Felony DUI

It is unlawful to operate a vehicle while under the influence of alcohol or drugs in California. Whereas most first DUI crimes are prosecuted as misdemeanors, driving under the influence can also be a felony.  Being charged with a felony can be overwhelming. The consequences, if found guilty, may stay with you for your entire life.

With the help of a skilled DUI defense attorney, you may avoid these penalties. The attorney may be able to have your charges dismissed, so you don’t face any consequences, or have them reduced so you can face lenient punishments. If you are in Santa Ana, attorneys at Darwish Law can help you build a solid defense for your felony DUI charges.  Contact us as soon as you get arrested so we can have ample time to evaluate your case. It is critical to understand when you might be in danger of facing felony DUI charges, which this article explains.

Ways in Which a California DUI Can be a Felony

In California, felony drunk or drugged driving charges could occur in three different ways. Each has different potential consequences, but their penalties are generally similar. Let’s look at the instances that a DUI offense can be a felony.

  1. DUI Causing Injury/Death

When someone else suffers an injury or dies because you drove while intoxicated and either additionally violated another vehicle code or operated the vehicle negligently, prosecutors may charge you with felony DUI in any of these three ways:

  • DUI causing injury (VC 23153)
  • Watson Murder (DUI murder)
  • Gross vehicular manslaughter while driving under the influence (PC 191.5a) OR Vehicular manslaughter while driving under the influence (PC 191.5b)

Whatever charges you will face depend on the facts of your specific case and your criminal record.

  1. DUI causing injury (VC 23153)

DUI causing injury is defined under VC 23153 as driving while intoxicated and causing physical harm to someone else as a result. This is a wobbler offense. This means the prosecuting attorney may opt to charge it as a felony or a misdemeanor.

For the prosecutor to find you guilty of DUI causing injury, he/she has to prove these three facts (elements of the crime) beyond a reasonable doubt:

  • You were breaking drunk or drugged driving statutes.
  • In so doing, you violated an additional law, or otherwise acted negligently while driving
  • Your negligence or illegal act injured someone else

In California, you break DUI statutes by either:

  • Driving while intoxicated with alcohol. This means driving when your physical or mental abilities are distorted by alcohol.
  • Driving while intoxicated with drugs, or a combination of both alcohol and drugs
  • Operating a vehicle with a BAC level of .08% or higher, or a .04% BAC or higher in case you were driving a commercial motor vehicle.
  1. Watson Murder (DUI Murder)

DUI murder is a type of second-degree murder prosecuted under PC 187. It is charged when a person with a past DUI conviction kills another while driving while intoxicated. The term ‘Watson murder’ is derived from the Supreme Court case titled People vs. Watson. In this case, the court ruled that a drunken motorist who causes a deadly accident may be charged with second-degree murder if he/she acted with implied malice.

Implied malice or malice aforethought doesn’t require you to have ill will towards the alleged victim or the intent to cause the death of the victim. Instead, you act with implied malice when:

  • You deliberately commit an act (DUI in this case)
  • The probable and natural repercussions of that act are hazardous to people’s lives
  • You acted knowing that the action is risky to people’s lives
  • You deliberately act with conscious disregard for people’s lives

Historically, prosecuting attorneys have brought charges of DUI murder only when the accused has, at the minimum, one past conviction for DUI, and he/she attended a DUI School, or a Watson advisement was read to him or her in connection with the past crimes. A Watson admonition refers to a warning issued to a defendant found guilty of DUI in California. It warns that DUI is dangerous to a person’s life, and any subsequent conviction may result in murder charges.

