Felony DUI in California – Penalties & How to Fight the Case

In California, driving under the influence of alcohol or drugs can be charged as a felony in only four situations:

1. It is your 4th DUI within 10 years,
2. You have a prior felony DUI conviction,
3. You cause an accident in which another person is physically injured, or
4. You cause a fatal accident.

The following chart summarizes the penalties for all of California’s felony drunk driving crimes.

California Felony DUI Offense	Sentence
Fourth or successive DUI (in 10 years)	Felony: 16 months, 2 years, or 3 years in county jail and up to $10,000 or Misdemeanor: Up to 1 year in jail and/or $1,000
DUI following a felony DUI	Felony: 16 months, 2 years, or 3 years in county jail and up to $10,000
DUI causing injury (VC 23513)	Felony: 2, 3, or 4 years in county jail and up to $10,000 or Misdemeanor: Up to 1 year in jail and/or $1,000
Vehicular manslaughter while intoxicated (PC 191.5(b))	Felony: 16 months, 2 years, or 4 years in county jail and up to $10,000 or Misdemeanor: Up to 1 year in jail and/or $1,000
Gross vehicular manslaughter while intoxicated (PC 191.5(a))	Felony: 4, 6, or 10 years in California State Prison and up to $10,000
Watson murder (DUI second-degree murder)	Felony: 15 years to life in California State Prison and up to $10,000

All felony DUI offenses are potentially probationable except Watson murder. Additional penalties include:

• an ignition interlock requirement for at least one year,
• a driver’s license suspension,
• being stripped of your gun rights, and
• being unable to vote while in prison or on parole.

In all other scenarios not discussed above, DUI is prosecuted under Vehicle Code 23152 as a misdemeanor carrying:

• up to 6 months in jail for a first DUI and
• up to 1 year in jail for a second DUI or third DUI in 10 years.

Judges usually suspend the jail sentence for a first DUI unless there are aggravating factors.

In this article, our California DUI attorneys will discuss in more depth the instances where DUI is a felony offense:

• 1. Fourth DUI
• 2. DUI After a Felony DUI
• 3. DUI with Injury
• 4. Vehicular Manslaughter
• 5. DUI as Murder
• 6. Defenses
• Additional Resources

1. Fourth DUI

In California, driving under the influence is a priorable offense. Priorable offenses have harsher penalties every time you are convicted of another identical or similar offense.

If you have three DUI convictions in the last ten years, VC 23550.5 permits California prosecutors to charge your fourth DUI as a felony. Past DUIs include:

1. California convictions for driving under the influence;
2. California convictions for wet reckless (VC 23103), which is a state-specific crime where a DUI gets pleaded down; and/or
3. Any out-of-state convictions that – if committed in California – would be equivalent to a DUI, such as DWI and OUI.

A fourth DUI carries up to $10,000 and a county jail sentence of:

• 16 months,
• 2 years, or
• 3 years.

However, since a fourth DUI is a wobbler, prosecutors can choose instead to prosecute it as a misdemeanor DUI carrying up to one year in jail and/or $1,000.¹

2. DUI After a Felony DUI

If you have at least one prior felony DUI conviction, VC 23550.5 requires that any future DUIs you pick up in California be prosecuted as a felony. This is true even if the new DUI has no aggravating circumstances.

The saying goes, “Once a felon, always a felon.”

California’s penalty for a DUI following a felony DUI is up to $10,000 and a county jail sentence of:

• 16 months,
• 2 years, or
• 3 years.²

3. DUI with Injury

If California police suspect you of physically injuring someone as a result of a DUI, you face charges for both:

• Vehicle Code 23153(a) – driving under the influence of alcohol causing injury, and
• Vehicle Code 23153(b) – driving with a blood alcohol content (BAC) of 0.08% or higher causing injury.

Specially, the statute says it is illegal to:

“while under the influence of an alcoholic beverage, to drive a vehicle and do any act forbidden by law, or neglect a duty imposed by law in driving the vehicle, which neglect proximately causes bodily injury to any person other than the driver.”

DUI causing injury is usually charged as a felony carrying up to $10,000 in fines and a county jail sentence of:

• 16 months,
• 2 years, or
• 3 years.

Which jail sentence the judge imposes turns on:

• your criminal history,
• the victim’s injuries, and
• any other mitigating or aggravating factors.

As a wobbler, DUI with injury can instead be charged with as a misdemeanor carrying up to one year in jail and/or $1,000 in fines. Though D.A.s usually treat these cases as felonies.³

4. Vehicular Manslaughter

If you are accused of causing a death while committing a DUI in California – and you were not behaving with extreme recklessness – you face one of two felony charges.

