Generally, when a person is arrested on suspicion of driving under the influence in California, it is a misdemeanor charge. Misdemeanors are punishable by no more than a year in jail. Sometimes, however, a California DUI can be charged as a felony, meaning that it can be punishable by more than a year in jail.
So when does a California DUI become a felony?
The first way that a California DUI can become a felony is if a drunk driver causes death or injury. 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.
A California DUI causing injury is known as a “wobbler.” This means that it can be charged as either a misdemeanor or a felony. 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.
If a drunk driver causes the death of someone and the drunk driver has not suffered any prior DUI convictions, the defendant will more likely be charged with vehicular manslaughter while intoxicated or gross vehicular manslaughter while intoxicated under the California Penal Code.
However, 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.” In short, the court’s view is that, because the person suffered prior convictions, they knew it was dangerous, yet they did it anyways knowing the risk to life.
The second way that a California DUI can be a felony is when a person 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. Out-of-state DUI convictions qualify as a prior DUI if they would be considered a DUI had the arrest occurred in California.
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.
Lastly, a California DUI can become a felony if a person suffered a prior felony DUI 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).