Felony DUI Law & Defense
VC 23152, 23153, & PC 191.5
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.
Felony DUI is charged in four situations:
- If a defendant has been convicted of at least three prior DUIs within 10 years of a fourth DUI, the fourth DUI will be classified as a felony,
- If the defendant has been convicted of a felony DUI any subsequent DUI within 10 years will be classified as a felony,
- If the defendant injured at least one person, not including the defendant, while DUI, the defendant will be charged with felony DUI, and
- If the defendant kills another person while the defedant was DUI then the defendant can be charged with felony manslaughter under penal code sections 191.5 (Watson Murder)
This article is dedicated to a discussion of felony DUI charges, including defenses to felony DUI and possible sentences and penalties associated with felony DUI. For information on misdemeanor DUI charges, please see VC 23152.
What is DUI?
For starters, the term driving under the influence of drugs or alcohol (DUI), means driving a motor vehicle while impaired by drugs or alcohol and the amount of impairment is sufficient to render the driver incapable of operating the vehicle safely.
This means that it is not illegal to drink alcohol or ingest drugs, or both, and then drive a motor vehicle; it means that it is illegal to drink alcohol or ingest drugs, or both, and then drive a motor vehicle, only if the amount of alcohol or drugs, or both, has impaired the driver's ability to operate the motor vehicle safely.
There is no miminum amount of alcohol or drugs found in the driver's blood that must be found before the driver may be charged with DUI. Arguably, any amount of alcohol or drugs, or both, in the driver's blood may be enough to impair the ability of the driver to operate a motor vehicle safely; however, very low levels of alcohol or drugs rarely lead to criminal charges.
In situations where the driver's blood alcohol concentration (BAC) has not reached a legal limit, but the arresting officer believes that the driver's ability to drive is impaired by alcohol or drugs, or both, the citing or arresting officer will usually charge the A count for DUI. The A count includes VC 23152(a) and 23153(a). The A county applies to both misdemeanor and felony DUIs.
For example, if a non-commercial driver is involved in an accident which leads to injury, and the arresting officer determines that the driver's BAC is 0.03% or more (under the legal limit), but the officer still believes that alcohol or drugs, or both, impaired the driver's ability to operate a motor vehicle safely, the officer may still charge the defendant with a felony DUI under VC 23152(a) or 23153(a). Of course, it will be more difficult for the district attorney to later prove that DUI was the cause of the accident because 0.03% is a very low BAC, but the low BAC does not, by itself, mean that the officer can not charge a felony DUI in this situation.
The legal limit in criminal courts
The term legal limit is referred to in two situations. The situation below referred to the legal limit in DUI criminal court as well as in DMV hearings associated with DUI, except that underage drivers have a zerp tolerance standard at the DMV hearing and a 0.05% BAC standard in criminal court:
- When the driver's ability to operate a motor vehicle safely is impaired by drugs or alcohol, or both, no matter what the driver's BAC indicates VC 23152(a) & VC 23153(a).
- When the driver's BAC reaches a minimum amount: 0.08% or more for on-commercials drivers; 0.04% for commercial drivers while driving a commercial vehicle; 0.05% for drivers under the age of 21.
When the driver's BAC reaches the legal limit the driver is presumed to be under the influence of alcohol. There is no legal limit for drugs.
When the driver's BAC leval reaches the legal limit, the citing or arresting officer will charge the per se DUI count. The per se DUI count simply means the DUI criminal charge. Felony DUI per se counts or charges include:
- VC 23152(a): Felony DUI, usually charged when the defendant has at least three prior DUI convictions within the last 10 years, or when the defedant has been convicted of a prior felony DUI within 10 years of the new DUI (even if the new DUI would have otherwise been charged as a misdemeanor because there was no injury)
- VC 23152(b): Felony DUI, usually charged when the defendant has at least three prior DUI convictions within the last 10 years and the current DUI is charged as the per se count, or when the defendant has been convicted of a prior felony DUI within 10 years of the new DUI and the new DUI is charged as a per se violation (even if the new DUI would have otherwise been charged as a misdemeanor because there was no injury)
- VC 23153(a): Felony DUI charged when the defendant caused injury as a result of DUI but the defendant's BAC was below the per se legal limit
- VC 23513(b): Felony DUI charged when the defendant caused injury as a result of DUI and the defendant's BAC is at or above the legal limit
- VC 23513(e): Felony DUI charged when the defendant caused injury as a result of DUI with drugs
- VC 23153(d): Felony DUI charged for commercial drivers who cause injury as a result of being under the influence of alcohol or drugs (0.04% legal limit) 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.
