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Plea Bargaining: When is a DUI a Felony?

This article describes when a DUI or drunk driving offense is considered a felony offense versus other lower level crimes called misdemeanors.  The information contained in the article is pertinent to DUI offenses in the state of California and cites specific California vehicle codes.  If you don't consider the specific codes but just glean general information from the article it is basically relevant to all states. The article was written by a  DUI Lawyer.  

This article and the information it contains is provided by the author attorney Darren Kavinoky listed below and the DUI information contained in it is their sole responsibility and not DUI Arrest Help .  

Plea Bargaining: When is a DUI a felony?   by Darren Kavinoky

Plea Bargaining: When is a DUI a felony? How many theories are there to make a DUI a felony, what are requirements? What are the potential sentences for each? What is a wobbler, and how does it relate to felony DUI cases based on accidents? Prior Convictions?

A felony is a crime punishable by imprisonment in the state prison, for over one year. The length of punishment is determined by a low, mid, and high term, usually 16 months, 2 years, and 4 years, respectively. A DUI can be a misdemeanor or a felony depending on a number of factors, such as whether injury occurred and/or whether there are prior DUI convictions. DUI convictions and punishments are guided by the California Vehicle Code.

Some DUI felonies are also termed "wobblers." Wobblers are punishable either by confinement in county jail or incarceration in state prison. Wobblers differ from straight felonies not only in the punishment imputed, but also in the post-conviction relief available. If a wobbler is punished by incarceration in county jail and probation is imposed upon release, then the defendant may petition the court to reduce the felony to a misdemeanor under 17(b) of the California Penal Code. If granted, the conviction will be considered a misdemeanor, however it is still priorable as a felony under the Three Strikes Law.

VC Section 23153

BAC below .08%

(a) If the driver of a vehicle drives while under the influence of alcohol or drugs (or a combination of the two), commits an act forbidden by law or neglects any duty imposed by law in driving the vehicle which was the proximate cause of the traffic collision and injures someone other than himself, then the DUI is considered a felony. However, the driver must be "at fault" for the traffic collision. If the driver is under the influence of alcohol or drugs or a combination of the two, and is not at fault for the traffic collision, then the driver shall be charged with violation of VC 23152 (a), a misdemeanor.

Punishment includes either a term of incarceration in the county jail between 90 days and one year or imprisonment in the state prison. Fines are ordered between the amounts of $390 to $1,000. The DMV will suspend driving privileges for a period of one year. Attendance in an alcohol education course is also required.

BAC at or above .08%

(b) It is unlawful for any person to drive with a .08% blood alcohol content (BAC) and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle which was the proximate cause of bodily injury to any person other than himself, then the DUI is considered a felony. However, the driver must be "at fault" for the traffic collision. If the driver is under the influence of alcohol or drugs or a combination of the two, and is not at fault for the traffic collision, then the driver shall be charged with violation of VC 23152 (b), a misdemeanor.

The courts have determined that if the driver undergoes a chemical test which reflects a BAC of .08% or greater within 3 hours of driving, then it is a rebuttable presumption that the driver had a BAC of .08% or greater at the time of driving.

Punishment includes either a term of incarceration in the county jail between 90 days and one year or imprisonment in the state prison. Fines are ordered between the amounts of $390 to $1,000. The DMV will suspend driving privileges for a period of one year. Attendance in an alcohol education course is also required.

Commercial Drivers, with BAC at or above .04%

(d) If the driver of a commercial vehicle has a BAC of .04% or more, and proximately causes injury through an illegal act or neglects any duty imposed by law, then the driver shall be charged with a felony. A commercial vehicle is defined in VC 15210, which states that a commercial vehicle is any vehicle which requires a class A or B license or a C license with an endorsement to drive a "tank" vehicle.

The courts have determined that if the driver undergoes a chemical test which reflects a BAC of .04% or greater within 3 hours of driving, then it is a rebuttable presumption that the driver had a BAC of .04% or greater at the time of driving.

VC Section 23550

A driver who is convicted 3 times for a DUI in the span of 10 years will be convicted of a felony if the driver gets a fourth DUI conviction during that 10 year span. The prior DUI convictions may include violations of 23103.5 ("Wet" Reckless), 23152, or 23153, or any combination of the three.

VC 23550 is a wobbler. A wobbler is a crime that is punishable as either a misdemeanor or a felony. A person convicted of VC 23550 shall be punished by imprisonment for a minimum of 180 days but no more than one year in the county jail. In addition, a fine between $390 and $1,000 shall be imposed. The privilege to drive will be revoked by the DMV for 4 years. Any person convicted of 23152 under this section shall be labeled a habitual traffic offender for a period of 3 years. A habitual traffic offender is required to sign an affidavit acknowledging their status, which is forwarded to the DMV.

VC Section 23550.5

If a driver has been convicted of a felony DUI, and is subsequently convicted of another DUI within a ten year period, then the subsequent DUI will be punished as a felony.

VC 23550.5 is a wobbler. A wobbler is a crime that is punishable as either a misdemeanor or a felony. A person convicted of VC 23550.5 shall be punished by up to one year of confinement in the county jail or imprisonment in the state prison. In addition, a fine between $390 and $1,000 shall be imposed. The privilege to drive will be revoked by the DMV for 4 years. Any person convicted of 23152 or 23153 under this section shall be labeled a habitual traffic offender for a period of 3 years. A habitual traffic offender is required to sign an affidavit acknowledging their status, which is forwarded to the DMV.

Article Source:  Go Articles, author Darren Kavinoky