Criminal Defense Lawyers
DUI Felony Law & Defense
VC 23152 & 23153
The laws on the crimes of Felony Driving under the Influence of Drugs or Alcohol (DUI) are found at California vehicle code sections 23152, 23153, and penal code section 191.5.
DUI Defined: For starters, the term driving under the influence of drugs or alcohol (DUI) means a driver is impaired by drugs or alcohol sufficient to render him or her incapable of operating a vehicle safely. It does not means that it is illegal to drink and drive.
DUI Classification: Driving under the influence cases can be charged as infractions, misdemeanors, or as felonies. This article is dedicated to a discussion of felony DUI law, penalties, and defense. For infraction and misdemeanor level DUI crimes, please see Misdemeanor DUI.
Felony DUI is charged in four situations:
When a defendant has been convicted of at least three DUI crimes within 10 years of a fourth DUI, the fourth DUI will be classified as a felony
When a defendant has previously been convicted of a felony DUI any subsequent DUI within 10 years will be charged as a felony, even if the DUI crime would not otherwise have been a felony charge.
When the defendant injured at least one person while DUI, not including the defendant, the defendant will be charged with felony DUI, and
When the defendant kills another person while the defendant was DU, the defendant will be charged with felony manslaughter under penal code sections 191.5 (Watson Murder)
The legal limit: The term the legal limit only applies to driving under the influence of alcohol crimes (as opposed to DUI drugs). The limit refers to a blood alcohol concentration (BAC) limit that the law allows before the driver's impairment is presumed in a DUI case. For example, the legal BAC limit in a non commercial driver DUI case is 0.08% . Therefore, if the district attorney can prove that the driver's BAC in a non commercial DUI case was at least 0.08% at the time of driving, the jury will be allowed to presume that the driver's ability to drive a vehicle safely was impaired by alcohol and no other evidence of DUI is needed to the prove the defendant's guilt.
Note: The legal limit in a typical non commercial DUI case is 0.04%, and for minors under the age of 21, the legal limit is 0.05%.
Note: Commercial drivers are held to the lower legal limit standard only when the commercial driver is driving a commercial vehicle, not when the commercial driver is driving his or her personal non-commercial vehicle.
Injury Defined: Neither great bodily injury (GBI), nor severe injury is required to prove a victim is injured for purposes of a felony DUI case. In fact, even a seat belt bruise that results from an accident will suffice for DUI charges against the defendant. However, for obvious reasons, soft tissue injuries, and other injuries that aren't readily apparent, even with an x-ray machine, are more difficult to prove against the defendant.
For example, after accident statements by a victim of a 'strained back, without tangible medical evidence, does not necessarily equate to injury in a DUI case.
Note: When DUI with injury is charged, and the injury is severe or great, the defendant will likely be charged with enhanced penalties pursuant to PC 12022.7(a) or 12022.7(b), respectively.
Felony DUI Penalties
The penalties for felony DUI convictions range from probation (no jail or prison), to the maximum prison sentence with all accompanying penalties. The maximum jail or prison sentence is determined by the charge. For example, a conviction for manslaughter DUI, charged pursuant to PC 191.5, carries a 15 years to life sentence. Most other felony DUI convictions carry a maximum sentence of 3 years in jail unless the defendant has already suffered a prior felony DUI convictions within 10 years. In those situations the defendant may face up to 4 years in prison for any subsequent felony DUI conviction.
VC 23153(a) DUI with Injury: The most common felony DUI charge is charged pursuant to VC 23153(a), which is driving under the influence of alcohol or drugs with injury (but not necessarily with a BAC over the legal limit). VC 23153(a) is charged as a misdemeanor or as a felony (wobbler). If found guilty of VC 23153(a) as a felony, the defendant could face up to three years in prison. If the defendant is found guilty of VC 23153(a) as a misdemeanor, the defendant could face up to one year in county jail.
Probation Sentence: A probation sentence is a period of supervision in lieu of jail or prison. Probation sentences are allowed in both misdemeanor and felony DUI cases pursuant to VC 23153(a) & 23153(b), but they are not guaranteed. Whether or not a defendant is granted a probation sentence after a felony DUI conviction depends largely on the facts of the case (level of injury and level of intoxication), and the defendant's criminal history.
