Felonies associated with Driving Under the Influence
There are several circumstances that elevate driving under the influence of alcohol, drugs or a combination of the two, to a felony.1 The first is where a driver while under the influence is involved in a vehicular accident and the driver commits a traffic or other offense, such as speeding or running a red light, or neglects a duty required by law referred to as a negligent act or omission, and the accident, “. . . causes bodily injury to any person other than the driver. The traffic violation or the negligent act or omission must be committed while a person is driving although it needn’t be the cause of the accident. An example would be a violation of the requirement for all occupants of a vehicle to be secured with seat belts. A violation of this requirement does not generally cause an accident but it satisfies one of the elements of the offense elevating a dui to a felony.2
Another circumstance where a person may be charged with a felony is when the person has within 10 years been convicted of three or more prior convictions for violations of driving under the influence under either section 23152, or section 23153, or under section 23103 as a “wet reckless.”3 If convicted of driving under the influence with 3 or more priors and probation is granted there is a mandatory 180 day county jail sentence. There is also a 4 years driver’s license suspension, however after 24 months a person may apply to DMV for a restricted driver’s license.
Where a person has a conviction for a felony dui under either of the above circumstances, and receives another violation within 10 years of that conviction, it automatically becomes a felony.4
A very serious felony involving driving while under the influence is gross vehicular manslaughter while intoxicated.5 This occurs when a person unlawfully kills, “a human being . . . in the driving of a vehicle,” while under the influence of alcohol or drugs, or a combination of the two in violation of section 23152(a) of the California Vehicle Code. However it does not apply to driving with a blood alcohol content of .08% or above which is a violation section 23152(b). The death must be the result of either the “commission of an unlawful act, not amounting to a felony, and with gross negligence,” or “the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.”6
The most serious offense committed by a person while driving under the influence is where a person is involved in an accident causing death, and where the facts support a wantonness and conscious disregard for life. In such a circumstance a charge of second degree murder can be filed.7 If a person has suffered a prior conviction for driving under the influence, and subsequently while driving under the influence kills someone in a reckless manner, that fact along with the existence of a prior conviction can elevate the offense to murder.
1 Sections 23152(a)(b) of the California Vehicle Code
2Section 23153 of the California Vehicle Code
3 Section 23103.5 of the California Vehicle Code
4 Section 23550.5(a)(1) of the California Vehicle Code
5 Section 191.5 of the California Penal Code
6 Section 191.5(a) of the California Penal Code
7 Section 188 of the California Penal Code