Felony DUI Overview 

If you have been arrested for a Felony DUI, the severity of your license suspension and punishment increases substantially. In most counties you will be required to do most of your sentence in actual jail. The amount of time in custody usually depends on the facts and circumstances of the case, your criminal history, and if there is a violation of probation.

Felony DUI in California

A California DUI can be charged as a felony in three circumstances: when the DUI results in injuries, you have a prior felony DUI conviction, or you have three prior DUI convictions within the last 10 years. Any Felony DUI is a serious case and shouldn’t be taken lightly. If you can afford an attorney, you should hire one.

Misdemeanor upgraded to Felony because Felony DUI conviction

If you have been arrested for a misdemeanor DUI and have suffered a prior felony DUI conviction in the last 10 years, your new misdemeanor DUI will be upgraded to a felony DUI. This is because once you are convicted of a felony DUI, every DUI you get for the next 10 years will be upgraded to a felony.

Misdemeanor DUI with 3 or more priors upgraded to felony

If you are arrested for a DUI and have three or more prior DUI convictions within the last ten years, you will face a felony DUI charge. This means your misdemeanor DUI will be upgraded to a felony because of the 3 prior convictions. Prior convictions include:

• CA DUI convictions under CVC23152
• DUI convictions under CVC23153
• Wet reckless conviction under 23103.5
• Out-of-state convictions that, if committed in California, would be a DUI in California. 

10 Year DUI Look Back Window

For a DUI to be used against you as a prior offense it must have occurred within 10 years of your new offense. The time period is measured offense date to offense date.

Misdemeanor DUI Upgraded to Felony DUI

For a DUI to be used against you as a prior offense it must have occurred within 10 years of your new offense. The time period is measured offense date to offense date.

DUI with Injuries vc23153 –  Can be Misdemeanor or Felony

A DUI causing injuries is a “wobbler” offense. This means the prosecutor can charge it as a felony or a misdemeanor. The deciding factors are the severity of the injures and the defendant’s prior criminal record. Minor soft tissue injures are usually filed as misdemeanors while more serious injuries are usually filed as felonies. A bad criminal history or prior DUI convictions will motivate a prosecutor to charge the case as a felony.

DUI with Injuries VC23153 – Misdemeanor

If you are convicted of a misdemeanor DUI causing injury, you will face a minimum of 90 days up to one year in county jail, between $390 and $1000 in fines, a 3, 6, or 9-month DUI class, restitution to any victims, mandatory IID up to 3 years, and placed on 3 to 5 years of informal probation. Your license will be suspended for 1 year or more with no restriction eligibility.

Felony DUI with Injuries – VC23153

If you injure someone in a DUI related case, you could be charged with a felony. In order to be convicted of a DUI with injury as a felony the prosecutor must prove:

• You drove a vehicle;
• You were under the influence of an alcoholic beverage, drug, or a combination of both;
• You committed an illegal act or neglected to perform a legal duty while driving; AND
• Your illegal act or failure to perform a legal duty while driving caused serious bodily injury to another person.

Injuries Defined

Any injury caused by a DUI driver is enough to be charged with a VC23153. Injuries include broken bones, bruises, soft tissue injuries (back/neck strains), cuts, abrasions, and seat belt bruises.

Felony DUI with Probation Granted

In a felony DUI case, you may be eligible for felony probation instead of prison. The maximum punishment with probation is up to 1 year in jail. To determine if you are eligible the court will look to California Rule of Court section 4.414 which lists the probation eligibility factors:

• Seriousness and circumstances of the crime compared with similar crimes
• If defendant was armed
• Vulnerability of the victim
• Degree of monetary loss to the victim
• If crime was carried out in a criminally sophisticated manner
• Defendant’s prior record, as an adult or juvenile
• Defendant’s willingness to comply with terms of probation
• Likely effect of imprisonment on the defendant and his her dependents

You Have Two Cases 

If you have been arrested for felony offense DUI, you have two problems – A DMV problem and a criminal court problem. The DMV and the Court process are separate and each must be fought independently. The DMV case relates to your California driving privilege and whether your license will be returned, suspended, or revoked. The Court case deals with punishment for the crime of DUI and may include jail time, fines, alcohol education classes, license suspensions, probation, vehicle impound, installation of an ignition interlock device or a combination of these things. Sentencing enhancements may increase punishment and length of license suspension.

