Felony DUI
Los Angeles Felony DUI Attorneys
Overview of California DUI Laws
In California, In order to convict a person of DUI, the prosecution must prove beyond a reasonable doubt that the accused drove a vehicle while under the influence of alcohol, drugs, or both ; or, that the accused drove a vehicle with 0.08 percent or more, by weight, of alcohol in their blood. Depending on the circumstances, a DUI case may be charged as a misdemeanor or as a felony. It can be charged as a felony when any of the following occurs:
- someone is killed or seriously injured as a result of the DUI;
- the accused has three or more prior DUI convictions (or convictions that count as a prior DUI, such as a wet reckless). These convictions must have occurred within 10 years of the new charge to count against the accused as a prior conviction; or
- The accused has a prior felony DUI conviction.
DUI is a very serious crime in California. Depending on whether you are charged with a misdemeanor or a felony, a conviction could mean spending the next 4 years in a California state prison. In addition to criminal penalties, getting stopped for DUI puts your driving privilege in jeopardy. Many people facing DUI charges are afraid of losing their driver’s license. In Southern California, this is an honest fear. More than just about any place on earth, people who live in the Los Angeles area need a car. We drive to work. We drive kids to school. We drive to run errands. For most people, there isn’t a day that goes by that doesn’t have a good chunk of it spent behind the wheel.
Therefore, if you or a loved one has been charged with Felony DUI in Los Angeles, having an experienced and aggressive Los Angeles DUI attorney fighting for you may mean the difference between freedom and prison and between keeping and losing your license. At Lewin Law Group, [our team of DUI attorneys/our founder, Chad Lewin have over a decade of experience successfully defending clients from DUI charges. If, after reading our comprehensive analysis of California DUI laws below, you have questions or would like to speak to a Los Angeles DUI attorney, call attorney Chad Lewin/the attorneys at Lewin Law Group immediately for a FREE, CONFIDENTIAL consultation at (888) 546-5394. We are available 24 hours a day, 7 days a week to help you.
California Vehicle Code Section 23152 VC Examined
In California, most DUIs fall under one of two definitions under Vehicle Code Section 23152 VC, either the “subjective” definition under 23152(a) VC or the “per se” definition under 23152(b) VC. Violation of either definition of DUI is usually a separate misdemeanor offense. While almost everyone is familiar with the “per se” definition under 23152(b) VC, which states that it is a crime for any person to drive a vehicle with a blood alcohol content (BAC) of .08% or higher, most people are shocked when they become aware that the “subjective” definition under 23152(a) VC even exists. You may be surprised to learn that, under 23152(a) VC, it is a crime for any person who is “under the influence” of any alcoholic beverage, regardless of that person’s blood alcohol content (BAC), to drive a vehicle. The key to 23152(a) VC is the language “under the influence”, which is defined as your physical and mental abilities being impaired to the point that you can no longer drive as well as a normal cautious sober person.
California DUI laws are purposely set up in this manner, using these two different definitions, so that law enforcement can arrest more people for DUI and prosecutors can obtain more DUI convictions. The reason why these two definitions lead to more DUI arrests and convictions is because it allows Vehicle Code Section 23152 VC to account for different levels of tolerance in different people.
Example:
Cindy just recently turned 21 and has never had a drink in her life. She and her friends go out to a bar to celebrate Cindy’s first drink. Cindy, who weighs 120 pounds, has 2 cocktails with her friends. When Cindy gets into her car to drive home she has a .06% BAC, below the “legal limit” of .08 % BAC. Yet, because of her low tolerance to alcohol, her ability to drive has become impaired. Cindy gets pulled over for swerving in and out of her lane numerous times. Because of her driving and the smell of alcohol on her breath, Cindy is asked to perform Field Sobriety Tests (FSTs) and an on-field Breath Test (PAS). Incorrectly thinking she has no other choice, Cindy consents to both. Cindy performs very poorly on the FSTs, but blows only a .06% BAC on the breathalyzer. Despite blowing less than a .08% BAC, the cop believes Cindy is “under the influence” and arrests her for suspicion of DUI under Vehicle Code Section 23152(a) VC.
