In most cases, a DUI offense is a misdemeanor under California law. However, a DUI could be charged as a felony under certain instances. You will likely face felony DUI charges if you commit a fourth DUI offense within ten years, you have a prior felony DUI conviction, or if you cause an accident that leads to the death or bodily injury of another person. In all cases, you will face misdemeanor DUI charges for a first, second, or third DUI crime, provided no aggravating factors are present that would elevate the charge to a felony DUI.
DUI is a serious crime under California law. A DUI conviction on your record could affect other areas of your life, including the chances of landing your dream job. If you face DUI charges in Pasadena, CA, and require reliable legal representation, contact the Law Office of Ann Gottesman. Ann will thoroughly investigate your case and pursue the best possible defense to fight or mitigate your charges.
4th Time DUI Offense
DUI is a priorable offense. This means that you will face enhanced penalties with every subsequent DUI offense you commit within ten years. When the judge is considering the penalty for a fourth DUI offense, they consider the facts of your case, including the blood alcohol content (BAC) and the presence of aggravating factors. If you face fourth DUI felony charges, you will be subject to the following penalties:
- Imprisonment in a California state prison for sixteen months, two years, or three years
- 30 months of mandatory DUI school
- The DMV could label you a habitual traffic offender, commonly abbreviated as HTO.
- A 4-year driver's license suspension – you may be eligible to obtain a restricted license to drive during this period if you agree to install an IID, attend the DUI class and purchase an SR22 policy.
- You could face fines that range between $390 and $1000
Upon committing a 4th DUI offense, the only way to avoid a license suspension is by winning both the DMV hearing and the DUI criminal case. However, if you install an IID, you can continue driving freely (with some exceptions such as a refusal). If you face a fifth DUI conviction within a 10-year lookback period, you will face the same penalty as the person who commits a fourth-time DUI. However, the court could impose more extended imprisonment. There is no limit to the number of DUI convictions you can get under California law. The more DUI convictions you get, the harsher the penalties you will face.
DUI Crimes That Count As Priors
The following DUI offenses will count as prior offenses:
- Driving under the influence as outlined by VC 23152(a)
- DUI with injury, outlined by VC 23153
- Driving with excessive BAC outlined by VC 23152(b)
- Wet reckless outlined by VC 23103.5
- Out-of-state convictions for DUI offenses that you commit out of California will also count as priorable offenses if the state in which you were convicted has a DUI statute similar to those in California.
- Your previously expunged DUI convictions
The prosecutor will rely on the court records and the DMV records to prove that you have previous DUI convictions. The prosecutor could also present additional evidence like records indicating that you have completed previous drug and alcohol education programs.
Causing Injury Or Death Of Another Person
You will face felony DUI charges if another person suffers significant injury or death because of your driving under the influence. The prosecutor must prove that in addition to driving under the influence, you also committed an additional vehicle code violation or operated your vehicle in a negligent manner. If you commit DUI and someone sustains significant bodily injuries or dies, the prosecutor could bring charges against you in the following manner:
Charges Under Vehicle Code 23153
The California vehicle code 23153 explains the offense of DUI with injury. You could be liable under this law if you drive while under the influence and cause bodily harm to another person. The prosecutor will have to prove the following elements to charge you under VC 23153:
- You violated the California DUI laws
- As you violated the DUI laws, you broke an additional law or acted negligently
- Your negligence or an unlawful act caused another person’s injury
You could violate the California DUI laws if you do any of the following:
- Operate a vehicle with a blood alcohol content that exceeds 0.08%
- You drive under the influence of alcohol. Driving under the influence means that your physical or mental capabilities are impaired/limited by alcohol.
- You drive under the influence of drugs or the combined influence of both drugs and alcohol.
