Driving under the influence of alcohol or drugs is prohibited under California law. While most first-time DUI offenses are convicted as misdemeanors, there are first-time DUI offenses that are charged as felonies. Being charged with a felony DUI can attract lifelong penalties, which is why it is important to understand when you may be at risk of a felony DUI conviction.

If you are facing felony DUI charges, it is essential to reach out to a skilled and experienced criminal defense attorney to help you protect your rights. Our defense lawyers at Foos Gavin Law Firm in Sacramento, CA, have experience handling complex criminal cases and are ready to help you fight your charges. 

Types of Felony DUIs

There are various factors that can change a typical misdemeanor DUI into a felony DUI. Even though the consequences of every factor could be different, the penalties for every felony DUI are the same.  The four common factors that can make a DUI a felony include:

  • A fourth DUI conviction within a period of 10 years
  • A previous felony DUI conviction (the timeline does not matter)
  • You caused another person’s death while driving under the influence
  • You caused another person great bodily injury while driving when intoxicated

What Happens When you are Charged with a Fourth DUI?

DUI is considered a priorable crime in California, meaning that the penalties for repeat offenses are more severe than a first-time conviction.  If you have been convicted for any DUI, including wet reckless charges, within the last ten years, it will affect your DUI conviction. A fourth DUI conviction is charged as a felony under California law, but in rare cases, it can be charred as a misdemeanor.

The Penalties For a Fourth DUI Conviction

Although the judge has discretion over specific penalties, a 4th DUI conviction will automatically attract more severe penalties than the previous DUI convictions. There are certain factors that may affect your punishment which include:

  • Factors revolving around your case
  • Your behavior from when you were arrested through trial
  • Your legal representation, and
  • If you injured another person while driving under the influence


Just as with other DUI convictions, a fourth DUI charge will likely attract fines of up to $1,000. But the court may also charge you a certain amount as a processing fee for the charges. In most cases, you may end up paying up to $18,000 for both the fees and fines without any extra costs that you may incur from the court.


You will likely face up to three years imprisonment in state prison if you are convicted of a fourth DUI. The conditions of a state prison are different from those of a county jail and the penalties are harsher. However, with great legal representation, you may be able to acquire a lesser charge of 16 months imprisonment.

License Revocation

You risk losing your driving privileges for up to four years following a 4th DUI conviction. Unlike other DUI convictions,  a fourth DUI conviction attracts a license revocation and not suspension. After completing your revocation period and other punishments imposed by the court, you will have to visit the DMV for a driving license reapplication.

Additional Penalties

 After a fourth DUI conviction, you may be required to pay for a 30-month DUI education program plus the installation and maintenance fee of an IID (ignition interlock device) that will likely be placed on your vehicle. Since you will be charged as a felon, you may face challenges when looking for a job and other restrictions. You may also be enrolled in mandatory addiction treatment.

Aggravating Factors

Aggravating factors in a fourth DUI conviction are circumstances that, if present, can enhance your penalties. For example, if while committing a fourth DUI offense you:

  • Injured someone else
  • Caused a fatal accident
  • Refused to take a chemical test
  • Drove under influence with a minor in the vehicle

If any of these factors were present in your case, you could face new or harsher penalties.

DUI With a Prior Felony DUI Conviction

A DUI conviction with a prior felony DUI conviction on your record will attract harsher penalties. This offense is charged under California vehicle code 23550.5 and it includes a conviction under vehicle code 23152 or 23153 with a previous felony DUI conviction. Note that this conviction will automatically be charged as a felony if:

  • You have a prior conviction of either of the following offenses within a period of ten years:
  • Vehicle code 23153 (that was charged as a felony)
  • Penal code lg2(c)(1) (that was charged as a felony)
  • Vehicle code 23152 (that was charged as a felony)
  • A conviction of either of the following that occurred at any time (the ten-year period does not apply in this case).
  • Penal code 192(c)(3) (charged as a felony)
  • Penal code 191.5

The Penalties for a DUI With a Prior Felony DUI Conviction

Below are penalties for vehicle code 23550.5 without probation:

  • Imprisonment in state prison for up to 3 years
  • Fines of up to $1,000 plus other fees
  • 4 years license revocation by the DMV and 5 years for a subsequent violation of vehicle code 23153.

Penalties for VC 23550.5 with probation

  • 3 years imprisonment in state prison
  • Fines of up to $1,000 and other fees that may be imposed by the court
  • License revocation for four years.

Additional Penalties

You may also be subjected to the following penalties:

  • Restitution funds of $200 to $10,000 to the affected victims
  • 90 days impoundment of the vehicle used in the offense
  • The court may also order you to have an ignition interlock device installed on your vehicle as a probation condition.
  • You may also be designated as a habitual traffic offender for up to three years

Aggravating Factors

The following factors may cause a punishment enhancement if present in your case.

