Is DUI a Felony in California? | Misdemeanor vs. Felony DUI

Read Video Transcript
I’m Darren Kavinoky, founder of The Kavinoky Law Firm.

There are many different ways that a person can be charged for alcohol-related driving. This video is about being able to distinguish between a felony DUI and a misdemeanor DUI. From a legal standpoint, a felony is the more serious crime and could be punishable by up to a year in jail, or even longer in state prison. A misdemeanor is a less serious crime that is punishable by no more than one year in jail. In the world of DUI, whether it’s a felony or a misdemeanor, it’s serious business and is nothing to take lightly.

So, there are 3 things that will cause a DUI to be a felony as opposed to misdemeanor:

1) Someone other than the driver is injured or killed, even if it is the driver’s first offense.

2) It is the fourth offense within 10 years, and this is calculated from arrest date to arrest date, the dates of conviction do not matter.

3) The driver has previously been convicted of a felony DUI.

Once you are convicted of a felony DUI, all later DUI arrests are felonies, even if no one is injured. DUI Cases that do not fall into these 3 categories are considered misdemeanors; however, even a misdemeanor DUI can mean serious jail time.

The first offense can mean anywhere from no jail up to a maximum of six months in jail, however there are some courts that do require jail time on a first time conviction. The second conviction means a minimum of 96 hours in jail and a maximum of one year. The third conviction means a minimum of 120 days in Jail and a maximum of one full year.

In addition to these jail terms, there are numerous direct and indirect consequences, suspension of driving privileges, installation of ignition interlock deceive (Brethyl. in vehicle), lengthy drug and alcohol education programs, and enormous fines. So as you can see, even a misdemeanor can mean serious punishment.

Felony convictions can involve much lengthier sentences. A first time felony DUI involving injury can mean up to three years in prison, with more time added based on the number of injured people. If there is a fatality, it can mean up to 10 years in prison. It is even possible to charge a DUI resulting in someone’s death as a murder, which means a sentence of 15 years to life. Whether you are watching this due to a first offense DUI or a more serious legal issue just know there are lawyers who focus on DUI cases and can navigate your case to a successful conclusion.

From all of us here at The Kavinoky Law Firm, we hope this helps


In California, drunk driving offenses are charged as either a misdemeanor DUI or a felony DUI. 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 DUI in California. 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 DUI. Felony defendants face far greater penalties than those accused of a misdemeanor.

A skilled DUI defense attorney will fight to negotiate a plea bargain that reduces a drunk-driving charge from a felony to a misdemeanor or, in some cases, reduces a misdemeanor to a wet and reckless or dry reckless. A driver who agrees to this type of plea bargain faces far fewer penalties than a driver convicted of a felony.

First Offense DUI Penalties

The minimum penalties for a California DUI first offense 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.

Often overlooked, however, is the misdemeanor criminal conviction that will remain on the defendant’s record for life where it can complicate (or even prevent) employment, and professional licensing.

In addition, the court will restrict the defendant’s 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.

Second and Third Offense DUI Penalties

The statutory minimum penalty for a 2nd DUI in California within 10 years is similar in some ways to a first offense. However, the defendant will be sentenced to 10 days in county jail, and the alcohol education program will be increased to 18 months. In addition, the DMV will suspend the defendant’s driver’s 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 defendant’s driver’s license for three years. The defendant will be eligible for a restricted license after two years.

Felony DUI Penalties

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 individual 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, faces a four-year driver’s license suspension, and may have to perform community service. 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.