When is a DUI a Felony or Misdemeanor in California?

All DUI convictions require that the prosecutor prove: (a) You were driving with a blood alcohol level that exceeded the legal limit, or (b) You drove under the influence of alcohol or drugs so that your physical or mental abilities were impaired and you could not drive as well as a sober person.

Prosecutors can file felony charges in DUI cases under 5 scenarios:

If you have been convicted of three or more DUI prior offenses within the last ten years, any further offenses will likely be charged as felony DUI in California. The ten year look back period is based on the date of offense. Prior offenses can include:

• Driving under the influence of alcohol or drugs
• “Wet reckless” (23103 vc)
• Conviction outside California for an offense equivalent to DUI
• Expunged convictions for any of the above

Once you have been convicted of felony DUI, a future DUI offense will be charged as felony, regardless of it’s severity. Even simple DUI with no aggravating factors is charged as felony when there is a prior felony conviction within the prior ten years.

There is no ten year look back period limit for prior felony gross vehicular manslaughter while intoxicated convictions (191.5a pc, 191.5b pc or 192.5a pc) – any subsequent DUI offense would be charged as felony for life.

When driving under the influence causes injury to another person, prosecutors can charge misdemeanor or felony “DUI causing injury” (23153 vc). This is a “wobbler offense” where prosecutors have discretion how to charge based on the facts of the case and defendant’s prior criminal record.

To convict of felony DUI causing injury, prosecutors must prove the defendant: (a) drove under the influence of alcohol or drugs, and (b) while driving committed another violation of law or negligent act that caused bodily injury to a person other than themselves.

When another person dies because the defendant was driving under the influence, prosecutors can charge the following felony criminal code violations:

• Gross vehicular manslaughter while intoxicated (191.5a pc)
• Vehicular manslaughter while intoxicated (191.5b pc)
• Second degree murder, also known as “Watson murder” (187 pc)

Prosecutors will decide which offense to charge based on the case facts and criminal record of the defendant.

California has enhanced punishment for drivers that put minors at risk. If a driver is arrested for DUI with a minor in the vehicle, prosecutors have two charging options:

• 23572 vc DUI with a child under 14:This sentencing enhancement adds additional mandatory jail time to that of the underlying DUI charge.
• 273a pc child endangerment (child under 18):This serious criminal charge is filed in addition to the underlying DUI charge. Child endangerment can be filed as a felony or misdemeanor, depending on the case facts.

Felony 273a pc charges are usually reserved for egregious DUI behavior, such as very high blood alcohol levels, driving with a child not wearing a seatbelt or approved child seat, or other dangerous driving. Prosecutors use a child endangerment charge when they’re trying to prove the driver was DUI and willfully placing a minor in danger.

Defendants cannot receive both a 23572 vc DUI with child sentence enhancement and conviction for 273a child endangerment. Prosecutors may only charge one of them.