In California, DUIs without aggravating circumstances are referred to as “simple DUIs.” Prosecutors will generally charge a “simple DUI” as a misdemeanor; assuming the absence of aggravating circumstances. The Prosecutor will charge your DUI as a misdemeanor in most cases, even if it is your second or third DUI conviction within the last 10 years. This article will address the situations where a Prosecutor will typically bring the DUI charge as a felony, as opposed to the misdemeanor offense of a “simple DUI.”

As mentioned above, this article will focus exclusively on situations here the Prosecutor will charge you with a felony DUI. There are 4 general categories of DUIs that will result in a felony DUI charge. It should be noted that 1 and 4 are two parts of the same category, aggravating factors, but DUI causing injury and death is treated very severely, and is properly its own category; you may face Watson murder charges, or vehicular manslaughter, if the facts support those charges. Here are the 4 major categories of DUIS that may result in a felony DUI:

  • Your DUI resulted in the death, or physical injury of another person;
  • In the past 10 years, you have been convicted of 3 or more DUIs, or “wet reckless” charges;
  • There is at least one prior DUI conviction, where the DUI was charged as a felony; and

If you are convicted of a DUI with aggravating factors, and the effect of those aggravating factors caused substantial harm.  


The first category of DUIs that will typically be charged as a felony, are DUIs where your act of driving under the influence resulted in someone being injured, or even killed. The specific elements that must be shown include: (1) another person was injured, (2) that injury was caused by you, (3) the injury occurred because you drove under the influence; and (3) either (a) committed additional traffic infractions, or (b) operated the vehicle in a negligent fashion. If the Prosecutor can prove all of these elements, the next question to answer is what charge you will be facing. This depends, in large part, on how high your blood alcohol content was at the time of the incident, and whether the victim actually died, the following three charges represent the spectrum from the lowest felony charge you could face, to the highest felony charge you could face:  

  1. Violation of the California Vehicle Code §23513, which prohibits the act of driving under the influence and causing injury to another;
  2. Vehicular Manslaughter, if a death occurs, but your blood alcohol content wasn’t high enough for a Watson murder charge. 

Second Degree Murder, also known as a Watson Murder. This will occur when the person driving under the influence is so inebriated that it amounts to a wanton disregard for human life, or a reckless indifference to the harm a person might suffer. Since the charge against you is fact dependent, this article will provide three examples, to highlight what conduct is likely to result in each specific charge.


Tom and Vince are driving home in the same new car after a night at the bar. Tom is distracted and rear ends a vehicle in front of him; Vince’s head collided with the airbag rendering him unconscious. The police arrive and conduct a Preliminary Alcohol Screening (“PAS”) Test by utilizing breathalyzer. Tom blows a 0.11%. The Prosecutor may bring the case as a felony DUI in violation of Vehicle Code §23513, based on the fact that the harm to Vince was being knocked out, and Tom’s BAC was significantly higher than the legal limit. 


Utilizing the same facts as above with Tom and Vince, however the collision with the airbag killed Vince. Pursuant to California Penal Code §191.5, this could constitute Vehicular manslaughter in that Tom’s conduct could be found to constitute “gross negligence” based on his BAC being 0.11%


An individual goes to a bar and consumes 8 shots of whiskey, then gets in their vehicle. While driving, the individual is going 30 miles per hour over the legal limit, runs a red light and collides with a car killing everyone inside. The individual then continues driving off at excessive speeds; his BAC was 0.18%. This person will likely be charged with second degree murder based on driving while intoxicated; this is commonly referred to as a Watson murder. 


The state of California subscribes the concept that if you have committed certain crimes previously, the punishment should be enhanced for each subsequent conviction; these are known as “priorable” offenses. Driving under the influence is a “priorable” offense in California. With each subsequent DUI conviction, or alcohol related conviction, the Court will impose harsher, and harsher, penalties. The key time period the Court will look at when determining how many “prior” DUIs you have, is the last 10 years. As such, for purposes of this, if your first DUI was 11 years ago, and this is your fourth DUI, you only have three for purposes of “prior” analysis. The rule specifically holds that if you have been convicted of at least 3 DUIs within the past ten years, and are convicted of a fourth DUI within that time frame; you will be charged with a felony DUI in California. It should be noted that there are three general convictions that will operate as a prior offense for this section:

  1. A prior conviction in California for a DUI;
  2. A “wet reckless” conviction in California; and
  3. A conviction in another state, where if the case were charged in California it would have been a DUI or wet reckless. 


In the event that you have been charged with a felony DUI, for any of the reasons mentioned in this article, and subsequently are convicted of any DUI, including simple DUI, you will be charged with a felony DUI. 


As mentioned in the article “Aggravated DUI”, there are certain factors, which if present, could result in more severe penalties for your DUI. In some situations, the aggravating factors can also raise the charge from a misdemeanor to a felony. As seen above, a DUI resulting in physical injury or death is an example of this. We will discuss the following aggravating factors: (1) DUI causing property damage, (2) DUI with a BAC over 0.20%; and (3) DUI hit and run.  There are very few black and white examples of what raises the aggravating factors to a felony charge level, so we will approach this conceptually; the core concept is damage and culpability of the action.

  • DUI causing property damage:

The Courts view DUIs themselves as severely punishable offenses, however, when there are actual consequences caused by driving under the influence, the Courts become much harsher. Naturally, as the amount of damage increases, so do the chances of you being charged with a felony DUI. Similarly, the higher your BAC at the time you cause the damage, the higher the odds you will be charged with a felony DUI.

  • DUI with BAC over 0.20%

This is a fairly clear example of what must happen to be charged with a felony DUI. The closer you get to a BAC of 0.20% the more likely it is that your DUI will be charged as a felony. Once you hit a BAC of 0.20%, your DUI will be charged as a felony.

  •  DUI hit and run

California Courts treat hit and runs as very serious offenses to begin with, this is even more so when the driver was intoxicated at the time the hit and run occurred. One could speculate that the punishments are so stiff, because proving that someone was drunk at the time of the hit and run is extremely difficult, and the Courts want to deter people from engaging in that conduct.


In California, DUIs carry stiff and long-lasting consequences if you are convicted. The punishments become significantly harsher when you are convicted of a felony DUI. The punishments include hefty fines, substantial incarceration time, and loss of licenses (driver’s or professional). Not to mention the public stigma associated with being a person who has been convicted of a felony or of driving under the influence. The attorneys at Los Angeles DUI Attorney Law Firm have years of experience representing clients who have been charged with a wide range of criminal conduct; including felony DUI. Utilizing our years of experience, we will bring our considerable knowledge to bear on your case, ad fight for the best outcome available.

If you, or someone you know has been charged with a felony DUI contact the attorneys at Los Angeles DUI Attorney Law Firm for a FREE consultation. It is important to contact us as early as possible so that we can begin building the strongest defense possible for your case. In many cases, the Prosecutor is open to plea bargains, if the Defendant is truly remorseful, and attempting to make steps in the right direction. At Los Angeles DUI Attorney Law Firm, we will handle your case professionally and discretely. 

Contact our office today at 424-285-5400 for a FREE DUI