If you were operating a commercial vehicle, the prosecutor only needs to prove that your blood alcohol content was a 0.04% or higher while driving. If you are under the influence, your physical or mental abilities are impaired. It means that you cannot drive with the same characteristic or caution as a sober person under the same circumstances. In the case of being intoxicated with drugs as outlined by vehicle code 23152f, the drugs could be prescription, over-the-counter, or illegal drugs.
You will violate the per se law if you drive with more than 0.08% BAC. California law presumes that if a driver's BAC is 0.08% or more, the driver is intoxicated regardless of whether the driver was impaired or not. California law under vehicle code 23153 states that in addition to being under the influence, you should have acted negligently or broken the law, causing another person's injury. The punishment for DUI with injury when charged as a felony are:
- Imprisonment in a state prison for 2,3 or 4 years
- If the victim sustained significant bodily injury, you could face additional and consecutive three-six years imprisonment.
- For every additional person who sustains an injury, you will be subject to an additional and consecutive one-year imprisonment.
- You will have to pay fines that range between $1015 and $5000
- Being labeled a habitual traffic offender
- A court-approved DUI school for 18 to 30 months
- The DMV will revoke your driver's license for five years. However, you could continue driving without restrictions if you install an IID in your vehicle.
Gross Vehicular Manslaughter Under The Influence
You could face charges under California PC 191.5(a) for gross vehicular manslaughter while under the influence or intoxicated. You violate this statute if you operate a vehicle while drunk and you drive with gross negligence, causing the death of another person. The prosecutor must prove the following elements to charge you under this statute:
- You operated a vehicle while under the influence of drugs or alcohol
- While driving, you committed an infraction or misdemeanor offense, or a lawful act that could cause death
- While committing the infraction or the misdemeanor, you acted with a gross negligence
- Your gross negligence caused the death of another individual. Acting with gross negligence implies that you acted recklessly, which created a high risk of significant bodily injury or death.
- It should be apparent that a reasonable individual would have been aware that acting in that manner could pose a high risk.
The prosecutor could charge the violation of PC 191.5(a) as murder or gross vehicular manslaughter while under the influence. Either way, the crime is an automatic felony. The penalties for violation of PC 191.5(a) are:
- Formal or felony probation
- Imprisonment in a California state prison for 4, 6, or10 years
- A fine of not more than $10,000
You will face stricter penalties if you have prior DUI convictions. You will be subject to a state prison imprisonment if you violate PC 191.5(a) and you have previous convictions for any of the following:
- VC 23153
- PC 192.5(a) or (b) — vehicular manslaughter in operating a boat
- Vehicular manslaughter (gross or ordinary) under the influence
- Gross vehicular manslaughter under PC 192(c)
Penal Code 191.5(b)
You could face felony charges under penal code 191.5(b) if you drive while intoxicated and engage in another negligent act, causing another person's death. The prosecutor should prove the following to charge you under this statute:
- You operated a vehicle while under the influence of drugs or alcohol
- You committed an infraction or misdemeanor with ordinary negligence
- Your negligence caused another person’s death
A felony violation of PC 191.5(b) is punishable by the following:
- Imprisonment in state prison for up to four years
- A fine tof up to $10,000
- Or, if filed as a misdemeanor, the punishment will be up to one year in county jail and $1000 fine (A PC 191.5(b) violation is a “wobbler” so it can be punished as a misdemeanor or a felony).
Also known as DUI causing death, Watson's murder is a form of second-degree murder, outlined under PC 187. You could face charges under this statute if you drive under the influence, killing another person, yet you have a prior California DUI conviction. The following elements should be evident for you to face Watson murder charges:
- You committed a deliberate act that caused another person’s death (the deliberate act could be drugged or drunk driving)
- The natural consequences of this act were dangerous to human life
- You acted with a conscious disregard of human life
For DUI murder charges to apply, you do not need to have intended to kill the victim as for a first-degree murder. The prosecutor will only need to prove that you acted with malice. This means that you disregarded the danger or the risk associated with driving under the influence. The prosecutor can prove that you acted with malice if:
- You had previously read and signed a Watson admonition when you committed a previous DUI offense.
