When Is a DUI Charged as a Felony in California: Laws & Penalties

In California, most people arrested for driving under the influence (DUI) are charged with a misdemeanor, the less serious type of crime. However, in some circumstances, state prosecutors charge DUI offenses as a felony DUI, the more serious crime that can send the offender to state prison. It's important for California drivers to understand the difference between the two levels of offenses, and the facts and situations that lead to a felony DUI charge.

In California, driving while impaired by alcohol, drugs or any other substance is illegal under Vehicle Code Section 23152. This section also makes it illegal for anyone to drive with 0.08 percent or higher blood alcohol concentration (BAC) or for a commercial driver or a ride share driver with a passenger to drive with a BAC of 0.04 percent or higher. The state has a zero tolerance policy for those under 21 years old who drive with any alcohol in their blood, so even a 0.01 percent BAC is sufficient for a DUI. The BAC is determined by the police officer who administers a chemical test, like a breathalyzer or blood test.

Convictions for drunk driving carry many legal penalties and other costly consequences for the driver. These include fines, incarceration, suspension of driving privileges and the requirement to attend a court-approved substance abuse program or DUI school. DUIs also increase the amount that a person pays for motor vehicle insurance and can result in towing and storage fees for the vehicle, as well.

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California categorizes criminal charges as misdemeanors and felonies. Criminal acts that carry a potential sentence of a year or less in a county jail are misdemeanors. Those carrying a longer potential period of imprisonment are felonies, and the time is served in California state prisons, rather than in county jails. Some crimes are called "wobblers," and the prosecutor has the choice to charge the offense as a misdemeanor or as a felony, depending on the circumstances of the crime, including any aggravating factors, and the prior criminal record of the person accused.

Most California DUIs carry a potential penalty of a year or less in county jail and are therefore charged as misdemeanors. For example, a first DUI offense without any aggravating circumstances carries a potential penalty of six months in county jail. A second simple DUI offense carries a penalty of 96 hours up to a year in county jail, and a third DUI offense can bring a penalty of 120 days to a year in county jail, according to Shouse California Law Group. Aggravating circumstances, like excess speed or a very high BAC, can add additional penalties.

However, a fourth DUI within a 10-year period is charged as a felony, with incarceration time ranging from 16 months to three years in a California state prison. Note that the four convictions can include out-of-state convictions that would be the equivalent of a DUI if they had been committed in California. Likewise, any DUI will be charged as a felony if the driver has, in the past, been convicted of a felony DUI charge.

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If the motorist arrested for the DUI caused bodily injury to another person in the course of driving while intoxicated, the offense is charged under the California Vehicle Code Section 23153. The DUI may be either for driving under the influence of alcohol or drugs, or it can be for driving with a BAC above state legal limits. The person injured can be a passenger in the driver's vehicle, the driver, a passenger in another vehicle, or someone who is not in a vehicle at all.

This offense is a wobbler, and the prosecutor can either charge the person with a misdemeanor DUI or a felony DUI. This decision is made based on the circumstances of the crime, including how many people were injured and how seriously, and the driver's criminal history. If the DUI resulted in death, the driver can be charged with vehicular manslaughter DUI or murder DUI, both of which are felony offenses.

The potential penalties for a misdemeanor DUI and a felony DUI are very different. Anyone charged with a felony DUI will want to talk to a defense lawyer about the possibility of presenting a DUI defense.

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The potential penalties for a misdemeanor DUI arrest may seem severe to a first-time offender, but they are much less severe than for a felony DUI. The greatest difference between the two categories of DUIs involves the time and place of imprisonment.

A misdemeanor DUI without injuries may not carry jail time. A misdemeanor DUI with injuries carries a penalty ranging from five days to one year in county jail. However, a felony DUI with injuries can result in a sentence of between 16 months and 10 years in a California state prison. If the injuries resulting from the DUI were serious, an additional prison sentence of up to six years may be added to the felony penalty. If someone dies as a result of a DUI, the imprisonment term for a charge of manslaughter DUI is also up to 10 years, while a murder DUI can bring a sentence of 15 years to life.

The potential length of imprisonment is significant, but the place of imprisonment is also an important factor in a felony conviction. Prison time in a state prison is different than jail time in a county jail, and much more severe. County jails are usually smaller, locally run and generally safe, while a state-run penitentiary houses more hardened and potentially violent convicts.

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While imprisonment is the most severe consequence of a felony DUI conviction, there are also other penalties. These include license suspension of up to four years or even permanent license suspension, called revocation. In California, an individual can get their driver's license revoked for a felony DUI that causes serious injury to another person or for DUI manslaughter. Anyone convicted of DUI murder in California will have their license permanently revoked. Likewise, a driver with four or more DUIs will also have their license revoked.

Besides imprisonment, a conviction of felony DUI also carries significant fines and fees of up to $18,000, according to Los Angeles DUI attorney. The driver may have to attend DUI substance abuse school for up to 30 months, be required to install an ignition interlock device on their vehicle if permitted to drive at all, and may also receive up to five years of formal probation.

The convicted driver will also have the status of a convicted felon and have a criminal record when they get out of prison. This can disqualify a person from certain jobs and make it difficult to find housing, as well as take away other rights, like the right to own a gun.

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