By: Diana Aizman
A DUI, 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 3 specific circumstances:
A 4th DUI charge within 10 years
An accident resulting in serious bodily injury
An acccident resulting in death
A prior DUI felony conviction
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.
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 conviction.
Even 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 4th charge within the 10-year window. Further, the 10 years refers to 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 4th 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.
Penalties for 4th DUI
The penalties for a 4th 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.
Penalties typically consist of 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 4 years to 10 years
- Participation in an 18-month DUI program
- In-patient or out-patient alcohol rehabilitation program
- Possible MADD Victim Impact Panel
- 5 years’ probation
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 negligent. 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 injury.
A serious injury does not necessarily mean the victim was paralyzed or suffered a traumatic brain injury. 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 injury.
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 conviction. If you have 3 priors, another 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:
|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.
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
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. 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 murder.
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 only 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 4th DUI within 10 years. The penalties for DUI felony are the same as for a 4th DUI as indicated above.
There are aggravating circumstances that can increase your penalties once convicted of DUI.
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, which is a felony. 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.
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 reading
- 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
If you have been arrested and would like to learn more about what attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you are ready to discuss a pending felony DUI case contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.