- You had attended a court-approved DUI school for a prior DUI offense
- You understand the risks of driving while drunk
Watson murder(second-degree) murder is a felony punishable by:
- Imprisonment of fifteen years to life imprisonment in a state prison in California
- A fine of up to $10,000
- You will also get a strike on your record pursuant to the three-strikes law. A strike on your record will lead to a double sentence for any additional felony offense you commit. If you have two strikes on your criminal record and commit another strike felony, you will be subject to a compulsory 25 years to life imprisonment in state prison.
Even after being convicted of DUI murder, you could face additional charges for the surviving victims who sustain significant or moderate injuries:
- You will be subject to an additional three to six years for every surviving victim who sustains a significant bodily injury.
- You will face an additional year to three years imprisonment for any surviving victim who sustains less severe injuries.
The specific felony charges that the prosecutor brings against you after committing a felony DUI crime will depend on your criminal history and the specific facts of your case.
When You Have A Prior Felony DUI Offense
You could face felony DUI charges if you commit a DUI crime and have a prior felony DUI conviction. You will face felony charges even if the subsequent offense is a misdemeanor DUI offense with no aggravating factors. You are likely to be in this situation if you commit a DUI crime and you have a prior conviction for:
- A DUI offense that caused injury or death of another person and were charged as a felony
- You have multiple DUI offenses, so the last conviction was charged as a felony
How To Fight Felony DUI case
A felony DUI conviction has detrimental consequences, including imprisonment in a California state prison, driver's license suspension, heavy fines, and a harmful impact on your criminal record. A felony DUI conviction is severe because it can carry a prison term instead of a county jail term. Sometimes, however, the prosecutor will have issues proving their case. It is important to have a knowledgeable DUI attorney who knows how to employ effective defenses in DUI cases. Some of the defenses that you can use to fight a felony DUI charge include:
Improperly Administered Field Sobriety Tests
During a DUI investigation, the law enforcement officer administers a series of physical and mental exercises commonly known as field sobriety tests (FSTs). If you perform poorly in the FSTs, the police take it as a sign that you are intoxicated with drugs or alcohol. Some of the typical FSTs that the police may conduct after arresting you are:
- Walk and turn test
- Horizontal gaze nystagmus
- One-leg stand
The police will look for the following signs as they administer the field sobriety tests:
- The driver’s ability to follow instructions
- Body or leg tremors and eye tremors
- Characteristics of the eyes (HGN)
- How the driver sways while undertaking the FSTs
- Any unusual statements or sounds that the driver makes while performing the FSTs
California law requires the law enforcement officers to conduct the FSTs under certain conditions and ensure that the driver is not at risk of falling. The police should only conduct the FSTs on a surface that is hard, dry, level, and non-slippery. The suspect should have sufficient room to perform the exercises, and the area should be well lit. The testing area should also be quiet so that the accused can hear the officer’s instructions properly. Although the science does not even show that performance on these tests reliably correlate to a specific alcohol level, it can be helpful for a defense lawyer to show a jury that the officer was not properly trained and was administering the FSTs improperly. Sometimes the field tests are conducted by officers not qualified to administer and evaluate the accused’s performance.
Rising Blood Alcohol
Even after you stop drinking, your blood alcohol content (BAC) continues to rise. The blood alcohol concentration continues to increase until it reaches the peak, usually thirty minutes to two hours after you stop drinking. Therefore, your BAC level might have been above the legal limit when you underwent the DUI testing. However, this does not mean that your BAC was above the allowable limits when you were driving. This rising blood alcohol limit is applicable when your BAC is close to or at the legal or permissible limit.
