Misdemeanor vs. Felony DUI in California

By Joe Stone
California, a felony DUI conviction, substantial jail time
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If you're arrested for driving under the influence in California, you can be charged with either a misdemeanor or a felony. As a general rule, a first, second or third DUI arrest will be charged as a misdemeanor. A fourth DUI arrest in 10 years can be charged as a felony, as well as a DUI arrest involving an injury or death. If you have already a felony DUI conviction on your record, any subsequent DUI arrest will be charged as a felony.

Misdemeanor DUIs

The first time you're subject to a traffic stop for suspicion of DUI, you can be charged with two misdemeanor crimes and a chemical test shows your blood alcohol concentration is .08 or more: driving under the influence and and driving with an excessive BAC. If you're convicted, you'll receive informal probation for three to five years and pay fines, penalties and assessments totaling up to $1,000. You must complete a three or nine month counseling program unless your BAC was .20 or greater or you refused a chemical test. In this case, your counseling program will be nine months.

DUI "Look-back" Period

California amended its laws in 2007 to provide a 10 year "look-back" period for DUI convictions -- the prosecutor can look back 10 years to find a DUI conviction on your record that can be charged as a prior offense. Before 2007, the look-back period was only seven years. The 10-year period is counted from the date of the first arrest to the date of the current arrest. The look-back period is significant for DUI cases because penalty enhancements accompany multiple convictions within this period and the DUI can be charged as a felony instead of a misdemeanor.

Second and Third Offenses

If you're arrested and convicted of a second or third DUI within 10 years, the penalties are enhanced even for misdemeanor charges. Fines, penalties and assessments may increase, and a second or third DUI conviction can require completion of an 18-month or 30-month multiple offender alcohol education and counseling program. The court also has the discretion to require an ignition interlock device installed in your car if you're convicted of a third offense. The device permits your car to start only if you test as alcohol-free.

Felony DUI

If you suffer a fourth DUI conviction within 10 years or your DUI involved the injury or death of another person, the prosecutor has the discretion to charge you with a felony -- and probably will. You risk 16 months to three years in a state prison. If the case involves serious bodily injury or death, a prison sentence is very likely. The prosecutor must also charge a DUI as a felony if it's a third offense that causes or if your record shows a prior conviction for a felony DUI.

Probation for a DUI

California courts can also sentence you to probation for a DUI conviction. In this case, you must abide by certain conditions, including attendance at Alcoholics Anonymous and, of course, not driving after you've been drinking. If you're stopped on suspicion of a DUI again, you can't refuse a blood alcohol test.