The prosecution can charge a felony DUI if:
- The driver causes an accident that results in injury or death. (VC 23554)
- The driver has three prior convictions for misdemeanor DUI or wet and reckless. (VC 23550(a))
- The driver has a prior felony DUI conviction. (VC 23550.5(a)(1)-(2))
- The driver has a prior conviction for vehicular manslaughter. (VC 23550.5(a)(3))
- The driver has a prior conviction for gross vehicular manslaughter while intoxicated. (VC 23550.5(b))
- The driver caused injury and has one prior DUI or wet and reckless conviction. (VC 23560)
Wobbler
The felony charges listed above are “wobblers.” A “wobbler” is a charge that can be a misdemeanor or a felony. A wobbler is a misdemeanor when:
- The court does not sentence the defendant to prison or jail;
- The court grants probation and thereafter changes the conviction to a misdemeanor;
- The prosecutor decides to file the case as a misdemeanor;
- The judge determines that the offense is a misdemeanor.
Mandatory Felony DUI
A felony DUI cannot be reduced to a misdemeanor if the driver caused an accident that resulted in injury and has 2 prior DUI convictions (Vehicle Code section 23566).
Prior “DUI” Conviction
A conviction is a prior DUI conviction if it occurred within 10 years. Prior DUI convictions include convictions for the following sections:
- Vehicle Code section 23103 – reckless driving (“dry and reckless”)
- Vehicle Code section 23103.5 – reckless driving involving alcohol or drugs (“wet and reckless”)
- Vehicle Code section 23152 – misdemeanor DUI
- Vehicle Code section 23153 – DUI with injury
DMV Proceedings
You must contact the DMV within 10 days of your DUI arrest. If you don’t, the DMV will suspend your license 30 days after the arrest. When you contact the DMV, they will schedule a DMV hearing. The hearing will be by phone in approximately 1-2 months.
The issues at the DMV hearing are 1) whether you were driving a vehicle; 2) whether your blood alcohol was over .08% when you were driving; 3) whether the officer had probable cause to arrest your for driving under the influence.
You can contest the suspension of your license by presenting evidence, cross-examining witnesses, and testifying. The DMV typically conducts hearings over the phone. You can request an in-person hearing by contacting the DMV. It is extremely likely that the DMV will decide to suspend your driver’s license following that hearing.
Felony Court Proceedings
Release from Jail
Before the first court date, the defendant can bail out or the jail can release the defendant on their own recognizance. If the defendant remains in jail, they will have a court date within 3 days of their arrest. At that first court date, the judge can release the defendant on their own recognizance, change their bail amount, or release them on pre-trial supervision. Under pre-trial supervision the defendant is out of jail but must follow specific restrictions until their case is resolved. It is common for multiple court hearings to occur before the criminal case is resolved.
Arraignment
The first hearing is called the arraignment. At the arraignment, the defendant enters a plea and is advised of the charges and their constitutional rights. If the defendant enters a not guilty plea, the case continues to pre-trial hearings, followed by a preliminary hearing and a trial. During the pre-trial phase of the case, the prosecutor and defense counsel discuss settlement of the case and prepare for trial.
Preliminary Hearing
The defendant is entitled to a preliminary hearing in a felony case. A preliminary hearing is basically a mini trial. It tests the legal sufficiency of the prosecutor’s evidence. The prosecutor must prove that there is probable cause to believe that the defendant committed the crime. Probable cause is a lower standard than the “beyond a reasonable doubt” standard for a conviction. If the judge finds that there is probable cause, the defendant is “held to answer,” meaning the prosecution can move forward with the case.
Defenses to Felony DUI Charges
There are a number of defenses to DUI charges, including law enforcement failure to follow proper procedures, the defendant did not drive the vehicle, or the defendant was not intoxicated at the time of driving. In addition, there are several defenses that apply to felony DUI charges.
No “Injury”
To be convicted under Vehicle Code section 23153, the defendant must cause bodily harm. The bodily injury must be more than shaking up, fright, or a minor headache. There must be harm to the body, such as cuts, bruises, broken bones, pain, stiffness, or strained muscles.
Did Not Cause the Accident
To be convicted under Vehicle Code section 23153, the defendant’s drunk driving must be the cause of bodily harm. If the defendant caused the accident or injury, they are guilty even if another person or driver also caused the accident.
No Prior Convictions
Sometimes the defendant’s criminal record contains mistakes. If the defendant does not have a prior DUI conviction, they cannot contest the felony charge on that grounds.
Incarceration for Felony DUI Charges
| Code Section | Reason for Felony | Minimum Jail | Maximum Jail |
| VC 23550(a) | DUI without injury with 3 prior DUI convictions | 16 months | 3 years |
| VC 23550.5(a)(1-2) | DUI without injury with prior felony DUI conviction | 16 months | 3 years |
| VC 23550(a)(3) | DUI without injury with prior conviction for vehicular manslaughter | 16 months | 3 years |
| VC 23550.5(b) | DUI without injury with prior conviction for gross vehicular manslaughter while intoxicated | 16 months | 3 years |
| VC 23554 | DUI with injury | 16 months | 3 years |
| VC 23560 | DUI with injury with prior DUI conviction | 16 months | 3 years |
| VC 23566(a) | DUI with injury with two prior DUI convictions | 2 years | 4 years |
| VC 23566(b) | DUI with great bodily injury with two prior DUI convictions | 2 years | 4 years |
| VC 23566(c) | DUI with great bodily injury with four prior DUI convictions | 3 additional years | |
| VC 23558 | DUI with injury enhancement | 1 year for each additional victim |
Felony DUI Probation
The court can grant probation instead of or in addition to sentencing the defendant to jail or prison. The minimum length of probation for a DUI is 3 years. The maximum length of DUI probation is five years or the maximum possible jail or prison sentence.
Suspended License
Suspension Following DUI Arrest
The DMV will suspend the driver’s license for 1 year for each DUI arrest where the driver had a prior DUI arrest.
Suspension Following Felony DUI Conviction
The DMV increases the suspension for prior DUIs and for DUI involving injury.
| Offender Level | Non-Injury | With Injury |
| 2nd offender | 2 year suspension | 3 year revocation |
| 3rd offender | 3 year revocation | 5 year revocation |
| 4th offender or higher | 4 year revocation | 5 year revocation |
| 2nd offender with a prior felony conviction | 4 year revocation | 5 year revocation |