Your attorney could use this defense to create a reasonable doubt about whether your BAC was above the limit when you drove. With the proper legal representation, the prosecutor could dismiss your charges or offer you a plea bargain. It often requires the testimony of an expert witness to prove the concept of rising blood alcohol. The law considers the results of a DUI test accurate unless proven otherwise. Therefore, the defendant has the burden of proving that the chemical test results were inaccurate. To do this, your attorney could seek the help of a toxicologist to construct a BAC timeline.
GERD Or Acid Reflux
Certain medical conditions could make a driver record falsely high BAC results. These conditions include acid reflux, gastroesophageal reflux disease (GERD), heartburn, and a Hiatal hernia. These medical conditions make the stomach acid flow into the food pipe (esophagus), which connects the throat with the stomach. This then creates mouth alcohol leading to higher BAC readings than you should have. Some people are wrongly arrested every year for suspicion of driving under the influence, when in fact, they may suffer from severe heartburn, acid reflux, and GERD. Understanding how these medical conditions may affect the breathalyzer results could form a reasonable basis for your defense.
Contaminated Blood Samples
After a DUI arrest, the police could conduct a DUI breath test or blood test. In most cases, the police give drivers the option of choosing between a DUI breath test and a DUI blood test. The police could mainly require you to undergo a DUI blood test if they suspect a case of driving under the influence of drugs (DUID). You could also undergo a blood test if you are unconscious or if the police take you to a medical facility where there is no breathalyzer equipment:
- The law requires that only qualified medical technicians or professionals draw the blood sample.
- The blood draw site should not be sterilized with an alcohol-based product
- The blood should be well stored to prevent clotting and contamination
- The testing officer should maintain the identity and the integrity of the blood sample
The accuracy of the DUI blood test could be compromised if any of the following protocols are not followed. If there was improper handling or storage of your blood sample, your attorney could present a legal defense to have the results of the blood tests excluded from the evidence against you.
The Accident Was Not Your Fault
This defense will mainly apply in a case of DUI causing injury where you cause an accident while under the influence and another person suffers injuries. Your attorney will work with an accident reconstruction expert to determine what happened and whether the accident was your fault. As the accident reconstruction experts evaluate the accident scene, they will consider several factors like:
- Road conditions
- Weather conditions when the accident occurred
- Damage to the vehicle
- Any other relevant evidence
The police will automatically assume that you are liable if they arrive at an accident scene and realize that you are intoxicated. However, this is not always the case. At times, the accident could have occurred due to other factors that were not the driver's fault. If the prosecutor cannot prove beyond reasonable doubt that your intoxication and negligence caused the accident, he or she could be willing to reduce your charges.
You Faced An Emergency And Acted Reasonably Under the Circumstances
Still, this defense could apply in a case of DUI causing injury or a felony gross vehicular manslaughter under the influence. The law requires a driver to use the same level of care and judgment as an ordinary, careful individual would when faced with an emergency. The prosecutor would not accuse you of negligence or gross negligence if you acted reasonably under the circumstances. In addition to the legal defenses outlined above, other legal defenses that you could use to fight a felony DUI charge are:
- The police did not have a reasonable suspicion to conduct a traffic stop
- The police had no sufficient probable cause to execute a DUI arrest
- The breathalyzer equipment was faulty or wrongly calibrated
Expunging A Felony DUI Conviction
If you are wondering whether you could be eligible for expungement after a felony DUI conviction, the answer is yes. However, the following conditions apply for you to qualify for expungement:
- You were never incarcerated in a state prison
- You completed probation.
As long as you served some time in state prison, you are not eligible for expungement. However, if the court sentenced you to felony probation instead of imprisonment, you could qualify for an expungement.
Find A DUI Attorney Near Me
When the prosecutor accuses you of committing a felony DUI offense, it is advisable to contact an experienced DUI attorney to help you prepare a strong defense. Attorney Ann Gottesman provides passionate and reliable legal services to her clients in Pasadena, and the surrounding Los Angeles are in California. Call Ann at 626-710-4021 to speak to her directly!