Taimoor Rana is seasoned criminal defense attorney specializing in DUI related cases. He shares his expert legal opinion here « Plea Bargaining (Part-2): When is a DUI a Felony?
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- BAC at or above .08%
(b) It is considered as a crime to drive a vehicle with.08% blood alcohol content (BAC) and at the same time any act forbidden by law is also done by him, or if he neglect any duty imposed on him by law in driving the vehicle which was the main cause due to which a person other than him is badly injured, then the DUI is considered a felony. However, the traffic collision must have happened due to his mistake.
In case if the driver is under the influence of alcohol or drugs or both, but it was not his fault for which the traffic collision takes place, then the driver shall be charged with violation of VC 23152 (b), which is a misdemeanor.
It has been determined by the courts that if the driver undergoes a chemical test which reflects a BAC of .08% or greater within 3 hours of driving, then it will be believed on the basis of that test that the driver had a BAC of .08% or greater at the time of driving.
The punishment given in this case could either be a term of incarceration in the county jail between 90 days and one year or imprisonment in the state prison. He has to pay fines between the amounts of $390 to $1,000. His driving privileges will be suspended by the DMV for a period of one year. And he is also required to attend an alcohol education course.
Commercial Drivers, with BAC at or above .04%
(c) If the driver who is driving a commercial vehicle has a BAC of .04% or more, and responsible for any injury through any of his illegal act or he neglects any duty imposed on him by law, then the driver shall be charged with a felony. VC 15210 defines a commercial vehicle, which states that a commercial vehicle is any vehicle for which a class A or B license or a C license with an endorsement to drive a “tank” vehicle is required.
It has been determined by the courts that if the driver undergoes a chemical test which reflects a BAC of .04% or greater within 3 hours of driving, then it will be believed on the basis of that test that the driver had a BAC of .04% or greater at the time of driving.
VC Section 23550
A driver who is convicted for a DUI for 3 times in the time span of 10 years and if the driver gets a fourth DUI conviction during that 10 year span then he will be convicted of a felony. The prior DUI convictions may include violations of 23103.5, 23152, or 23153, or it might be any combination of the three.
VC 23550 is a wobbler. A wobbler is such a crime that is punishable as either a misdemeanor or a felony. A person who is convicted of VC 23550 shall be given a punishment of imprisonment for a minimum of 180 days but no more than one year in the county jail. In addition, a fine shall be imposed on him and that would be between $390 and $1,000.
The driving privileges will be revoked by the DMV for 4 years. Any person who is convicted of 23152 under this section shall be labeled as a habitual traffic offender and this would be for a period of 3 years. An affidavit acknowledging their status is required to sign by a habitual traffic offender, which is forwarded to the DMV.
VC Section 23550.5
If a driver has been convicted of a felony DUI, and then within a ten year period he is subsequently convicted of another DUI, then the subsequent DUI will be punished as a felony.
VC 23550.5 is a wobbler. A wobbler is a crime that is punishable as either a misdemeanor or a felony. A person who is convicted of VC 23550.5 shall be given a punishment by up to one year of confinement in the county jail or imprisonment in the state prison. In addition to this, a fine shall be imposed and that would be between $390 and $1,000.
The driving privileges will be revoked by the DMV for 4 years. Any person who is convicted of 23152 or 23153 under this section shall be labeled as a habitual traffic offender and this would be for a period of 3 years. An affidavit acknowledging their status is required to sign by a habitual traffic offender, which is forwarded to the DMV.
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