However, none of the requirements we mentioned above are necessary. The prosecution can bring murder charges any time there’s a DUI-related death, and the prosecuting attorney can establish implied malice. It is considered to be implied malice when:

  • The motorist’s behavior showed a vicious disregard for human life
  • The facts indicate that the motorist knew about the danger his/her conduct created
  1. Gross Vehicular Manslaughter While DUI (PC 191.5a) or Vehicular Manslaughter While DUI (PC 191.5b)

The crime of gross vehicular manslaughter while DUI under PC 191.5a is described in the following manner:

  • You operated a vehicle when intoxicated with alcohol or drugs
  • While driving under the influence, you also committed another infraction, misdemeanor, or a legal act that could lead to a demise
  • You committed the infraction, misdemeanor or legal activity with gross negligence
  • Your grossly negligent behavior resulted in the death of someone else

Vehicular manslaughter while DUI is similar to gross vehicular manslaughter while DUI. The only difference is that vehicular manslaughter while DUI requires the defendant to have acted with ordinary negligence, not gross negligence.

  1. Multiple Past Convictions

Driving while intoxicated is what is called a priorable crime. By this, it means that every time you are found guilty of another drunk-driving or wet reckless offense, your jail or prison time increases. Priorable offenses carry stricter consequences and sentences each time you get convicted of another similar or same crime. In case you have had three or more past DUI convictions in the past ten years then get arrested for another DUI offense, you will most likely be prosecuted for felony DUI. As far as DUI is concerned, previous convictions include a combination of any of these:

  • VC 23152a DUI
  • VC 23152b driving with excessive BAC level
  • VC 23153 DUI causing injury. This includes negligent & gross vehicular manslaughter as per PC 191.5
  • VC 23103.5 wet reckless
  • An out-of-California conviction which, if it were committed in California would be equal to a drunk or drugged driving offense
  • Previously expunged convictions of any of the abovementioned offenses

For the prosecutor to show that you have several past DUI convictions, he or she must demonstrate that:

  • You operated a vehicle
  • When you were intoxicated with a BAC of .08% or higher
  • You have at least three past convictions as per the vehicle codes we named above within the past ten years

The ten-year timeframe is often referred to as a washout or look-back period. It encompasses the crime dates and not conviction dates.

Defending against felony DUI due to past multiple convictions

Like it is with other cases, your defense lawyer will first attempt to have your drunk-driving charges lowered to a lesser crime that’s hopefully not priorable. Or, he/she may try to have your charges dismissed altogether. When any of these two options are not possible, the attorney will carefully evaluate each wet reckless or DUI conviction to find out whether he/she can challenge it before the court based on evidentiary or procedural errors.

As we said earlier, DUI consequences increase with each subsequent conviction. Therefore, having even a single prior drunk-driving conviction struck off from your criminal record will significantly lower your sentence. It also may re-categorize a fourth DUI from a felony to a misdemeanor.

  1. Having a Past Felony DUI

If you are found guilty of ordinary misdemeanor DUI without any aggravating factors and you have at least one past felony DUI, then you’ll be prosecuted for a felony crime. This scenario may occur if you are convicted of DUI, and your past DUI resulted in injury/death and was a felony. Or, it can also happen if your past crime was a felony due to the multiple drunk-driving convictions you had (even though your present DUI occurred after the stipulated ten-year period elapsed).

Consequences of Felony DUI

The penalties of a California DUI can be severe. However, the punishment of a felony drunk or drugged driving can be devastating. These punishments depend on the specific cause for you being charged with the crime. Let’s look at how the various felony DUIs are punished.

The consequences for a felony drunk or drugged driving with an injury under Vehicle Code 23153 includes:

  • Two, three, or four years in prison
  • An additional & consecutive three to six years in prison if there’s any victim that suffered significant bodily injury
  • An additional & consecutive one to three years in prison for every victim that sustained any injury
  • A maximum fine of $5000
  • A DUI School program for eighteen or thirty months. The program has to be court-approved
  • A possible strike on your criminal record as per the Three Strikes Law in case any person apart from yourself sustains significant bodily injury
  • A habitual traffic offender status for up to three years
  • Driver’s license suspension for five years. You may be capable of continuing to drive without restrictions if you install an IID in your vehicle for one year or more.
  • Consequences for DUI murder

The punishment for Watson murder may include:

  • Between fifteen years and life imprisonment in the state prison
  • Up to $10000 in fines
  • A strike on your criminal record as per the Three Strikes Law

This sentence may increase if any surviving victims sustained injuries.

