The short answer is yes, it can be, under certain circumstances. There are essentially three instances in which a DUI can be a felony in California.
- You have three or more prior misdemeanor DUI or wet reckless convictions within the last ten years of the current offense date.
- You have a prior felony DUI within the last ten years of the current offense date.
- You cause an injury or death while under the influence of alcohol, drugs or both.
There are other ways a DUI can be considered a felony. For example, if a person is DUI with a child in the vehicle, the driver could be charged with a misdemeanor DUI with a felony child endangerment charge. But the three categories above are the primary ways in which a driver can get a felony DUI in California.
California has what is commonly known as a ten-year washout period, meaning a DUI after a wet reckless or a DUI conviction, compounds the penalties. A fourth DUI, if there were three prior misdemeanor DUIs or wet reckless convictions within ten years, can be filed as a misdemeanor. Although technically a fourth DUI can be filed as a misdemeanor or a felony, it will be filed as felony. A fourth DUI carries a minimum of a six month jail sentence. The maximum jail sentence for a fourth DUI is three years in prison.
A person who has a prior felony DUI within ten years and is arrested for another DUI will be charged with a felony as well. This can happen if a driver had their fourth DUI conviction as a felony, and the three prior DUIs washed out of the ten year period but the felony fourth DUI is still within the ten year period. This can also happen if a person is convicted a DUI with injury as a felony or felony manslaughter and the person is then convicted of another DUI within ten years. The maximum sentence for this DUI felony is also three years in prison.
A DUI with injury is charged under Penal Code section 23153. It can be charged as either a misdemeanor or a felony. To be convicted of a DUI with injury, the driver must be DUI and there must be an injury to another person that was caused by the driver. The injury need not be severe but it needs to be on someone else other than the driver. It needs to be more than superficial, but bruising, cuts and scrapes are enough to be charged and convicted of a DUI with injury. However, the nature of the injury greatly determines whether a person will be charged as a felony or as a misdemeanor. A person with small bruising and scrapes will likely be charged with a misdemeanor. If the injured person has broken bones, the driver will be charged with a felony.
The possible maximum sentence also greatly depends on the nature of the injury. The maximum sentence on a felony conviction of 23153 by itself is anywhere from ten days in jail to four years in prison for a felony. However, in felony injury cases, enhancements can greatly increase the time. A broken bone may add three years to a felony sentence (i.e., the maximum sentence would then be 7 years in prison). This enhancement is called great bodily injury. If a person suffers paralysis or becomes comatose, then the enhancement is 5 years. Great bodily injury to a child under five years old or an elderly person over 70 will increase the penalties from anywhere from 4-6 years. Great bodily injury is also considered a violent felony, so any prison sentence would reduce normal good conduct credits by 35%. If there are multiple persons injured, in a felony case, each person injured after the first person will add an additional year. So, if five people were injured, then four one year consecutive sentences.
A DUI that causes death can be charged in several different ways. Under Penal Code section 191.5, a person under the influence of alcohol or drugs or both that causes a death can be charged with either gross negligence or simple negligence manslaughter depending on the driving pattern, nature of the accident, and possibly the blood alcohol content. Simple negligence may result in a maximum sentence of four years. In a strange anomaly of the law, a DUI with great bodily injury may have a greater maximum sentence that a DUI that causes death. However, gross negligence under section 191.5, may result in a maximum sentence of ten years.
For a driver with a DUI that causes death that had a prior DUI in their lifetime, it is very possible and likely that they will be charged with second degree murder in California. Under the established case of People v. Watson, implied malice may be found where a person had prior knowledge that driving under the influence was an inherently dangerous activity, and the driver still ignored the possible consequences. Any murder sentence in California carries a life sentence.