  • Refusing to take a chemical test ⏤ may lead to an additional 18 days in county jail. A commercial vehicle driver may also be prohibited from driving a commercial vehicle for up to 1 year.
  • Committing a second or subsequent DUI offense with a commercial vehicle ⏤ If this is your second or subsequent DUI charge, the DV can ban you from ever operating a commercial vehicle.
  • A defendant between 13 and 21 years ⏤ If you are convicted under VC 23550.5 while in the age gap- of 13-21 yrs, you will face a one-year license suspension.
  • A defendant below 18 years ⏤ You risk having your license revoked until you turn 18 years if you are convicted for this offense while under 18 yrs.

Felony DUI Causing Serious Injuries

DUI causing serious injuries is charged under VC 23153 and it applies in incidents where the defendant causes other people or another person great bodily injuries while driving under influence of drugs or alcohol. In this case, the alleged victim could be a pedestrian walking by the road, a passenger riding in your vehicle or another vehicle, or another motorist on the road.

VC 23153 Charges

There are various elements that the prosecutor needs to prove for you to be convicted under vehicle code 23153. They include:

  • You breached the DUI laws by either doing the following:
  • Operating a vehicle with a BAC higher than 0.08%
  • You drove while your mental and physical capabilities had been impaired by alcohol or drugs
  • While breaching the DUI laws, you acted in a negligent manner and breached an additional law
  • Your negligence caused injury to another party

Note that if you were driving a commercial car the prosecutor needs to only show that your BAC was above 0.04%. Driving while intoxicated means that your mental and physical abilities are impaired and you cannot drive or take caution as a sober person would.

Penalties for Violating VC 23153

  • Confinement in state prison for up to 4 years
  • Fines between $1015 to $5000
  • If the alleged victim suffered a great bodily injury you could face additional three to six years in prison
  • If there is more than one victim, you will be subjected to one year of imprisonment for every person.

Gross Vehicular Manslaughter While Intoxicated

Gross vehicular manslaughter while intoxicated is charged under California penal code 191.5(A). The law defines this offense as when you (the defendant) drive a vehicle with gross negligence while intoxicated, leading to another person’s death. However, the prosecutor must prove the following elements for you to be convicted for this offense:

  • You drove a vehicle while intoxicated
  • While operating the vehicle, you committed a misdemeanor, an infraction, or a legal act that could likely result in death.
  • While committing the above act, you did so with gross negligence
  • Another person died because of your gross negligence
  • A reasonable person would have known that their acts would pose a huge risk to other road users

At times, the prosecutor can charge a violation of PC 191.5 (a) as gross vehicular manslaughter or murder, but either way, the crime is charged as a felony.

Penalties for Gross Vehicular Manslaughter while Intoxicated

  • Confinement in state prison for up to 10 years
  • Maximum fines of $10,000
  • A felony probation

You may be subjected to harsher penalties if you have a previous conviction of either of the following:

  • Penal code 192(c) ⏤ Gross vehicular manslaughter
  • Vehicle code 23153
  • Penal code 192.5 a or b ⏤ Vehicular manslaughter while operating a boat

Penal Code 191.5(b)

If you drive under the influence of alcohol or drugs and are involved in a negligent act resulting in someone else's death, you could be charged with a felony under PC 191.5 (b). However, the prosecutor must prove the following elements:

  • You drove a vehicle while intoxicated
  • You committed a misdemeanor or infraction by acting out of negligence
  • Your negligent acts led to the death of another person

The penalties for this offense include:

  • Maximum fines of $10,000
  • Four years of Confinement in state prison

Watson Murder

This is considered a second-degree murder under California law and is also referred to as DUI causing death. Watson murder is charged under penal code 187, and it applies when you (the defendant) drive while intoxicated, causing the death of another person when you have a previous DUI conviction. For you to be convicted under this statute, the prosecutor must prove the following elements:

  • You deliberately engaged in an act that led to the death of another person (in this case, driving while intoxicated)
  • A reasonable person would have known that these acts posed a risk or endangered human life.
  • You disregarded human life.

Unlike in first-degree murder, you do not need the intent to kill the other person for you to be convicted of DUI murder. The prosecutor needs only to prove that you acted in malice. Here are a few ways that the prosecutor can show that you acted out of malice:

  • You clearly understand the dangers of driving while intoxicated
  • You had previously been charged with a DUI offense and attended DUI school
  • You had signed an admonition for Watson after committing a previous DUI

Penalties for DUI MUrder/ Watson Murder

  • Maximum fines of $10,000
  • Confinement in state prison for up to 15 years
  • A strike under the Three Strikes Law. If you get a second strike, you will be subjected to 25 years of confinement in state prison.

Additional Penalties

On top of the penalties mentioned above, you may be subjected to the following punishment for the surviving victims:

  • For any victim who sustained minor injuries, you will face an additional one to three years in prison
  • For every victim who sustained significant bodily injury, you will be subjected to three to six years imprisonment.

How Can I Fight Felony DUI Charges?

