Felony DUI

In California, DUIs are typically charged as misdemeanors. However, a felony DUI may be charged in certain circumstances. There are three conditions which, if met, can turn a DUI into a felony:

  1. If you have 3 or more prior DUI convictions within 10 years
  2. If your DUI caused the injury or death of another person
  3. If you have previously been convicted of a felony DUI

The penalties for a felony DUI are severe and can include lengthy stays in jail or prison, massive fines, and loss of your driving privileges. Contact an experienced attorney immediately to determine the best possible defense for your particular case and fight to minimize the damage that a felony DUI can cause.


Felony DUI Criminal Defense Attorney in Ventura, CA

Jay Leiderman has years of experience defending everything from petty theft crimes to homicide. He is nationally recognized for his work on California marijuana law and complex interstate cases involving computer crimes. He is also board certified in Criminal Law through the California Bar Association – something accomplished by less than 1% of California lawyers.

If you or a loved one is facing a felony DUI conviction, you will want an aggressive criminal defense attorney with years of experience like Jay Leiderman. Timing is extremely important, and often the earlier you hire a competent lawyer the better the overall outcome you can expect. Don’t wait too long – call Jay Leiderman Law at (805) 654-0200 today for a free consultation. Together we can come up with an effective strategy for your defense.


Overview of Felony DUI Law in California


Felony DUI for 4th or Subsequent Offense

You may be charged with felony DUI if you have 3 or more prior convictions for DUI within 10 years (including convictions for another traffic violation involving alcohol or drugs, such as a “wet reckless”). The 10 years are counted backwards from the date of your most recent arrest for DUI, not from the current date. The relevant date for prior charges is the date of the offense, not the date of conviction.

Priors that count against you do include DUIs that have been expunged from your record, as well as DUIs from other states. For a conviction from another state to count against you, the out of state charge must be equivalent to a California DUI or reckless driving involving alcohol charge.


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DUI Causing Injury

A DUI may also be a felony if you cause an injury. Section 23153 of the California Vehicle Code governs DUI causing injury, but the state must first prove that:

  • you had a BAC of over .08% (the “per se” definition found in 23152(b) VC), or
  • you were driving under the influence of alcohol (the so-called “subjective” definition of DUI in 23152(a) VC)

You may therefore qualify for DUI if your BAC was under the legal limit of .08 as long as you the prosecution can show that you were still impaired by the alcohol in your system. Conversely, it is enough that you had over .08 BAC even if you do not think you were impaired. If drugs were involved instead of or in addition to alcohol, the state may charge you with a violation of 23152(f) VC, driving under the influence of drugs.

The next element that must be met to be convicted of DUI causing injury is that you violated some kind of traffic law or were driving negligently. It is therefore not enough that you got into an accident if the accident was not a result of some traffic violation on your part, such as speeding, running a red light, or following too closely. Finally, the state must show that by breaking a traffic law or driving negligently, you caused injury to one or more people.


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DUI Causing Death

DUIs causing death are most serious kind of felony DUI. Depending on your criminal history and the circumstances of your case, a DUI resulting in death can be charged as:

  • Vehicular manslaughter while intoxicated as defined in Penal Code 191.5(b) PC
  • Gross vehicular manslaughter while intoxicated under 191.5(a) PC
  • Murder, as found in Penal Code 187 PC.

Penal Code 191.5(b) is sometimes called vehicular manslaughter while intoxicated with ordinary negligence. The three elements are similar to DUI with injury, except a death resulted instead of just an injury:

  • You were driving under the influence or with a BAC over .08%
  • You violated a law other than a felony or drove negligently
  • Your violation or negligence caused a death

Penal Code 191.5(a), gross vehicular manslaughter while intoxicated, is the same except you displayed gross negligence instead of ordinary negligence. Ordinary negligence is the failure to exercise the same reasonable care that an ordinary person would exercise. Gross negligence involves deliberately ignoring the duty to exercise reasonable care and acting recklessly in such a way that is foreseeably likely to cause serious injury or death. Driving far in excess of the speed limit is probably gross negligence, for example, although the difference between the two standards is not clear-cut and is matter for courtroom argument.

In rare extreme cases, a DUI can also be charged as murder under Penal Code 187 PC.  This is called a “Watson murder” after a case heard by the California Supreme Court, People v. Watson (1981), which found that second-degree murder can be charged for DUIs involving death if the defendant acted with “implied malice”.

To be charged with murder for a DUI in which someone was killed, you must have at least one prior DUI conviction and have signed a “Watson admonition”, also called a Watson advisement or Watson warning. Most DUI convicts are required to sign a Watson advisement after conviction which states that you understand that you can be charged with murder if someone is killed in a subsequent DUI. Even if you did not sign such a statement, you will be considered to have been put on notice about the possibility of DUI murder if you attended DUI school following a previous conviction.

The purpose of this notice is to meet the element of second-degree murder that a defendant act with “malice aforethought”. If you kill someone while driving under the influence after having been warned of the dangers, you are said to show “implied malice” by deliberately disregarding the risk, thus showing a reckless disregard for human life even if you did not intend to hurt anyone.


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Conviction of a Previous Felony DUI

The final way to be charged with felony DUI is if you have been convicted of any prior felony DUI at any point previous to your current DUI. There is no 10-year time limit in the case of a previous felony conviction.

While DUI causing injury and 4th DUI can be theoretically be charged as either a misdemeanor or a felony (though a misdemeanor for these charges is very rare), being charged with any DUI after already being convicted of a felony DUI will automatically result in the new charge being a felony.


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Penalties for Felony DUI

Any felony DUI charge carries stiff penalties.  Penalties for a 4th DUI include 16 months, 2 years, or 3 years in state prison, a fine up to $1,000 and much more in related fees, as well as license suspension for up to 4 years. In addition, you may be given up to 30 months of DUI school and up to 5 years of felony probation.

For a felony DUI causing injury, up to 16 years in state prison is possible depending on the number and extent of injuries caused, as well as up to $5,000 in fines (much more with additional fees and victim restitution). You may also be subject to 18 or 30 months of DUI classes and 5-year revocation of your license, although you may be allowed to drive if an Interlock Ignition Device (IID) is installed for a year or more. These devices come with costly installation and maintenance charges.

The penalties for a DUI causing death will vary depending on the type of offense charged. In some cases, a lifetime sentence in state prison is possible.


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Additional Resources

Centers for Disease Control, Drunk Driving in California Factsheet – A helpful infographic that compares data about drunk driving in California in comparison to the national average. Information about DUI-related deaths is available, along with other data. The factsheet also contains information about preventative techniques that are proven to work.

California Department of Motor Vehicles, 2017 Annual Report of the California DUI Management System – A publication by the DMV that compiles information about DUIs in California. Includes information about accidents, arrests, convictions, license suspension/revocation, and recidivism rates.


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Ventura Lawyer for Felony DUI

A felony DUI can land you behind bars, cost a fortune, and leave you unable to drive. A skilled, experienced, lawyer can examine the prosecution’s case against you and develop a strategy to lessen the impact that a felony DUI can have on your freedom and livelihood.

Headquartered in Ventura, Jay Leiderman Law has defended people across Ventura County against all kinds of criminal charges, from major felonies to minor misdemeanors. We work with clients in Ventura, Simi Valley, Thousand Oaks, Oxnard, and across Ventura County, including in Moorpark, Ojai, Camarillo, Fillmore, Santa Paula, and Port Hueneme. Call (805) 654-0200 today for a free, confidential consultation.


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