DMV License Suspension vs. Court License Suspension

There are two ways your driving privilege in California can be suspended. If you lose or default on the DMV hearing or if you are convicted in court. Even on a felony DUI offense, you may still be able to drive legally while your case is pending.

Important – DMV Hearing Date MUST BE SET Within 10 days of arrest

To get a DMV hearing you must call DMV to request a hearing, it is not automatically set for you. It is your responsibility to set your DMV hearing within 10 calendar days of the arrest. If you do not request a hearing within 10 days, your license will automatically be suspended 30 days after your arrest. Even on a fourth offense, you may still be able to drive legally while your case is pending. You must set your DMV hearing. The number to call to set your DMV hearing is on your Temp License/Notice of Suspension.

Temporary License 

At the time of your arrest, the police take your license and give you a Temporary License/Notice of Suspension. This piece of paper is your new temporary driver’s license so keep it with you. If you had a valid driver’s license at the time, you can continue to drive until resolution of the DMV action. If you request a DMV hearing, you will be allowed to drive until a decision is rendered on the outcome of the DMV hearing. If you don’t set a DMV hearing, your driving privilege will be suspended 30 days after your arrest.

Notice of Suspension

The notice of suspension notifies you of your right to a hearing to contest the action against your license. Most people don’t read it but it explains that you need to request your DMV hearing within 10 days. You must read your temporary license and notice of suspension because it contains important information regarding your legal rights.

First Court Date

After you are released from jail, you are given a court date for your arraignment. Arraignment is where the government tells you the charges and potential punishment you face. In felony cases, you must appear in person to your arraignment or a warrant will be issued. Don’t confuse your court date with your DMV Hearing date.

Bail Terms

If you are released on bail on a DUI with injury case, the court is going to order “Bail” terms while your case is pending. This could include a “no alcohol” term which includes no bars, no use and possession of alcohol, and search and seizure for alcohol including on your person, vehicle, or home. You may also be prohibited from driving, required to attend self-help meetings, or ordered to wear a SCRAM device on your ankle that monitors you for alcohol use.

After Felony Arraignment

After felony arraignment, your felony DUI case will be set for a preliminary hearing where the District Attorney must present witnesses to support the charges against you. Prior to the preliminary hearing, a pre-preliminary hearing is usually set which allows settlement negotiations between your attorney, the court, and the District Attorney to occur.

Preliminary Hearings

A preliminary hearing is a proceeding to determine whether, and to what extent, criminal charges will be heard by the court. Should the court decide that there is probable cause, a formal charging instrument will issue; and the prosecution will continue. If the court finds that there is no probable cause, then typically the prosecution will end. If a judge determines that there is sufficient evidence to believe that the defendant committed the crime, it is said that the defendant is “held to answer”. After a defendant is held to answer, the judge will set a date for arraignment. A new pleading is filed with the court and the defendant can enter a plea at his or her arraignment date. At the new arraignment, a trial date is usually set.

Felony DUI with Injuries Punishment Chart

	Jail	Fines	DUI Class	IID	Restitution	License Suspension	Probation
Felony with Probation No Priors	90 days to 1 Year	$390 to $1000	3,6,9 Month	Up to 3 Yrs	Yes, to  victims	1 Year No Restriction	3 to 5 Years Formal
Felony with Probation 1 Prior	120 days to 1 Year	$390 to $5000	18 Month	Up to 3 Yrs	Yes, to  victims	3 Year Revocation	3 to 5 Years Formal
Felony No Probation No Priors	16 months, 2 or 3 years  prison	$390 to $1000	3,6,9 Month	Up to 3 Yrs	Yes, to  victims	1 Year No Restriction	Parole or Supervised Release
Felony No Probation 1 Prior	16 months, 2 or 3 years  prison	$390 and $5000	18 Month	Up to 3 Yrs	Yes, to  victims	3 Year Revocation	Parole or Supervised Release
Felony No Probation 2 or More Priors	2, 3, or 4 years prison	$1015 and $5000	18 Month	Up to 5 Yrs	Yes, to  victims	5 Year Revocation	Parole or Supervised Release
Enhancements	Multiple Victims – add 1 year for each victim with maximum of 3 years Great Bodily Injury – add 3 to 6 years depending of severity of injury

DUI with Injuries VC23153 – GBI Enhancement strike Offense

Where a felony DUI with injury is charged and the injury is severe the defendant will likely be charged with enhancement under PC 12022.7. Penal Code 12022.7 allows for a 3 to 6 year enhanced prison sentence where the alleged victim of a felony DUI suffered “great bodily injury.” Great Bodily Injury is defined as “significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” If a victim suffers great bodily injury, you will be charged with a strike offense which has significant consequences in any subsequent criminal case you might get. This is a strike under California’s three strikes law.