Penalties for gross vehicular manslaughter while intoxicated:

The possible punishments if convicted of PC 191.5a include felony probation, imprisonment for four, six, or ten years, and a maximum fine of $10,000.

Penalties for Vehicular manslaughter while intoxicated

This offense is a wobbler. Its felony punishment includes felony probation, sixteen months, two or four years of a prison sentence, a maximum fine of $10000, and a driver’s license suspension for one year.

The punishments for felony DUI with multiple prior convictions

If the felony DUI arises from having several past drugged or drunk driving convictions, your penalties will vary from one case to another based on:

  • The specific facts of the case
  • The BAC level of the defendant and other additional aggravating circumstances,
  • The number of previous DUI convictions the defendant has
  • When the defendant suffered those prior convictions.

The punishments for this kind of felony DUI include:

  • Between $390 and $1000 in fines
  • Sixteen months, 2 years, or 4 years in prison
  • Habitual Traffic Offender (HTO) status for up to three years
  • Probation for three to five years
  • DUI School program for thirty months
  • Probable further treatment like an alcohol or drug addiction program
  • Driver’s license suspension for four years. Under Senate Bill (SB) 1046 of 2018, you can continue driving, provided you keep an ignition interlock device (IID) installed in your car for three years.

Felony DUI crimes that arise from several past convictions are prosecuted harshly, and, therefore, need a solid defense. Later in the article, we shall look at the various legal defenses your attorney can apply in challenging the charges against you.

After four years of license suspension has ended, you will need to reapply for a new license. The process of acquiring a new license includes re-taking the driving and written tests. Since you have a Habitual Traffic Offender (HTO) status, should you get caught operating a vehicle at all at the time of your license suspension, you will face stricter punishments.

If you’re capable of obtaining a new driver’s license, you’ll need to have an IID on all the cars that you drive or own for whatever period the Department of Motor Vehicles (DMV) imposes.

Apart from these criminal consequences, you can also be subjected to administrative sanctions as well as experience collateral repercussions. These include:

  • Revocation of your professional license
  • You can be prohibited from collecting various government benefits
  • You could be forbidden from working in healthcare, education, or government
  • You may lose your job because of travel restrictions, etc.

These consequences may follow you for the rest of your life. After serving your criminal punishments, your criminal record will still reflect a felony conviction. This makes it difficult for you to return to your usual daily life. However, remember that you have the right to defend yourself in a court of law. Hiring a lawyer to deal with your case may help you achieve the best outcome there is.

Aggravating Circumstances that Can Elevate Your Sentence

If there are any aggravating factors associated with your DUI case, you will be subjected to sentence enhancements. How harsh penalties will be, largely depends on the specific elements in question, your criminal record, whether the victim suffered injuries or death, and your BAC level. The aggravating factors and their penalty enhancements include:

  • Reckless driving or excessive speed- Excessive speed refers to driving at 30 miles per hour over the stipulated speed limit on a highway or 20 miles per hour on the other roads. This aggravating circumstance carries an additional sixty days in county jail.
  • DUI with a passenger below 14 years- This factor carries an additional ninety days of a county jail or state prison. Also, you may be convicted of PC 273a, child endangerment offense. This is a distinct crime, which carries a maximum of six years in prison. However, note that you cannot be sentenced for both the DUI sentence enhancement and child endangerment
  • DUI causing injury or death- If this element is present in your case, you will face at least an additional two years in prison. You will also face an additional three to six years of a prison sentence if you caused substantial physical injury, and an additional one to three years for every injured victim and a fine of $5,000.

