As mentioned in a number of articles relating to DUIs, a DUI is generally known as a “wobbler” offense, which means that the Prosecutor can choose to bring the case as either a misdemeanor or a felony. That decision is frequently based on considerations such as the amount of harm caused, how high the person’s BAC was at the time of arrest, and any number of factors. However, in certain circumstances where the Prosecutor will bring the DUI charge against you as a felony. A felony DUI carries extremely harsh consequences, and can ruin a person’s life. Common examples of criminal charges that are brought as felonies include: (1) driving under the influence where someone suffered serious bodily injury or death, (2) any form of a DUI when you have been convicted of a felony DUI previously, (3) if you have had three previous DUI convictions, and the present DUI represents your fourth DUI over the span of ten (10) years. This article is specifically designed to discuss the final situation in which the Prosecutor will bring the DUI charges against you as a DUI; a fourth DUI within the span of ten (10) years. For a more detailed discussion about other situations where the Prosecutor will bring felony charges against you, please take a moment to review our article titled “Felony DUI.”
FELONY DUI BASED ON FOURTH DUI OVER THE COURSE OF 10 YEARS?
Pursuant to California law, you can be charged with a felony DUI if you have been convicted of three (3) previous DUIs in the past ten (10) years; this includes convictions in other states, which will be discussed along with the other “priorable” offenses below:
DRIVING UNDER THE INFLUENCE IN VIOLATION OF CALIFORNIA VEHICLE CODE §23152
In order to be convicted of a violation of California Vehicle Code §23152(a), also referred to as a “simple” DUI, the Prosecutor must have proven the following beyond a reasonable doubt:
You were the operator of a motor vehicle, and were operating that vehicle at the time you were stopped.
At the time you were stopped at least one of the following was true.
Your BAC was over 0.08%
Your BAC was under 0.08%, but the officer believed that you were impaired nonetheless
You were addicted to drugs, unless you were enrolled in a treatment program at the time; and
You were impaired by drugs
If the Prosecutor proved those elements beyond a reasonable doubt, and the jury rendered a guilty verdict, this will constitute a “priorable” offense. As such, a conviction under this statute constitutes a “previous DUI” for purposes of a felony fourth DUI charge.
DRIVING UNDER THE INFLUENCE INVOLVING INJURY IN VIOLATION OF CALIFORNIA VEHICLE CODE §23153
If you were convicted of driving under the influence, and that conduct resulted in an individual suffering an injury, this will count as a “priorable” and will count towards the three prior DUIs as it relates to a felony DUI charge based on the number of priors you have. If the conduct resulted in death, and you were convicted of vehicular manslaughter pursuant to Penal Code §191.5 will also count towards your “prior” DUIs.
“WET RECKLESS” PURSUANT TO CALIFORNIA VEHICLE CODE §23103.5
In many DUI cases, the Prosecutor will offer the Defendant a plea deal, where the Prosecution drops he Driving Under the Influence charges in exchange for a guilty plea to what is known as a wet reckless. You cannot be charged with a “wet reckless”, and the vehicle code clarifies that this is a “priorable” offense for the purposes of a felony DUI charge based on the number of previous DUIs
OUT-OF STATE CONVICTIONS
Out of state convictions can count towards your prior offenses provided that had the conduct giving rise to the conviction in the other state occurred in California, a conviction for a “priorable” offense would have occurred. This becomes particularly tricky when the Defendant took a plea deal in another state. It is important to investigate the nature of the plea deal from the other state to determine if it will count as a prior offense.
PREVIOUSLY EXPUNGED CONVICTIONS FOR ANY OF THE CRIMES MENTIONED ABOVE
Even expunged charges can serve as a prior offense for purposes of a Felony DUI based on “priorable” offenses; keep in mind, the expunged conviction must till have occurred within the past 10 years for it to count towards your total.