DUI with Injuries VC23153 – Multiple Victims Enhanced Penalty

There is an enhanced penalty for multiple victims. Vehicle code section 23558 states that “ Any person who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of Section 23153…shall, upon a felony conviction…receive an enhancement of one year in the state prison for each additional injured victim….The maximum number of one year enhancements which may be imposed pursuant to this section is three.”

Felony DUI – State Prison Sentence

In a felony DUI case, you could be denied probation and sentenced to state prison. To be sentenced to state prison you must be denied probation on your felony dui case or you suffered a prior felony DUI conviction within the last 10 years.

Felony DUI Probation    

If you are granted felony probation, it will be for a period of 5 years. The standard felony DUI probation terms include: no driving with any alcohol in your system, no refusal of chemical tests, submit to search and seizure for blood/breath, enrolling and completing the DUI class, paying fines/fees, paying restitution, obeying all laws, don’t drive unless properly licensed and insured, completing your jail sentence, and showing up for all court ordered appearances. It will also include regular alcohol testing, probation searches, regular contact with your probation officer, and installing an ignition interlock device.

Felony Probation Consequences

You can still go to prison if you violate probation up to the maximum sentence of 3 years for a felony DUI. You must pay for felony probation supervision. Felony probation restricts your travel out of the state unless you get your probation officers permission. It also only allows you to move to another jurisdiction or state if the other jurisdiction or state accepts your probation transfer. You will be required to keep and maintain employment and participate in counseling if required by probation.

Violating DUI Probation

You will violate probation if you fail to comply with the court ordered probation terms including staying in contact with your probation officer, failing to enroll/complete DUI classes, appear in court when ordered, or completing your jail sentence. If felony probation is violated, the judge will issue a no bail warrant and you will be arrested and brought back to court.

10 Year License Revocation

California Vehicle Code §23597 gives judges the power to revoke a license if a person has two or more priors within ten years of a new offense. The factors that are considered by the judge in imposing the 10-year revocation are:

• • Person’s level of remorse for the acts
  • Period that has elapsed since the person’s previous convictions
  • Person’s blood-alcohol level at the time of violation
  • Person’s participation in an alcohol treatment program
  • Person’s risk to traffic or public safety
  • Person’s ability to install a certified ignition interlock device  

If the 10-year revocation is imposed, it may be possible to get your license back after just five years if you avoid any convictions for DUI’s or suspended license charges and you complete your DUI school.

Habitual Traffic Offender Designation

On felony DUI cases the judge will designate the driver a habitual traffic offender. Once this designation is in place, all subsequent driving offenses are subject to significant penalties, including lengthy jail sentences. If the defendant has been designated a habitual traffic offender, a first time driving violation would result in a mandatory sentence of 30 days in jail in addition to a $1,000 fine. This jail time would be consecutive to any other sentence imposed for the driving conduct. For a second or subsequent violation of the habitual traffic offender law, the defendant would be sentenced to a mandatory 180 days in jail and a $2,000 fine. Again, the 180 days would be consecutive to any other sentence imposed.

No Alcohol Terms

In felony DUI cases, the court will order a “no alcohol” term as part of probation. This means you will be on search and seizure for alcohol including on your person, vehicle, or home. You will also be prohibited from using or possessing alcohol and will not be permitted to be anywhere where alcohol is the primary item of sale like bars. You may also be randomly tested for alcohol by the probation department.

Felony DUI school

If you are convicted of a felony DUI you will be required to take the 3, 6, or 9 month DUI class. If you are convicted of a DUI with prior’s you will be ordered to complete the 18 month DUI program which costs approximately $1800. All programs have payment plans. To sign up for the DUI class you will need your court paperwork or an H6 DMV printout.

Ignition Interlock Requirement

If you are convicted of a felony DUI, you will be required to install an ignition interlock in your vehicle for a period of 3 to 5 years. This device will not let you start or continue to operate your vehicle if you have alcohol in your system. The cost of the IID varies between IID providers but it is approximately $70 to install and $60 a month. Shop it for the best price.

Alternative Sentencing

In felony DUI cases, the court will require you to do all of your sentence in actual jail. In some cases, your attorney may be able to get a combination of jail and alternative sentencing.

