Typically a DUI in California is a misdemeanor which means, by definition, that it is punishable by no more than a year in jail. So when can a California DUI become a felony?
The first way that a DUI can become a felony is when the defendant has suffered three prior DUI convictions within the past ten years. Priorable DUI charges include driving under the influence (California Vehicle Code section 23152), driving under the influence with injury (California Vehicle Code section 23153), wet-reckless (California Vehicle Code section 23103.5), and out-of-state convictions that qualify as a priorable conviction.
To prove priorable convictions the prosecutor may use court records from the prior cases as well as Department of Motor Vehicle records. The prosecutor may also use “expunged” (California Penal Code section 1203.4 dismissal) priors in enhancing a DUI charge if the conviction occurred within the 10-year period.
The second way that a DUI can become a felony is when the drunk driving causes an injury or death. California Vehicle Code section 23153 makes it unlawful 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.
Unlike a fourth or more DUI, a DUI causing injury or death may be charged as either a felony or a misdemeanor. Whether a prosecutor charges a violation of California Vehicle Code section 23153 as a misdemeanor or a felony depends on several considerations such as the level of intoxication, the seriousness of the injury, the defendant’s prior criminal history, and any other aggravating factors.
It should be noted that if a DUI results in a death and the defendant has not suffered any prior DUI offenses, the defendant will more likely be charged with vehicular manslaughter while intoxicated or gross vehicular manslaughter while intoxicated under the California Penal Code.
If a DUI results in a death and the defendant has suffered a prior DUI conviction within ten years, they can and most likely will be charged with second degree murder. This is known as the “Watson Murder Rule.”
The last way that a DUI can become a felony is when the defendant suffered from a prior felony DUI conviction within ten years. The priorable felony offense can be a conviction of California Vehicle Code section 23152 (fourth or more DUI), California Vehicle Code section 23153 (DUI causing death or 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).
Even if the facts surrounding the current DUI charge are negligible and would otherwise warrant a misdemeanor DUI charge, if one of the aforementioned felony DUI-related convictions are present, the current DUI will still be a felony.