Refusing to take chemical tests- This factor carries an additional eighteen days in county jail.

Felony DUI Defenses

As a skilled DUI lawyer would tell you, being arrested for DUI, even a felony, doesn’t have to mean that you will be convicted. You can prevent life-changing DUI consequences, including license suspension, lengthy prison/jail time, and hefty fines by fighting the charges against you with a solid defense strategy. Here are the best defenses your attorney can apply:

  • Mouth alcohol caused a falsely elevated BAC Result

Falsely high blood alcohol content results may be a successful lawful defense to your DUI charges, especially if the prosecutor claims that your BAC was .08% or higher. Before administering the breath test, the police officer has to observe you continuously for fifteen minutes. This ensures that during this period, you don’t place any substance that contains alcohol in your mouth, for instance:

  • Medicines like cough syrup or homeopathic medicines
  • Drinks
  • Mouthwash or mouth spray

Also, the officer has to ensure you don’t burp, regurgitate, or belch. If you do any of these, it could bring alcohol into your mouth from the stomach. This creates a phenomenon called residual mouth alcohol, which works as a defense to charges of DUI.

How accurate a breath testing device is, depends on the measurement of deep lung air. However, if you blow into the equipment and there’s alcohol in your mouth, it mixes with lung air. This may cause your BAC to record a falsely high result.

  • Objective signs of being under the influence aren’t the same as being intoxicated in reality

Another valid way to fight DUI charges against you is challenging the prosecutor’s use of physical signs of intoxication to claim you were under the influence.

One’s physical appearance plays a significant role in a drunk or drugged driving investigation. The arresting officer will, without a doubt, attest that you were intoxicated since you had:

  • Slurred speech
  • Red & watery eyes
  • A flushed face
  • An unstable gait
  • The strong alcoholic odor on your breath

Coincidentally, all these objective signs of being under the influence are included in a printed drunk-driving arrest form (5.2.5 form). The police use this form when in their investigations. An officer may simply cross-check that you showed these symptoms without elaborating further.

An experienced DUI attorney can challenge your display of these signs by arguing that other reasons could have made these signs appear. For instance, a cold, allergies, eye irritation, and fatigue are all known causes of one having red eyes.

  • Field sobriety tests don’t correctly measure impairment

If you’re prosecuted for drunk driving in California, then the prosecutor’s proof includes the outcome of field sobriety tests.  Your lawyer may be capable of challenging the results as a defense strategy.  Often, the prosecution team depends heavily on field sobriety tests. The team almost always testifies that your performance on these tests was poor.

Consequently, they deduce that you are guilty of DUI. Your lawyer may successfully explain how coordination and balance during the administration of field sobriety tests could be affected by fatigue, nerves, your clothing, your natural physical coordination, flat feet, etc.

  • The officer did not conduct a proper fifteen-minute observation time frame

We mentioned earlier that the officer who arrested you needs to observe you continuously for fifteen minutes before administering the breath test. Interrogating whether or not the observation happened is a DUI defense your attorney can use.

Several officers do not observe the arrestee during this observation time. Instead, they prepare the paperwork and conduct the test.  If your attorney proves that the arresting officer did not correctly observe you, it will cast doubt not only on the test results of your breath test but also the entire investigation.

Find an Orange County Felony DUI Defense Attorney Near Me

Felony DUI, regardless of its nature, is harshly prosecuted. Its conviction, as we mentioned, comes with consequences that may affect you throughout your entire life. However, before sentencing, you have the right to defend yourself before the court. Since it is a strictly charged offense, it will require an aggressive defense for you to stand a chance of winning. Only an experienced attorney can help you prepare a reliable defense that can get you the best possible results. Therefore, you need to contact one as soon as you are arrested. For Santa Ana residents, reach out to Darwish Law at 714-887-4810. Our deep understanding of the law enables us to successfully help clients around this area solve their DUI cases, including felony DUI.