Archive for March 8th, 2018

Elevating a California DUI to a Felony

Thursday, March 8th, 2018

The vast majority of California DUI’s are misdemeanors, which means by law a person cannot serve more than a year in jail. And most people who are convicted of a California misdemeanor DUI will never serve that much time, if any at all. However, if a person is arrested, charged, and convicted of a felony DUI, they most certainly will be facing jail, possibly even prison time.

So how does a California DUI get elevated to a felony?

The first way that a California DUI can get elevated to a felony is if the person has suffered three prior DUI-related convictions within the past 10 years. Prior DUI-related convictions include driving under the influence (California Vehicle Code section 23152), driving under the influence with injury (California Vehicle Code section 23153), reckless driving involving alcohol (“wet-reckless”) (California Vehicle Code section 23103.5), and out-of-state convictions that qualify as a priorable conviction. An out-of-state DUI conviction will qualify as a prior DUI in California if it would be considered a DUI had the arrest occurred in California.

A prosecutor can introduce court records from prior cases as well as DMV records to prove the prior DUI convictions. It should also be noted that the prosecutor may also use “expunged” prior DUI-related convictions as way to elevate the current DUI as long as it occurred within the 10-year period.

The second and most common way that a DUI gets elevated from a misdemeanor to a felony is when a DUI results in the injury of another person. California Vehicle Code section 23153 makes it illegal for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, or with a blood alcohol content of 0.08 percent or higher to drive a vehicle and 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. Simply put, this means that the driver was under the influence of alcohol or drugs, they broke a law or acted in a negligent manner and caused injury to another person.

Although DUI with injury is a “wobbler,” meaning it can be charged as either a felony or a misdemeanor, it will almost always be charged as a felony. In fact, I’ve seen prosecutors file DUI’s as felonies when the victim suffered a chipped tooth, a broken finger, and even soft tissue damage. A skilled DUI attorney may be able to negotiate the DUI down to a misdemeanor. However, whether the prosecutor is willing to file or reduce the charge to a misdemeanor will depend on several considerations including, but not limited to, the seriousness of the injury, the level of intoxication, and prior criminal history.

If a person drives under the influence and, as a result, causes the death of another person, they may be charged with either manslaughter, which can be a wobbler depending on the specific Vehicle Code section being alleged, or murder, which is a felony.

A DUI resulting in death will be charged as manslaughter if the driver has not suffered any prior DUI-related convictions. If, however, the driver has suffered a prior DUI-related conviction, they will likely be charged with second degree murder under California’s “Watson Murder Rule.” Under Watson, the California Supreme allowed murder to be charged in a subsequent DUI resulting in death because the driver was made aware of the dangers of drunk driving after having been sentenced on the prior DUI. It is almost as if the court is saying, “We warned you, you did it anyways, and now look at what happened.”

Last, but not least, a California DUI can become a felony if a person suffered any prior felony DUI within ten years. The priorable felony offense can be a conviction of any of those listed above; California Vehicle Code section 23152 (fourth or more DUI), California Vehicle Code section 23153 (DUI causing injury), California Penal Code section 192 (vehicular manslaughter), or California Penal Code section 191.5 (vehicular manslaughter while intoxicated or gross vehicular manslaughter while intoxicated).

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