Misdemeanor vs. Felony DUI / DWI

DUI / DWI offenses are charged as either misdemeanors or felonies. Most first, second, and third drunk-driving arrests are charged as misdemeanors. A driver who is involved in an accident, kills or injures another person, or who is arrested on a fourth DUI within 10 years almost always is charged with a felony. A California attorney who specializes in drunk-driving defense will evaluate each case to determine how it most likely will be charged.

The amount of court punishment faced by a suspected drunk-driver varies greatly, depending on whether the case is charged as a misdemeanor or a felony. Felony defendants face far greater penalties than those accused of a misdemeanor.

A skilled DUI / DWI criminal defense attorney will fight to negotiate a plea bargain that reduces a drunk-driving charge from a felony to a misdemeanor. A driver who agrees to this type of plea bargain faces far fewer penalties than a driver convicted of a felony.

The minimum penalties in California for first-time misdemeanor DUI / DWI drivers is three years of informal probation, fines, penalties and assessments totaling about $1,500, and a three-month alcohol education program, which will be enhanced to a six-month program if the defendant refused a chemical test or had a blood alcohol content (BAC) of .20 percent or greater.

In addition, the court will restrict the defendants drivers license for three months a separate action from the six-month DMV suspension. The driver will be eligible for a restricted driver's license after one month.

The statutory minimum penalty for a second misdemeanor DUI / DWI within 10 years is similar in some ways to a first offense. However, the defendant will be sentenced to 10 days is county jail, and the alcohol education program will be increased to 18 months. In addition, the DMV will suspend the defendants drivers license for two years. The defendant will be eligible for a restricted license after one year.

On a third misdemeanor DUI / DWI within 10 years, the defendant will be sentenced to 120 days in county jail and the DMV will suspend the defendants drivers license for three years. The defendant will be eligible for a restricted license after two years.

Under California law, a drunk-driving offense becomes a felony if, in addition to the misdemeanor elements, it can be proved that the driver committed any illegal act or neglected a legal duty; or caused personal injury to another indvidual by the act or neglect. Also, a felony can be charged when the accused has three prior misdemeanor DUI / DWI convictions within 10 years of the current alleged offense.

A defendant convicted of felony DUI / DWI drunk-driving who was involved in an accident will be required to pay restitution to the victims. A separate restitution hearing will be held.

If the drunk-driving charge is upgraded to a felony because it is the drivers fourth offense in 10 years, he or she faces a sentence of 180 days in jail in addition to fines, assessments, penalties, and probation. The driver will be required to participate in an 18-month alcohol education program and faces a four-year driver's license suspension. A restricted license may be obtained after three years.

Obviously, there are enormous benefits to being charged with a misdemeanor rather than a felony. An experienced DUI / DWI defense attorney may be able to broker a plea agreement that allows a defendant to plead guilty to a reduced charge that carries much less harsh penalties.