Is a DUI a Felony or a Misdemeanor?


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Is a DUI a felony or a misdemeanor?

Will I go to jail for DUI

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. So is a DUI a felony or a misdemeanor?

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. Almost all first-time DUI cases are normally charged as misdemeanors, not a felony.

What Can Make A DUI A Felony?

A DUI can only be a felony if one of two things exists:

  1.  A DUI with an accident that causes “great bodily injury” to another, or death; OR
  2.  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 bodily injury to someone other than the driver, is a DUI charge in California a felony. Anything without four or more priors, or without a bodily injury, would be a misdemeanor DUI, not a felony.

Manslaughter or Murder as a Felony DUI

Is a DUI a felony or a misdemeanor where a death occurs? Another rare 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.  Murder in a DUI case can only be charged in California if the person being charged had a prior DUI.

Punishment for a Felony DUI case

With a felony DUI, the sentencing judge has the choice to sentence to 16 months in State Prison, 2 years in State Prison, or 3 years in State Prison.  For that reason, a felony DUI is considered to be a “16-2-3” crime.

“Wobbler” Misdemeanor and Felony DUIs

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.

California Vehicle Code VC 23550 and 23550.5 charges, which allege the priors, are also wobblers. A person convicted of VC 23550 or 23550.5 shall be punished by imprisonment (or county jail for 235505.5), fined, have driving privileges revoked, and be labeled a habitual traffic offender for three years.

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

Is a DUI a felony or a misdemeanor in a commercial case? If the driver of a commercial vehicle with a DUI has a BAC of .04 percent or more, and causes bodily 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

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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.

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