Is a DUI a felony or a misdemeanor?
One of the most common questions about DUIs is, Is a DUI a felony or a misdemeanor? There seems to be a misconception that all DUI cases are felonies.
Categories of Crimes and Offenses
California has three levels of criminal prosecution:
- Infractions, like speeding tickets, for which jail time is not a possibility;
- Misdemeanors, for which the maximum penalty is up to one year in jail, maximum;
- And Felonies, for which the potential maximum penalty, and in most cases the minimum penalties, are more than one year, meaning state prison time.
Most DUIs are misdemeanors.
What Can Make A DUI A Felony?
A DUI can only be a felony if one of two things exists:
- A DUI with an accident that causes “great bodily injury” to another; OR
- A DUI with three or more priors (so, a fourth time DUI or higher).
If any of those two situations exist, the law allows prosecution of a DUI as a felony. This always is at the discretion of the District Attorney.
The Law of Felony DUI Charges
Vehicle Code section 23153 applies, as a felony. That section states:
“23153. (a) It is 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, 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.
(b) It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood 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.
As a result, only if there is a fourth or more DUI, or an injury to someone other than the driver, is a DUI charge in California a felony. Anything without four or more priors, or without a serious injury, would be a misdemeanor DUI, not a felony.
Felony DUI Manslaughter or Murder
Another situation allows the prosecutor to charge a DUI case as a felony. If there is an accident where the victim dies, they can charge the driver with negligent manslaughter or even murder in California if they had a prior DUI.
“Wobbler” Misdemeanor and Felony DUIs
“Misdemeanor” and “felony” are emotionally charged words, and many people fear that DUI cases are felonies. But in most cases they are not.
DUI felonies are also termed “wobblers.” Wobblers are punishable either by confinement in county jail or state prison. Wobblers differ from straight felonies in the punishment imputed and in the post-conviction relief available. If a wobbler is punished by incarceration in county jail and probation is imposed upon release, then the defendant may petition the court to reduce the felony to a misdemeanor. If granted, the conviction will be considered a misdemeanor.
Commercial Driver DUI Felonies
If the driver of a commercial vehicle has a BAC of .04 percent or more, and causes injury through an illegal act, then the driver will be charged with a felony. A commercial vehicle is any vehicle which requires a class A or B license or a C license with an endorsement to drive a “tanker” vehicle.
Contact Us Today
Is a DUI a felony or a misdemeanor? If you think your case is a felony, or if you are not sure and you have any further questions, call us at (877) 942-3090 or use the “contact the firm” form on this page to let us know how we can help.