What does an injury mean in DUI cases
Just about any injury will suffice as along as the injury was caused to another person besides the driver (driver's injury doesn't count for DUI w/injury) and as long as the injury was caused by the DUI driver. Injuries for DUI include broken bones, bruises, soft tissue injuries (back or neck strains), cuts, abrasions, and even seat belt bruises. The point is that just about any injury to a person will suffice to allow a DUI with injury criminal charge under VC 23153. Proof of injury is another matter; for example, proof of a strained back is more difficult especially when the alleged victim did not see a doctor for the alleged injuries. Also, bruises may have preexisted the DUI accident (more on defenses to DUI below).
Note: Where a DUI with injury is charged and the injury is severe the defendant will likley be charged with enhancement under PC 12022.7. PC 12022.7 allows for a three to six year enhanced prison sentence where the alleged victim of a DUI suffers severe injury such as a coma, brain damage, or the loss of a limb. The difference in 12022.7 enhancements depends on the status of the alleged DUI victim. For example, a victim who suffers paralysis as a result of the defendant's DUI will lead to a five year enhancement jail commitment for the defendant under PC 12022.7(b); whereas, a DUI defendant who inflicts great bodily injury on an alleged victim without brain damage or paralysis will likely face a DUI enhancement of three years under PC 12022.7(a).
Sentence & Penalty for Felony DUI
The sentence for felony DUI convictions can range from probation (no jail or prison), to the maximum prison sentence with all of the accompanying DUI penalties. The maximum jail or prison sentence is determined by the conviction. For example, a conviction for manslaughter DUI charged under 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.
Additional punishments for felony DUI
In addition to the punishment of possible jail or prison the defendant will suffer other punishments for felony DUI convictions. These punishments include: 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, orders for interlock ignition device on vehicle (IID), civil law suits from victims for injuries or property damage, increased punishment for future convictions, violation of probation or parole (if the defendant was on probation or parole at the time of the new DUI citation or criminal charge), and more.
Department of Motor Vehicles Penalty
The DMV hearing, or admin per se hearing, is concerned with your privilege to drive. You have only ten days from the date of arrest or citation for DUI to contact the DMV to schedule a hearing to save your driving privilege. The DMV is only concerned with DUIs with a BAC of 0.08% or more. If the DMV is able to prove that you were driving a motor vehicle with a BAC of 0.08% or more, and that you were lawfully arrested, the DMV will suspend you license. If you lose the DMV hearing the length of suspension on your privilege to drive will be determined by the number of prior DUIs you have within the last ten years and whether or not you refused to take a chemical test. DMV defense for DUI is beyond the scope of this article; however, if you are charged with a DUI be sure to contact a DUI lawyer without delay to help your with this complicated process.
Defense to felony VC 23152 & VC 23153
There are literally dozens of defenses that might apply to a typical felony DUI charge. Every DUI is different and therefore the defense to every DUI is different. A DUI attorney will usually have several defenses to argue to a prosecutor or a judge in order to reduce or dismiss the criminal charge (alternative defenses are rarely argued to a jury by experienced DUI criminal defense attorneys). Common defenses to felony DUI crimes, include
- Demonstrating a lack of probable cause to arrest the defendant, which might lead to a suppression of some or all of the evidence.
