Is a DUI a Felony? Criminal Defense Attorney Darren Kavinoky Answers

Opinions in blog posts are the sole opinions of the author and do not reflect the views or opinions of 1.800.NoCuffs and The Kavinoky Law Firm.

Is a DUI a Felony? Criminal Defense Attorney Darren Kavinoky AnswersIs a DUI a felony? It’s a top question the legal team at 1.800.NoCuffs receives. Criminal defense lawyer and TV legal analyst Darren Kavinoky answers the question explaining that a DUI could be prosecuted as a felony or a misdemeanor.

Legal Answer by Attorney Darren Kavinoky
Under California DUI law, a drunk driving arrest could be prosecuted as a felony, or a misdemeanor, depending on the facts of the case, and the criminal history of the defendant.

Two quick definitions that are important for a full understanding of the issue:

  • A misdemeanor is any crime (including a DUI) for which the maximum possible punishment is one year in jail;
  • A felony is a crime that could be punished by a possible prison term of more than one year.

So, while it’s true that a misdemeanor is, by definition, a “lesser offense” than a felony, as anyone looking at any kind of jail term will tell you, even a day behind bars is something to take seriously.


Is a DUI a felony?

With that in mind, California DUI’s are generally misdemeanors, but can be made into felonies in one of three ways:

  • The defendant has three prior DUI (or wet-reckless) convictions, and it is now their fourth DUI arrest (or more) within a ten (10) year period, as calculated from arrest date to arrest date; OR
  • Regardless of whether there are prior convictions or not, someone other than the driver is injured as the result of the DUI, (and those injuries are more than trivial, generally ones that require medical help or treatment); OR
  • Regardless of the number of convictions, the defendant has suffered a prior felony DUI conviction; once that happens, the new DUI case is a felony, even if it isn’t a fourth offense and no one is injured.

Each of these categories raises dozens of separate issues and defenses that are the subject of other articles on our site. But the last category – suffering a prior felony DUI conviction – is especially tricky, and sadly I even know some lawyers that were unaware of this issue until it hurt their clients.

Here’s how this could play out: Let’s say that, hypothetically, eight years ago you were convicted of a first-offense felony DUI because you were involved in a one-car accident where your friend, a passenger was injured, say, requiring a few stitches as a result. Now, in your current case, you simply had the bad luck to pull into a sobriety checkpoint and give a breath test of .08.

Even though this new case would ordinarily be treated as a “plain vanilla” DUI case (albeit a second-offense, because it is within 10 years of the first), because in our hypothetical situation the prior conviction was a felony, the new case will also be a felony.

The other ways that DUI-related cases can be felonies are in those especially tragic situations where a death occurs. It may be possible to bring charges of gross vehicular manslaughter while intoxicated, or even murder, both of which are felonies (California Penal Code sections 191.5 and 187, respectively).

DUI laws in California and the sentencing related to DUI offenses are very complex. The unique facts of each case make it vital that you consult with a criminal defense attorney who knows the nuances and the vast array of the drinking and driving offenses, and possible sentencing and alternative sentencing opportunities that relate. We hope that this information is helpful, and invite you to call anytime if you have further questions. We can be reached 24/7/365 at our toll-free phone number 1-800-NoCuffs.