The less serious crime is vehicular manslaughter while intoxicated (PC 191.5(b)), which carries jail time of:

• 16 months,
• 2 years, or
• 4 years.

Prosecutors charge vehicular manslaughter while intoxicated when you were acting with “simple negligence,” which means you were just being careless and not otherwise behaving in a risky way.

The more serious crime is gross vehicular manslaughter while intoxicated (PC 191.5(a)), which carries prison time of:

• 4 years,
• 6 years, or
• 10 years.

Prosecutors charge gross vehicular manslaughter while intoxicated when you were acting with “gross negligence,” which means you were acting in a risky enough way that a reasonable person should have known that someone could get hurt.

With either of these two “vehicular manslaughter” charges, the D.A. has the burden to prove that you:

“while intoxicated, the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Vehicle Code Sections 23140, 23152, or 23153, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, or lawful act that might produce death, in an unlawful manner.”

Note that vehicular manslaughter while intoxicated is a wobbler, so prosecutors can choose to charge it as a misdemeanor carrying up to one year in jail and/or $1,000. Though this rarely happens.

Also note that if you have a prior DUI conviction – and you then allegedly cause a fatal DUI accident – you could face DUI 2nd-degree murder charges (discussed below) instead of vehicular manslaughter with intoxication. It does not matter if you were acting with only simple negligence.⁴

5. DUI as Murder

After a fatal DUI accident in California, prosecutors will bring DUI second-degree murder (PC 187) charges if they believe you acted with “malice aforethought.”

Malice aforethought usually means that you acted with a conscious disregard for human life, such as by speeding the wrong way on a one-way street. However, courts have also found that you can have “implied malice” merely by having a past DUI conviction – even if your actions on the day of the fatal accident were simply negligent.

As California’s most serious DUI with death crime, DUI second-degree murder carries 15 years to life in state prison. (This crime is also called “Watson murder” based on the California Supreme Court case People v. Watson which concerned a lethal DUI crash.)⁵

6. Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with felony DUI in California. We work with private investigators and accident reconstruction experts to convince prosecutors that their evidence is too weak to sustain a guilty verdict beyond a reasonable doubt.

Depending on your specific charge, the following legal defenses have proven very effective in getting prosecutors to dismiss felony DUI charges or else reduce them to misdemeanors.

1. Police lacked probable cause: If the police lacked reasonable suspicion to conduct a traffic stop and/or lacked probable cause to arrest you, your charge can be dismissed due to the police’s misconduct – even if you were committing DUI.
2. Poorly administered FSTs: Field sobriety tests (FSTs) are already unreliable, but they become useless when police fail to properly instruct you on how to take the tests. If the FST results are invalid, the DUI charge may be baseless.
3. Your BAC was legal: If your blood alcohol content (BAC) was below 0.08% (or 0.04% if you were in a commercial vehicle or had a passenger for hire inside), the D.A. will have a difficult time proving that you were impaired enough to justify criminal charges.
4. The DUI checkpoint was illegal: If you were pulled over at an illegal sobriety checkpoint (for example, it lacked proper signage), then arguably any checkpoint arrests were illegal too.
5. Your medical condition tricked the breathalyzer: Certain medical conditions such as GERD can cause breathalyzers to return a falsely high BAC.⁶ Here, we rely on your medical records to show prosecutors that your breath/blood test results had nothing to do with intoxication.

If you are charged with a fourth DUI, we would check your criminal record and perhaps find that the D.A. is mistaken about you having three past DUI convictions in the last ten years.

Similarly, if you are charged with a DUI following a felony DUI, we would check your criminal record and perhaps find that the D.A. is mistaken about you having a past felony DUI conviction.

Or if you are charged with DUI causing injury or death, we would argue that your actions were not the proximate cause of what befell the victim. Perhaps the victim themself or someone else entirely bears the fault.

Additional Resources

For more information, refer to the following below:

• California Department of Motor Vehicles – Includes publications about driving offenses and penalties and offers full text to the California Vehicle Code.
• Court-Approved DUI Alcohol Programs – A state-wide listing of court-approved DUI alcohol programs broken down by city.
• Ignition Interlock Device List – List of approved providers of breath interlock devices for your car to allow you to drive while serving your license suspension.
• California Victim Impact Panels – Directory of panels provided by MADD.
• DMV Suspended License Reinstatement – How to do it – Step-by-step guide by our California DUI defense attorneys.
• Getting your criminal record expunged – Step-by-step guide by our California DUI defense attorneys.

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Legal References