Note:
If 23152(a) VC did not exist, Cindy could not be arrested nor convicted for DUI under the current language of 23152(b) VC. This is because, regardless of how impaired her ability to drive was, she had a BAC under .08%.
Example:
Jake is 60 years old, weighs 240 pounds, and is a lifetime drinker. Jake goes to his favorite sports bar to have some beers and catch his favorite team play. When Jake gets into his car to drive home he has a .10% BAC, above the “legal limit” of .08% BAC. Yet, because of his high tolerance to alcohol, his ability to drive has not become impaired. Jake gets pulled over for a busted taillight, despite otherwise driving perfectly. Because of the smell of alcohol on his breath, Jake is asked to perform Field Sobriety Tests (FSTs) and an on-field Breath Test (PAS). Incorrectly thinking he has no other choice, Jake consents to both. Jake performs very well on the FSTs, but blows a .10% BAC on the breathalyzer. Despite not showing any sings of impairment and performing well on the FSTs, the cop arrests Jake for suspicion of DUI under Vehicle Code Section 23152(b).
Note:
If 23152(b) VC did not exist, Jake would likely not be arrested nor convicted for DUI under the current language of 23152(a) VC. This is because, regardless of how high his BAC was, his ability to drive was not impaired.
Practically speaking, most people arrested for DUI are charged with both 23152(a) and 23152(b). Usually, when negotiating a plea deal, a skilled attorney will be able to get the prosecutor to drop one of the offenses. Additionally, at trial, you could be found guilty of both offenses, guilty of only one, or not guilty of both. Even if you are found guilty of both offenses, you will be punished as if you were only convicted of one of them.
The rest of this article will discuss the “per se” definition of DUI under Vehicle Code Section 23152(b) VC. For a discussion of the “subjective” definition of DUI under Vehicle Code Section 23152(a) VC, please see our page on Driving under the influence/DUI regardless of BAC.
How is Felony DUI Prosecuted?
Under California Vehicle Code Section, in order to convict you of felony DUI, the prosecution must establish the following elements:
- You are guilty of either kind of DUI under 23152 VC; AND
- any of the following is true;
- someone is killed or seriously injured as a result of the DUI;
- the accused has three or more prior DUI convictions (or convictions that count as a prior DUI, such as a wet reckless). These convictions must have occurred within 10 years of the new charge to count against the accused as a prior conviction; or
- The accused has a prior felony DUI conviction.
Defenses to Felony DUI
While you may feel like fighting a DUI charge is hopeless, remember, a conviction requires all 12 jurors to agree on your guilt. A skilled Los Angeles DUI criminal defense attorney can create doubt in these categories, making the prosecution’s evidence against you seem shaky. At Lewin Law Group, our unshakable commitment to putting the interests of our clients first, coupled with our strong work ethic and commitment to leaving no stone unturned has resulted in countless acquittals, dismissals, and reduced charges for our clients. The following are but a few of the possible defenses our attorneys can utilize to win your case.
The Rising Blood Alcohol Defense
This defense is closely related to the above discussion about not having a BAC of .08% or higher while driving, but it isn’t limited to situations where you began drinking only after you stopped driving.The rising blood alcohol defense is based on the way in which the human body metabolizes alcohol. Simply put, it takes time for the alcohol you’ve ingested to be absorbed by your body and, thus, raise your BAC. There are many factors that affect the rate of absorption of alcohol in your body, such as the strength of the drinks, how fast you consumed them, your body weight and type, your gender, illnesses, fatigue, medications, and whether you drank on an empty or full stomach.Generally, it takes on average anywhere from 30 minutes to 3 hours for your body to absorb a drink and have it raise your BAC. This is also the time is takes on average for your body to reach its “peak BAC” after you finish drinking. After your body reaches its peak BAC, your BAC will then begin to decrease with the passage of time. Therefore, if you took your last drink relatively close in time to when you began driving, your BAC may not have gone up until after you stopped driving.
Example: Tom is out with friends to celebrate his new job. Tom has had a few drinks and a BAC of .06% when his friends convince him to have one last drink. Tom doesn’t plan on leaving the bar for a while, so he agrees. After he finishes the drink, he receives a call from his mother that his father is in the hospital. Upon hearing the news, Tom runs to his car and races to the hospital. While Tom is driving, he still has a BAC of .06%. He then gets pulled over for speeding and is arrested for suspicion of DUI. By the time he takes the chemical test at the station, an hour has passed and his body has absorbed the last drink he had. The results of the chemical test show that Tom has a BAC of .09%, over the legal limit. Tom gets charged with Vehicle Code Section 23152(b) VC.