PC 1170(h): If found guilty of felony DUI, including VC 23153(a), and the defendant is not granted a probation sentence, the defendant must serve his or her incarceration in a state prison (as opposed to a local county jail) and no part of that prison sentence may be split (served half in and half out of prison on work release or house arrest), or suspended (not served unless the defendant violates some condition of a probation sentence).
Three Strikes Law: VC 23153(a) is considered a serious offense, as that term is defined in California law. VC 23153(a) is also considered a strike offense under California's Three Strikes Law.
CIMT: Felony DUI is not considered a crime involving moral turpitude. However, a conviction for felony DUI can still lead to immigration or professional licensing problems, especially if the defendant is sentenced to more than a year in prison (aggravated felony).
License Suspension: Any conviction for felony DUI, including VC 23153(a), can result in license suspension or revocation. In addition, the defendant's license will be restricted to attending DUI classes and work related travel unless the defendant is willing to install an interlock ignition device (IID) in his or her vehicle.
In addition to the punishments listed above, if convicted of felony DUI, the defendant can suffer other penalties, including. Harsh DUI probation or parole terms, DUI classes (3-18 months depending on the county and the number of DUI convictions), mandatory Alcohol Anonymous (AA) classes, increased driver's insurance, possible loss of immigration status (for non U.S. citizens), possible loss or suspension of professional or occupational license, vehicle license revocation or suspension, civil law suits from victims for injuries or property damage, vehicle impound or civil forfeiture, and more.
Defense to Felony DUI
There are literally dozens of defenses that might apply to a felony DUI charge. Every DUI is different; therefore, the defense to every DUI is different. A DUI attorney will usually have several defenses to present to a prosecutor in order to reduce or dismiss the criminal charge (alternative defenses are rarely argued to a jury). With that said, common defenses to felony DUI, including VC 23153(a), include: illegal stop, improper collection or analysis of DUI evidence, unreliable witness statements, coerced confessions, improper preservation of blood or breath tests, improper field sobriety tests (FST) that render unreliable evidence, lack of injury, and more.
Note: intoxication is not a defense to a DUI charge.
If you have been charged with felony DUI, under VC 23152, 23153, or 191.5, contact our DUI defense lawyers today for a free consultation. Our DUI lawyers have successfully defended hundreds of DUI charges and our lawyers are available seven days a week to answer your questions. Call today!
Quick Reference Sheet
Crime: DUI with Injury
Code: VC 23153(a) (CalCrim No. 2100 et seq.)
Wobbler: Yes. VC 23153(a) is a wobbler crime. This means that VC 23153(a) may be charged as a felony or as a misdemeanor.
Incarceration: Felony VC 23153(a) prison sentence range: 16 months, 2 or 3 years (if probation not granted). Misdemeanor jail sentence up to 1 year.
Probation: Probation may be available in VC 23153(a) cases (assuming other crimes or enhancements that bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
PC 1170(h)): No. VC 23153(a) is not subject to PC 1170(h) sentencing. This means that, unless the defendant is granted probation after a felony conviction, any incarceration ordered must be served in state prison (as opposed to a county jail), and the prison sentence may not be split or suspended.
Strike: Felony VC 23153(a) is a strike offense per California's Three Strikes law because this crime is considered a Serious offense (PC 1192.7). Strike offenses are subject to reduced good time credits in prison and other penalty enhancements upon subsequent criminal convictions.
Credits: 50% good conduct credits available.
CIMT: VC 23153(a) is not a crime involving moral turpitude.
Firearms: Felony VC 23153(a) convictions prohibit the defendant from owning or possessing a firearm.
DL Issues: If convicted of VC 23153(a)) the defendant may have his or her driver's license suspended and be required to install an interlock ignition device (IID) on any and all vehicles the driver intends to drive.
Bail: $100,000 (Felony); $25,000 (Misdemeanor) (San Bernardino)
Note: More penalties, direct or indirect, may apply. This info is created for that purpose only; accuracy not guaranteed. No attorney/client relationship is formed by use of this info. If arrested or charged with a crime contact a criminal defense lawyer without delay.
Criminal Defense Lawyers
Criminal Defense Lawyers