If you have been convicted of three of the offenses set out above in the past ten (10) years, you will be facing a felony fourth DUI charge. That is, as long as the Prosecutor can prove the existence of the prior offenses. This is not always a “slam dunk” for the Prosecution
THE HURDLE A PROSECUTOR COULD FACE IN PROVING THE “PRIOR” DUI
Naturally, to be charged with a felony DUI based on the allegation that you have three (3) prior DUI convictions within the past ten (10) years, the Prosecutor will have to prove the existence of prior DUI convictions beyond a reasonable doubt, in addition to the fact that you were driving under the influence in the present case. As such the Prosecutor must prove the following:
You were operating a motor vehicle at the time you were stopped;
At the time you were stopped, and operating the motor vehicle, either:
You were impaired by alcohol
Your BAC was in excess of 0.08%
You were impaired by drugs
You were addicted to narcotics, unless you are current enrolled in a treatment program; and
You have had three (3) prior DUI convictions in the past ten (10) years
In order to prove the prior convictions, the District Attorney will rely on court records, DMV records, or certificates of completion of court mandated programs. While proving prior convictions is not a sure thing, it is also not incredibly difficult to prove the prior convictions; this is why you need attorneys who aren’t afraid of a fight in your corner.
THE ATTORNEYS AT LOS ANGELES DUI ATTORNEY LAW FIRM AGGRESSIVELY DEFEND CLIENTS WHO HAVE BEEN CHARGED WITH A FOURTH DUI FELONY
As in every other case the attorneys at Los Angeles DUI Defense Law Firm will throw everything they have at the Prosecutor to defeat the charges against our clients. We challenge every piece of evidence the Prosecution intends to present at trial, we cross-examine the Prosecution’s witnesses aggressively, and in a calculating manner. Our attorneys will bring their considerable years of experience and training into the Courtroom, and raise every defense available to protect your freedom. This mentality will be apparent from the very beginning of the case, in every communication we have with the Prosecuting Attorney; with the ultimate goal of having the Prosecutor either dismiss the charges against you altogether, or at the very least reduce the charges against you to a misdemeanor offense. Having an attorney from Los Angeles DUI Attorney Law Firm on your team could be the difference between freedom and incarceration.
When dealing with a felony DUI, it is necessary to approach the defense of our clients from every angle possible. In many cases, we employ a third-party laboratory to retest the blood sample the Prosecutor is basing their accusations on to determine whether or not the results of the Prosecution’s analysis are correct. This is even more common when the alleged BAC is close to 0.08%. It is also common to employ a private investigator to look into the arresting officer, his lifestyle, and his whereabouts prior to your arrest; it is not uncommon to discover information that would tend to show that the arresting officer was incorrect about a material aspect of his testimony. Armed with this information, we aggressively attack the Prosecution’s case, and expose the flaws to the jury.
4TH DUI PENALTY AND SENTENCE
As mentioned in our other articles detailing the consequences of a first, second, and third offense DUI, it is clear that the penalties for driving under the influence can be incredibly severe. However, the consequence of a felony DUI conviction has the very real possibility of ruining your life. When you are convicted of a felony DUI based on the existence of three prior DUI convictions over the past 10 years, the penalties change depending on the facts of the present DUI, and the facts surrounding the previous DUIs. The sentence can even be affected by the presence of DUIs beyond ten (10) years prior, offenses involving alcohol, offenses involving alcohol. Essentially when determining the appropriate sentence, everything is on the table. It is important to have skilled counsel with you as the determination is made so that they can make coherent arguments aimed at identifying the positive qualities you possess, and the proactive steps you have taken to remedy the issue. While it cannot be stated with certainty what penalty you will receive if convicted, the following list is the general penalties associated with a conviction:
- A sentence of 2 to 4 years in a state prison
- A monetary sanction ranging from $390 to $1,000 plus the costs to the Court
- A designation as a “Habitual Traffic Offender (“HTO”) for thee (3) years
- License suspension for four (4) years
A conviction of a felony DUI based on the existence of three prior DUIs in a ten year time span can be a life changing event; it has the potential to haunt you for the remainder of your life. At Los Angeles DUI Attorney Law Firm, we do not anyone’s life to be ruined as a result of an accident, and we will fight to the best of our ability to prevent that from happening to you. If you have been charged with a felony DUI based on prior convictions, contact us today at 424-285-5400 for a FREE consultation.