Here, if Tom’s defense attorney can properly utilize the rising blood alcohol defense and show that, at the time he drove, Tom’s BAC was actually only .06% and not .09%, Tom should not be found guilty of DUI for driving with a BAC of .08% or higher.
The Chemical Test was Not Properly Administered (AKA Violation of Title 17)
The manner in which chemical tests are administered by the police is governed by Title 17 of the California Code of Regulations. If the police violate any of the protocols set forth in Title 17, the test results could be deemed inaccurate and, therefore, the prosecution may not be able to use them against you.
Title 17 Protocols for DUI Blood TestsUnder Title 17 of the California Code of Regulations, the police must do all of the following when administering a DUI blood test:
-
- Only a qualified individual listed in Section 13354 of Vehicle Code may draw the blood
- Nothing alcohol-based can be used to sterilize the site where the blood will be drawn
- There must be the correct amount of unexpired anticoagulant and preservative in the vial with the blood sample
- The blood sample must be properly maintained
A violation of any of the above requirements could cause an inaccurate blood test result.
Title 17 Protocols for DUI Breath Tests
Under Title 17 of the California Code of Regulations, the police must do all of the following when administering a DUI breath test:
- The breath sample must consist of deep lung air
- The breath sample can only be collected after the person giving the sample has been observed for at least 15 minutes prior to the collection of the breath sample.
- During the 15 minute observation period, the person giving the sample must not have ingested alcoholic or other beverages, regurgitated, vomited, eaten, or smoked
- The DUI breath testing instrument must be accurate
- To determine such accuracy, the breath testing instrument must be calibrated every 10 days or after 150 uses, whichever occurs first
- The person administering the test must have been properly trained in using the breath testing instrument
A violation of any of the above requirements could cause an inaccurate breath test result.
Your Breath Sample was Contaminated
Your Breath Sample was ContaminatedMouth AlcoholMouth alcohol is the most prevalent reason why breath samples are contaminated. As you will see, this is why so many of the Title 17 regulations for breath tests (discussed above) are directed towards preventing mouth alcohol contamination.
Mouth alcohol is alcohol that remains in the mouth for a variety of reasons, which can prevent breath testing instruments from accurately measuring deep lung air and, thus, creates inaccurately high BAC readings. Mouth alcohol can be caused by any of the following:
-
- Burping
- Regurgitation
- Medicines containing alcohol
- Chewing tobacco
- Dental work
- Mouthwashes containing alcohol
- Mints or breath sprays containing alcohol
- Medical conditions, such as diabetes, acid reflux, or heartburn
- Other factors
Additional Causes of Contamination
Your breath sample could also have been contaminated because of “RFI” or radio frequency interference. This occurs when interference from nearby electronic devices (cellphones, cars, etc.) affect the breath test instrument and causes inaccurate results.
Additionally, the temperature of your breath and/or the temperature outside can also cause inaccurate test results.
Criminal Penalties for California DUI
Under California law, a violation of Vehicle Code Section 23152(b) VC, could be charged as either a misdemeanor or a felony, depending on the specific circumstances of your case and whether or not you have prior DUI or “DUI-like” convictions (see our page on wet reckless).
Generally, most first, second, and third DUIs are charged as misdemeanors, yet the penalties become greater with each subsequent DUI.
The fourth DUI and each DUI after are usually charged as a felony, if you have three or more prior DUI or “DUI-like” convictions within the past 10 years of the current charge. (See our page on Felony DUI based on prior convictions). Additionally, regardless of whether you have any prior DUI convictions at all, if you are DUI and cause injury or death to another, you will face felony charges. (See our page on Felony DUI causing injury or death). Lastly, if you have ever been convicted of felony DUI, each subsequent DUI will be charged as a felony, regardless of how old the felony DUI conviction is. (See our page on Felony DUI based on prior Felony DUI conviction).