DUI Fines and Fees

You can expect to pay approximately $2000 or more if you are convicted of a felony DUI. Most counties will allow you to make payments. If you fail to make payments, you will be referred to collections, your license will be suspended, and you will violate your probation.

DUI Expungement

Even if you are convicted of a felony DUI, you can still get your case expunged. A felony DUI is a wobbler that can be reduced to a misdemeanor and then expunged. An expungement allows you to lawfully answer that you have never been convicted of a crime. To be eligible, you must have successfully completed probation, paid all your fines, and completed the terms of your probation. DUI expungements are not mandatory but are discretionary. When you hire our law firm we will help you with your expungement when you become eligible so that your criminal record is as clean as possible moving forward in life.

You don’t have to plead guilty, contact our office today for a free same day consultation

Because you have so much to lose, you need the most experienced and aggressive DUI Defense attorneys on your side. Whether it’s defending you in trial or negotiating for dismissal, you can count on us. Our experienced and aggressive negotiating efforts usually result in better outcomes for our clients including reduced charges, lesser jail days, and smaller fines. Call our office today at (916) 939-3900 to speak directly to an attorney about your Felony DUI case. We are open 24/7/365 to answer your questions.

Felony DUI Law with 3 priors  – VC23550

(a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of three or more separate violations of Section 23103, as specified in Section 23103.5, or Section 23152 or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or in a county jail for not less than 180 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000).  The person’s privilege to operate a motor vehicle shall be revoked by the Department of Motor Vehicles pursuant to paragraph (7) of subdivision (a) of Section 13352.  The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.

(b) A person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction.  The person shall be advised of this designation pursuant to subdivision (b) of Section 13350.

Felony DUI Law – VC23550.5

(a) A person is guilty of a public offense, punishable by imprisonment in the state prison or confinement in a county jail for not more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000) if that person is convicted of a violation of Section 23152 or 23153, and the offense occurred within 10 years of any of the following:

(1) A prior violation of Section 23152 that was punished as a felony under Section 23550 or this section, or both, or under former Section 23175 or former Section 23175.5, or both.

(2) A prior violation of Section 23153 that was punished as a felony.

(3) A prior violation of paragraph (1) of subdivision (c) of Section 192 of the Penal Code that was punished as a felony.

(b) Each person who, having previously been convicted of a violation of subdivision (a) of Section 191.5 of the Penal Code, a felony violation of subdivision (b) of Section 191.5, or a violation of subdivision (a) of Section 192.5 of the Penal Code, is subsequently convicted of a violation of Section 23152 or 23153 is guilty of a public offense punishable by imprisonment in the state prison or confinement in a county jail for not more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000).

(c) The privilege to operate a motor vehicle of a person convicted of a violation that is punishable under subdivision (a) or (b) shall be revoked by the department under paragraph (7) of subdivision (a) of Section 13352, unless paragraph (6) of subdivision (a) of Section 13352 is also applicable, in which case the privilege shall be revoked under that provision.  The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.

(d) A person convicted of a violation of Section 23152 or 23153 that is punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction.  The person shall be advised of this designation under subdivision (b) of Section 13350.

Felony DUI with Injuries – VC23153

(a) It is unlawful for a person, while under the influence of any alcoholic beverage, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.

(b) It is unlawful for a person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving.

(c) In proving the person neglected any duty imposed by law in driving the vehicle, it is not necessary to prove that any specific section of this code was violated.

(d) It is unlawful for a person, while having 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210 and concurrently to do any act forbidden by law or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. In a prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after driving.

(e) Commencing July 1, 2018, it shall be unlawful for a person, while having 0.04 percent or more, by weight, of alcohol in his or her blood to drive a motor vehicle when a passenger for hire is a passenger in the vehicle at the time of the offense, and concurrently to do any act forbidden by law or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver. For purposes of this subdivision, “passenger for hire” means a passenger for whom consideration is contributed or expected as a condition of carriage in the vehicle, whether directly or indirectly flowing to the owner, operator, agent, or any other person having an interest in the vehicle. In a prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after driving.

(f) It is unlawful for a person, while under the influence of any drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.

(g) It is unlawful for a person, while under the combined influence of any alcoholic beverage and drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.

VC23554 – Penalties for first violation of VC23153 

If any person is convicted of a first violation of Section 23153, that person shall be punished by imprisonment in the state prison, or in a county jail for not less than 90 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person’s privilege to operate a motor vehicle shall be suspended by the Department of Motor Vehicles pursuant to paragraph (2) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.