In California, a first-time driving under the influence (DUI) is a misdemeanor offense. However, there are a few exceptions where even a first time DUI may be charged as a felony.
Under Vehicle Code section 23550.5, subdivision (b) a conviction for a first time DUI within a ten-year period can result in a felony conviction punishable by imprisonment in state prison if the defendant had been previously convicted of gross vehicular manslaughter while intoxicated (Penal Code section 191.5) or vehicular manslaughter (Penal Code section 192.5). While section 191.5 has the element of intoxication, section 192.5 does not. Furthermore, while the DUI statutes generally have a ten-year look back window in prosecuting multiple DUI offenses, section 23550.5(b) does not.
Example: In 2008, Henry, then 18 years old was racing his car in an unlawful exhibition of speed in violation of Vehicle Code section 23109. His vehicle went out of control and broadsided another vehicle killing both occupants in that vehicle. Henry was not intoxicated. He was convicted on two counts of vehicular manslaughter (Penal Code section 192.5). Twelve years later, Henry was arrested for driving under the influence pursuant to Vehicle Code section 23152, subdivisions (a) and (b). It was his first ever DUI arrest. Normally a first time DUI is a misdemeanor and very rarely, if ever, is punished by any jail time at all. But because Henry had a historical conviction of vehicular manslaughter, his DUI was charged as a felony and he faced a potential sentence of imprisonment.
Another circumstance that may—and often does—result in a first time DUI being charged as a felony is if an injury to another is caused by driving under the influence (Vehicle Code section 23153) or if driving under the influence causes the death of another as noted in the aforementioned Penal Code section 191.5.
The above violations are all “wobblers.” That is, they can be charged as a felony or a misdemeanor. Note that these violations apply to driving under the influence of alcohol OR drugs.
How the prosecution ultimately charges the offense will depend on several factors, most prominently, the driver’s criminal history, the drivers blood alcohol content (BAC), and the circumstances of the offense. For example, a driver who causes the injury of another person by his or her driving under the influence, and then flees the scene will most certainly be charged with a felony, and if convicted, will be exposed to enhanced sentencing.
If prosecuted and convicted as a misdemeanor, the maximum penalty of confinement is one year in county jail. Felonies, on the other hand, can result in a lengthy sentence in state prison.
Felony DUI charges are serious with potentially severe consequences. If you have been charged with a DUI, it is important to seek the advice of an experienced DUI defense attorney who can help you understand the charges against you and the possible penalties you may face. A skilled DUI defense attorney will be able to identify any defenses you have. In some cases, such as when there is a violation of the driver’s constitutional rights, your defense may result in the dismissal of the charges. More commonly though, an experienced DUI defense attorney is able to negotiate reduced charges and/or penalties.
If you are facing felony DUI charges, or any DUI charge, you should seek the assistance of a qualified DUI attorney who can help you navigate the legal process and protect your rights.
Orange County DUI defense attorney William Weinberg has represented DUI clients for over 25 years. His goal is always to obtain the best possible outcome for each client and he has the expertise to attain that goal. He is available for a complimentary consultation to review your DUI case. You may contact him at 949-474-8008 or by email at email@example.com.