A felony DUI carries severe penalties such as hefty fines, driving license suspension, confinement in a state person, and a negative impact on your criminal records. Although a felony DUI is a severe offense, there are ways that you can be able to fight your charges and possibly receive a lower charge. It is essential to hire a skilled and experienced DUI attorney to help you employ strong defenses in your case. Below are some of the most common and effective defenses you can use to fight your charges

Rising BAC

After drinking alcohol, your BAC will continue to go up for up to two hours until it reaches its peak. This can, at times, lead to a higher BAC during testing. You could use rising blood alcohol content as your defense, especially if the difference margin between the allowed limit and your BAC during testing was minimal. With great legal representation and an expert to explain the rising blood alcohol concept, you may be able to obtain a plea bargain.

Faulty Field Sobriety Tests

Before you are arrested for DUI, the officers administer several field sobriety tests to help determine your mental and physical capabilities. If you do not pass the tests, the officers will conclude that you are intoxicated. Some of these tests may include:

  • One-leg stand
  • Horizontal gaze nystagmus
  • The walk and turn test

When performing the tests, the officers will look for:

  • The characteristics of your eyes
  • Eye, leg, or body tremors
  • How you sway when performing the tests
  • Your ability to follow instructions

The officer is required to conduct the FSTs in a favorable condition to ensure that the driver remains safe. For example, the law requires that the officers conduct the tests in a non-slippery, dry, hard, and leveled area and the suspect should have enough well-lit areas to perform the tests.  Even though there is no science that shows how the performance of these tests reflects the amount of alcohol in the blood, your DUI lawyer could argue that the officer who conducted the FSTs was not well trained or he performed the tests in an unfavorable condition.

Acid Reflux/ Gerd

At times, a driver could have some medical conditions that could lead to false BAC results. For instance, people with a Hiatal hernia, heartburn, GERD, or acid reflux are likely to show a high BAC if tested. When a person has these medical conditions, their stomach acid is likely to flow into the esophagus which is the food pipe connecting the stomach and the throat. When this happens, alcohol is created in the mouth causing high blood alcohol content. Using an expert or medical records to prove that you either have GERD, acid reflux or severe heartburn can help you receive a lower charge or have your case dismissed entirely.

Another Party Caused the Accident

You can argue that the accident was not your fault but this mainly works in DUI causing injury cases, where you are charged with causing an accident while driving when intoxicated causing another party to sustain injuries. You can use the help of a reconstruction agent to retrieve what really happened before and during the accident to determine if another party was liable for the accident. They can use the following factors to evaluate the accident:

  • The damage to the vehicle
  • Weather conditions when the accident occurred
  • The road conditions
  • Any suggestive evidence

The arresting officer will always assume that you are at fault if they find you intoxicated at the crime scene. But that is not always the case. There are various factors that could cause the accident and you can use the help of your attorney to prove this. Again, if the prosecutor cannot be able to fully prove that you caused the accident, you could face a lesser charge.

Contaminated Blood Samples

Once you are arrested for DUI, the officers will carry out blood and breath samples to determine your intoxication levels. At times, the officers will allow you to choose the kind of test to take. However, that is not always the case especially if the officer suspects that you are under the influence of certain drugs. There are certain laws that the police should follow if they choose to carry out a blood test. For example:

  • Blood samples should only be collected by licensed medical experts
  • The site the blood is drawn from should not be cleaned or cleansed with an alcoholic product
  • The blood should be properly stored to avoid contamination
  • Each officer who comes into contact with the blood should be recorded
  • The identity on the blood sample should be maintained

If either of the above protocols are not followed during the blood test, the test results could be eliminated as evidence from your case meaning you could receive a lesser charge or your case could be dismissed.

You were Responding to an Emergency

If you are facing charges for felony gross vehicular manslaughter for DUI causing injuries, you could use this defense to fight those charges. A motorist is required by the law to use reasonable care and judgment as a careful and reasonable person would when faced with emergencies. If you faced an emergency and acted in a reasonable way, the prosecutor may not be able to prove that you acted negligently and in disregard for human life.

Additional defense includes:

  • The breathalyzer was faulty
  • The arresting officer did not have a probable cause to stop or arrest you for drunk driving
  • The police did not read the Miranda rights to you

Can a Felony DUI Conviction be Expunged?

Yes, a felony DUI conviction can be expunged but these factors must be present:

  • You complete your probation term
  • You were not confined to state prison

Any defendant who serves their sentencing in state prison cannot have a conviction expungement. But if you receive felony probation in place of imprisonment, your felony DUI conviction could be expunged.

Find a DUI Lawyer Near Me

If you have been accused of a felony DUI, it is important to seek help from a knowledgeable and experienced DUI attorney to help you protect your rights. At Foos Gavin Law Firm, we offer reliable and exceptional legal services to our clients in Sacramento, California. Call our offices today at 916-779-3500 to speak to one of our legal experts