If convicted of California misdemeanor DUI, you face any or all of the following:
- Up to 5 years of Informal probation (see our page on probation)
- Up to 1 year in county jail
- Minimum of 48 hours if First DUI
- Minimum of 10 days if Second DUI
- Minimum of 120 days if Third DUI
- Minimum of 180 days if Fourth DUI or More (when charged as a misdemeanor)
- A fine up to $1,000
- Completion of an alcohol treatment program
- License suspension of 6 months to 4 years
If convicted of California felony DUI, you face any or all of the following:
- Minimum 5 years Formal probation (see our page on probation)
- Up to 4 years in a California State Prison
- Additional prison time is possible if the DUI involved aggravating factors, such as great bodily injury to at least one victim or there are numerous injured victims
- Strike if DUI involved great bodily injury to at least one victim
- A fine up to $5,000
- Completion of an alcohol treatment program
- Up to a 5-year revocation of your license
- Designation as a habitual traffic offender by the California DMV
Related Offenses
Driving under the influence regardless of BAC (Vehicle Code Section 23152(a) VC)
As mentioned above, this is the “subjective” definition of California DUI. Under Vehicle Code Section 23152(a) VC, it is a crime for any person who is “under the influence” of any alcoholic beverage, regardless of that person’s BAC, to drive a vehicle. The penalties are identical to those of a violation of Section 23152(b) VC above, but the elements of the crime and available defenses are very different.
For more information, please see our page on DUI regardless of BAC.
Driving under the influence of drugs (DUID) (Vehicle Code Section 23152(e) VC)
Driving under the influence of alcohol is not the only way to get a DUI. Under Vehicle Code Section 23152(e), it is a crime for a person who is under the influence of any drug to drive a vehicle. There are many complex restrictions regarding driving under the influence of drugs, even legal over the counter drugs.
For more information, please see our page on DUID Driving under the influence of drugs.
Underage driving with a BAC of .01% or higher (Vehicle Code Section 23136 VC)
This is the least criminal DUI charge. Being charged with Vehicle Code Section 23136 VC isn’t technically the same as being charged with a crime. This is because drivers with a BAC between .01% and .05% aren’t legally drunk. Also, common medicines that contain alcohol can leave your BAC over .01%. The only penalty for this charge is a one year license suspension.
For more information, please see our pages on Underage DUI.
Underage Driving with a BAC of .05% or Higher (Vehicle Code Section 23140 VC)
This is the most common underage DUI charge. Because anyone who gets caught with a BAC of .08% gets charged as an adult. This is the charge that really means “Underage DUI.” This charge won’t lead to jail time. But, an underage DUI conviction will automatically lead to a one year license suspension and a fine. Drivers 18 to 21 years old charged with DUI also have to attend a mandatory alcohol education program for at least three months.
For more information, please see our page on Underage DUI.
Contact a DUI Attorney at Lewin Law Group
Our Los Angeles DUI defense attorneys have a long track record of success in DUI cases. Without an experienced and aggressive attorney fighting for you, your conviction could result in the loss of your license and freedom and the destruction of your future. If you’ve been charged with DUI in California, time is of the essence! Every minute you wait matters, so call attorney Chad Lewin at Lewin Law Group immediately for a FREE, CONFIDENTIAL consultation at (888) 546-5394. We are available 24 hours a day, 7 days a week to help you or your loved ones.
- Vehicle Code Section 23152(a) VC.
- Vehicle Code Section 23152(b) VC.
- Vehicle Code Sections 23152 and 23153 VC – Felony DUI – punishment.
- Vehicle Code Section 23152(b) VC.
- Vehicle Code Section 23152(a) VC.
- Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2110 – Driving Under the Influence.
- Mcwell.nd.edu, Alcohol Absorption Rate Factors
- Id.
- Id.
- Id.
- Title 17, section 1219.1 — Blood Collection and Retention
- People v. McNeal (2009), 46 Cal.4th 1183, 1191.
- Vehicle Code Section 23153 VC.
- Vehicle Code Section 23550 VC.
- Vehicle Code Section 23550.5 VC.
- Vehicle Code Sections 23536 – 23548 VC.
- Vehicle Code Section 23566 VC.
- Vehicle Code Section 23152(a) VC.
- Vehicle Code Section 23136.
- Vehicle Code Section 23140.
- Id.