- Attacking the improper collection or preservation of DUI evidence by law enforcement and their agents such as the improper collection or preservation of blood, breath, or urine tests. This also includes a review of the license or certifications of the lab-techs who administered blood draws as required by Title 17 of the California Code of Regulation
- Attacking the credibility or reliability of statements by any witnesses (even the defendant's own statement as a coerced statement)
- Attacking the audio or video evidence associated with the DUI arrest, including mobile video audio recordings (MVARS), dispatch and 911 recordings, and catalog recordings between arresting officers
- Attacking the field sobriety tests procedures (FSTs) and analysis, including a review of all Rhomberg and Nystagmus testing
- Attacking the calibration or improper use of scientific equipment such as preliminary alcohol screening (PAS) devices and breathalyzers
- Attacking the citing or arresting officer's background for information on officer misconduct or discipline for racial profiling, gender profiling, and department complaints
- Collecting information on the defendant's medical and criminal history, (medical history can play an important role in false positives for BAC with chemical devices)
- Review of evidence for Miranda Rights violations, or Miranda warnings issued during any arrest or functional equivalent of arrest
- For injury DUI under VC 23152 or 23153, an analysis of the alleged victims injury to determine if it qualifies to make any DUI a felony DUI or an enhanced penalty DUI under PC 12022.7, and more
Other defenses that are not DUI specific might apply. These defenses might includewould also include statute of limitations defense (three years for most felony DUIs), insufficient evidence to that impairment by drugs or alcohol is what lead to accident, police misconduct, false confessions, double jeopardy, lack of jurisdiction, lack of probable cause, lack of a warrant to retrieve BAC levels, mitigating factors to reduce a felony DUI to a misdemeanor DUI, plea bargaining against the strength of the evidence, and more.
In consideration of the usual defenses, our DUI criminal defense attorneys will consider a defendant's immigration status, professional licensing status, possible future civil lawsuit for injuries caused, driving license consequences, and family law consequences, and more.
Note: intoxication is not a defense to a DUI w/injury or death criminal charge filed under PC 191.5 or VC 23153.
Choosing the right DUI attorney
A qualified DUI attorney will have experience in handling hundreds of DUIs, including DUI with injury cases filed under VC 23152 and 23153. You want a DUI lawyer who understands the limitations of injury enhancements filed under penal code 12022.7. Finally, you want an attorney who is competent and successful at trial if necessary.
The criminal defense attorneys at Dorado & Dorado are experienced in DUI defense. We have handled hundreds of misdemeanor and felony DUIs, including all enhancements filed under VC 23578, PC 12022.7 and more. Our criminal defense attorneys are available everyday to answer all of your DUI questions. There is no fee for a consultation. Call today!
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VC 23153: Felony DUI
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VC 23152 & 23153: Felony DUI List
- VC 23152(a) DUI with three DUI priors within 10 years
- VC 23152(b) DUI w three DUI priors and a BAC of at least 0.08% within 10 years
- VC 23152(c) DUI Driving by addict with two DUI priors in ten years
- VC 23152(d) DUI for commercial drivers w/ at least 0.04% BAC and three DUI prior within 10 years
- VC 23152(e) DUI on drugs with three priors within 10 years
- VC 23152(f) DUI on drugs and alcohol with three priors of any DUI within 10 years
- VC 23153(a) DUI with injury
- VC 23153(a) DUI with a prior felony DUI within 10 years
- VC 23153(b) DUI with injury and a BAC of at least 0.08%
- VC 23153(d) DUI by commercial drivier with injury and a BAC of 0.04% or more
- VC 23153(e) DUI of drug with injury
- VC 23153(f) DUI of drugs and alcohol with injury
- VC 23578 Enhanced penalties for DUI above 0.15% BAC or refusal to take cheical test (blood, urine, or breathalyzer)
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San Bernardino County
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- Alcohol defined for DUI law: The term alcohol, as defined under California DUI law, includes: any ethanol containing beverage such as beer, wine, hard liquor (rum, vodka, tequila, gin, scotch, bourbon), champagne, wine coolers, vanilla extract, and cough syrup.
- Drugs defined for DUI law: The term drugs, as defined under California DUI law, includes: all legal and illegal drugs, including heroin, PCP, marijuana, concentrated cannabis, lorazepam, morphine, quaaludes, sleep aids, cocaine, meth, acid, mushrooms, pain killers, and more. Remember, any amount of impairment by any of the above listed substances, or combination of any of the above listed substances, is sufficient for a DUI charge.
- PC 187(a) Murder (Second Degree) For DUIs where someone is killed as a result of the defendant's DUI and the defendant has previously suffered a conviction for DUI. The prison term is fifteen years to life if convicted (15-life).
