When is DUI a Misdemeanor in California?

In California, driving under the influence can only be charged as a misdemeanor so long as these three conditions are met:

1. it is a first, second, or third DUI (or wet reckless) within ten years,
2. no one was injured, and
3. the driver has no prior felony DUI convictions.

Under Vehicle Code § 23152, it is unlawful for a person to drive a vehicle who is:

• under the influence of any alcoholic beverage or drugs, OR
• has .08 percent or more of alcohol in his or her blood.

A person is under the influence of alcohol or drugs if:

• his or her physical or mental abilities are so impaired,
• that he or she cannot drive with the caution of an ordinary, sober person,
• under the same or similar circumstances. People v. Canty (2004) 32 Cal.4th 1266.

The punishment for a misdemeanor DUI conviction can include:

• probation for three to five years,
• up to one year in jail,
• home detention or work release (in some counties),
• fines and fees totaling several thousand dollars,
• alcohol and drug education classes,
• installation of an interlock ignition device,
• driver’s license suspension or restrictions (by the DMV).

In some misdemeanor DUI cases, the penalties can be increased if:

• the driver refused to take a chemical test,
• the driver’s blood-alcohol level was over .15%,
• a passenger was under 14 years of age,
• the vehicle was being driven 30 MPH or more over the speed limit on a freeway (20 MPH on streets or highways).

Are There Legal Defenses to a Misdemeanor DUI Charge?

Yes. Depending on the specific case, there are a variety of defenses that can be raised when fighting misdemeanor DUI charges. These defenses include:

• no probable cause for police to stop the driver,
• driver not under the influence,
• procedural violations by law enforcement,
• the officer did not see driving.

Please note that in the normal misdemeanor case a police officer cannot arrest a person unless:

• the offense was committed in the officer’s presence, OR
• the officer has a warrant (see Penal Code 836).

However, under Vehicle Code § 40300.5 there are statutory exceptions to the Penal Code 836 requirement for DUI. These exceptions include:

• the person was involved in a traffic accident,
• the person is observed in or about a vehicle that is obstructing a roadway,
• the person will not be apprehended unless immediately arrested,
• the person may destroy or conceal evidence of the crime unless immediately arrested,
• the person may cause injury to himself or herself, or damage property, unless immediately arrested.

When is DUI a Felony in California?

Driving under the influence is a felony in California if:

• it is a fourth DUI (or wet reckless) within ten years,
• someone was injured (besides the driver),
• the driver has a prior felony DUI.

Vehicle Code 23153 refers to DUI causing injury. This section states that:

It is unlawful for a person, while under the influence of any alcoholic beverage or drug, to drive a vehicle and do any act which causes bodily injury to any person other than the driver.

To qualify as bodily injury, the victim must be more than simply shaken up or frightened. But it is not a high standard. For example, in one California case, a pulled muscle was enough bodily injury to show that felony driving under the influence occurred. People v. Lares (1968) 261 Cal. App. 2d 657.

Please note that negligently or illegally causing bodily injury while DUI can be filed as either a felony OR a misdemeanor. This type of crime is known as a “wobbler.” The district attorney makes a filing decision based upon:

• the facts of the individual case,
• the extent of any injuries,
• the driver’s prior record.

The punishment for a felony DUI can be:

• up to three years state prison,
• fines and fees,
• alcohol and drug education classes,
• driver’s license suspension or restrictions by the DMV.

Certain felony “sentence enhancements” can add even more potential prison or jail time on felony DUI charges. For example:

Jeremy has never been arrested before. He goes to a casino, drinks five beers, then drives home. A car in front of him stops suddenly and Jeremy hits it. Three people are injured. One of the victims is 73 years old. With felony DUI enhancements, Jeremy is facing ten years in state prison:

• three years for felony DUI causing injury,
• a one-year enhancement for each additional victim (Vehicle Code 23558).
• a five-year enhancement for causing great bodily injury on a victim over 70 years old (Penal Code 12022.7(c)).

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