Elements of a Felony DUI

California DUI arrests can trigger a full range of charges based on the unique facts and circumstances of the case. Crimes in California are characterized as either:

  • Infractions (the least serious, and which carry a potential punishment of a fine and other requirements, but no jail time; examples are minor traffic cases, such as speeding);
  • Misdemeanors (crimes which are punishable by a maximum of up to one year in county jail); or
  • Felonies (crimes which are punishable by up to a year in county jail or a state prison sentence that is more than a year, and can include sentences of imprisonment all the way up to a life term, or even the death penalty).

The very definition of a crime as being an infraction, misdemeanor, or felony refers to the possible maximum punishment. If a crime does not carry the possibility of jail, it is an infraction. A maximum sentence of one year means the crime is a misdemeanor. The possibility of a longer sentence means the case is a felony.

DUI cases are generally misdemeanors. There are three circumstances that elevate a DUI case from a misdemeanor to a felony; if none of them apply to you, your DUI case is likely a misdemeanor DUI.

The cases that are felony DUI’s are:

  • Any DUI case where there is an accident and someone (other than the driver) is injured;
  • It is the driver’s fourth DUI arrest within 10 years (as calculated from arrest date to arrest date – dates of convictions are irrelevant); or
  • Any DUI arrest after a prior felony DUI conviction.

If your DUI arrest does not fall into one of these three categories, the DUI will likely be charged as a misdemeanor.

Felony DUI with Injury (California Vehicle Code section 23153)

Just like with misdemeanor DUI cases, there are two different theories to support a violation of Vehicle Code 23153, DUI causing injury. The first is that the driver was under the influence of alcohol or drugs, and while under the influence performed an illegal act or failed to perform a legal duty, and as a result, caused injury to another person.

The second theory that can support a charge of Felony DUI causing injury is that the driver had an blood or breath alcohol level of .08 or higher, and while they had the alcohol level, drove and while driving either performed an illegal act or failed to perform a legal duty, and as a result, caused injury to another person.

While these two theories may sound the same, they are very different. The first focuses on the condition of the driver as being under the influence, which can occur at any level (even a level below the legal limit, in the case of someone who is very sensitive to alcohol or other drugs). The second theory, of being above the legal limit of .08, ignores whether or not the driver is impaired, but is instead focused entirely on body chemistry.

In felony DUI cases based on injury (which are brought under California Vehicle Code section 23153), there will be a world of potential defenses that are very similar to a misdemeanor DUI case, including:

  • Whether or not the defendant meets the legal definition of impairment;
  • Whether this condition existed at the time they were driving (as opposed to a later time);
  • Whether the driver had a blood or breath alcohol concentration (BAC) of .08% or higher at the time of driving;
  • Whether the devices used to test the driver’s blood, breath or urine were functioning properly;
  • Whether the operator of the technology used to do the chemical test was properly trained;
  • Whether the testing was performed in accordance with that training;
  • Whether the driver performed an illegal act or neglected a legal duty; or
  • Whether the performance of the act or the neglect of the duty was the proximate cause of the victim’s injuries.

There are many more possible areas of defense, and consultation with a lawyer well-versed in these issues is mandatory for anyone who has been accused of felony DUI.

Felony DUI Based on Prior Convictions

Where the theory of the prosecution is that a DUI case is a felony because of the number of prior convictions, it raises a thorny legal issue. Normally, where someone has suffered prior DUI convictions, the jury in the current DUI case doesn’t get to know about them. This is because the prior convictions are not relevant to whether or not the accused motorist is guilty on the current case. The fact that someone may have been convicted of DUI in the past means nothing about their guilt on some future occasion. Also, if jurors in a current case were to hear about a history of DUI arrests and convictions, they may become biased against the defendant because of these past transgressions. For these reasons, in a misdemeanor DUI case where someone has one or two prior convictions, the trial is bifurcated, meaning that the jurors don’t hear anything about them when deciding the current charges.

However, all of that goes out the window in a felony DUI case based on prior convictions. Where the defendant is accused of their fourth DUI in a ten year span, it is no longer a misdemeanor DUI, it is a felony. And because the prior convictions are considered to be an essential element of the felony charge, the jurors get to hear about each of them. The notion that the prior convictions are not relevant, or that they are unduly prejudicial and inflammatory, is swept aside.

Therefore, one of the critical defenses in a felony DUI based on prior convictions is to attack the priors. This can be done on several grounds, most frequently because of a Constitutional infirmity, such as the defendant not being properly advised of their rights, or properly giving them up, at the time of the prior plea. If a fourth offense felony DUI can be reduced to a misdemeanor third offense DUI by attacking just one of the prior convictions, that is a significant victory for the accused.

Felony DUI Based on Prior Felony DUI Conviction

This category of felony DUI is straightforward, but in the eyes of many, carries with it the potential to be massively unfair.  Once a driver has been convicted of a felony DUI, whether that felony is by way of prior conviction for causing injury under California Vehicle Code section 23153, or based on prior convictions under Vehicle Code section 23152, any other DUI arrest can be charged as a felony.

This means that if the driver has a prior felony conviction for DUI with injury, and that driver is later arrested for what would ordinarily be a misdemeanor DUI, that misdemeanor is elevated to a felony just because of the prior record.