Misdemeanor DUI Vs. Felony DUI in California
If you are arrested for driving under the influence in California, you can be charged with either a misdemeanor or a felony. As a general rule, a first, second or third DUI arrest will be charged as a misdemeanor. A fourth DUI arrest in 10 years can be charged as a felony, as well as a DUI arrest involving an injury or death. If you have a felony DUI conviction on your record, any subsequent DUI arrest will be charged as a felony.
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Misdemeanor DUI---First Offense
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The first time you are subject to a traffic stop for suspicion of DUI and a chemical test shows your blood alcohol concentration (BAC) is .08 or more, you will be charged with two misdemeanor crimes: driving under the influence (Vehicle Code 23152(a)) and driving with excessive BAC (Vehicle Code 23152(b)). If you are convicted, you will be given informal probation for three years, and pay fines, penalties and assessments totaling about $1,000. You will be ordered to complete a three-month, 30-hour alcohol education and counseling program as a first-time offender---unless your BAC was .20 or greater or you refused a chemical test, in which case your alcohol program will be six months.
DUI "Look-back" Period
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In 2007, California amended its laws to provide a 10 year "look-back" period for DUI convictions--that is, the prosecutor can look back 10 years to find a DUI conviction on your record that can be charged as a prior conviction. Before 2007, the look-back period was only seven years. The 10-year period is counted from the date of first arrest to the date of the current arrest. The look-back period is significant for DUI cases because of the penalty enhancements that accompany multiple convictions within the look-back period, including charging the DUI as a felony instead of a misdemeanor.
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Misdemeanor DUI--Second and Third Offenses
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If you are arrested and convicted of a second or third DUI within 10 years, the penalties will be enhanced even for a misdemeanor charge. In addition to an increase in the fines, penalties and assessments, a second or third DUI conviction will require completion of an 18-month multiple-offender alcohol education and counseling program. The court also has the discretion to require an ignition interlock device installed in your car that will permit your car to start only after the device tests you as alcohol-free. If your DUI involved a high BAC (.15 or greater), you will probably be required to install the device.
Felony DUI--Prosecutor's Discretion
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If you suffer a fourth DUI conviction within 10 years or your DUI involved the injury or death of another person, the prosecutor has the discretion to charge you with a felony--and probably will. Any crime charged as a felony in California carries the possibility of being sentenced to a year or more in state prison. If the case involves serious bodily injury or death, a prison sentence is very likely.
Felony DUI--Mandatory
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There are two situations in which the prosecutor must charge the DUI as a felony: if the DUI is your third time causing injury (two- to four-year prison sentence) or if your record shows a prior conviction for a felony DUI.
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