vehicle Code 23575.3(h)(2)(A). [↩]
5. People v. Minor (1994) 28 Cal.App.4th 431, 438-439;  People v. Oyaas 1985) 173 Cal.App.3d 663, 669 [↩]
6. People v. Bernhardt (1963) 222 Cal.App.2d 567, 590-591 [↩]
7. People v. Thoma(2007) 150 Cal.App.4th  1096,1100, [↩]
8. People v. Escobar (1992) 3 Cal.4th 740, 750; People v. Nava (1989) 207 Cal.App.3d  1490, 1498 [↩]
9. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [↩]
10. People v. Watson (1981) 30 Cal.3d 290 [↩]
11. People v. Valdez (2002) 27 Cal.4th 778, 788-789; People v. Cortez (1999) 71 Cal.App.4th 62, 80 [↩]
12. People v. Adams (1976) 59 Cal.App.3d 559 567 [↩]