- PC 191.5(a) Vehicular Manslaughter. Charged where the defendant is DUI with gross negligence and a person is killed as a result of the defendant's DUI. It is charged as a felony and if convicted the defendant could face up to ten (10) years in prison.
- PC 191.5(b) Vehicular Manslaughter. Charged where the defendant is DUI without gross negligence and a person is killed as a result of the defendant's DUI. It is charged as either a misdemeanor or as a felony. If charged as a misdemeanor the defendant could face up to one (1) year in the county jail. If charged as a felony the defendant could face up to four (4) years in prison.
- PC 191.5(d) Vehicular Manslaughter. Charged where the defendant has previously suffered a DUI conviction and the defendant kills another person as a result of a new DUI. This is also known as a Watson murder. If convicted the defendant could face fifteen years to life (15-life) in prison.
- PC 192.5(a) & 192.5(b) Vessel Manslaughter. Charged where the defendant is operating a vessel. Charged where the defendant kills someone while DUI and operating a vessel (such as a boat). If convicted or PC 192.5(a) or PC 192.5(b) the defendant could face up to ten years in prison (Vessel manslaughter charges have many subsections and carry a varying degree of punishments much like Vehicular Manslaughter charges).
- VC 23153(a) DUI With Injury. Charged where the defendant operates a vehicle that leads to the injury of another person but the defendant's BAC is less than 0.08%. VC 23153(a) may be charged as a misdemeanor or as felony. If convicted the defendant could face up to three years in prison for a felony conviction and up to one year in jail for a misdemeanor conviction.
- VC 23153(b) DUI With Injury. Charged where the defendant operates a vehicle that leads to the injury of another person and the defendant's BAC is 0.08% or greater. VC 23153(b) may be charged as a misdemeanor or as a felony. If convicted, the defendant could face up to three years in prison and up to one year in jail for a misdemeanor conviction.
- Note: For VC 23153(b) DUI With Injury charges, if the defendant has two prior convictions for DUI then the defendant may face up to four (4) years in prison on a felony DUI with injury conviction.
- VC 23153(d) DUI With Injury for Commercial Driver's With 0.04% or more BAC. Charged where the defendant was driving a commercial vehicle while DUI and the alleged victim suffered an injury as a result of the defendant's DUI. VC 23153(d) may be charged as a misdemeanor as a felony. If convicted of a felony VC 23153(d) the defendant could face up to three (3) years in prison. If convicted of a misdemeanor VC 23153(d) the defendant could face up to one year in the county jail.
- VC 23153(d) with two prior DUIs: For commercial drivers that have suffered two prior conviction of DUI the law allows for a maximum sentence of four (4) years in prison (as opposed to three (3)). The charge is the same (VC 23153(d)) but the penalty is increased.
- VC 23153(d) DUI with Injury involving drugs. Charged where drugs (not alcohol) is the intoxicating substance that rendered the driver impaired.
- Note: For high BAC DUIs the district attorney will usually add a high BAC enhancement to the criminal charge. This enhancement is allowed under VC 23578 where the DUI driver's BAC is 0.15% or higher. This enhancement, if proven, will subject the defendant to higher penalties such as increased jail or prison sentence or increased fines and probation terms. VC 23578 also covers a situation where the driver refused to take a chemical test which could have greater negative consequences with the DMV hearing.
- Finally, California enhancements exist to add one (1) additional year in prison for every victim in excess of one (1). For example, if the defendant is convicted of a VC 23153(b) and two people (besides the defendant) are injured the defendant could face up to a maximum of four years in prison (3 years for the first victim and 1 additional year for the second victim).
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Warning: discussing your DUI case with a county prosecutor, investigator, or any law enforcement agency could seriously jeopardize your case. Law enforcement is legally entitled to misrepresent the facts during any confession. The district attorney and law enforcement may seem like they are on your side but they should be seen as the entities that are goal oriented in finding the evidence needed to prove you guilty of a DUI.
Warning II: You only have ten (10) days from the date of arrest or citation for a DUI in order to contact the DMV to request a hearing where you may present evidence in your defense at the DMV.