San Diego Felony DUI Attorney

A first or second DUI in San Diego is normally filed as a misdemeanor. The stakes change entirely when the District Attorney files it as a felony. You are facing state prison rather than county jail, a revocation of your driving privilege measured in years, and a felony record that follows you through every job application, professional license, and housing check for the rest of your life.

There are four routes from misdemeanor to felony in California, and which one applies determines the whole shape of the defense. Marc Kohnen has been trying criminal cases in San Diego since 2008, with jury-trial not-guilty verdicts from felony charges down to misdemeanor DUI.

The Four Ways a DUI Becomes a Felony

Each of these has its own statute and its own pressure points:

• DUI causing injury to another person — Vehicle Code section 23153, a wobbler the District Attorney may charge as a misdemeanor or a felony
• A fourth DUI within ten years — Vehicle Code section 23550
• Any DUI after a prior felony DUI conviction within ten years — Vehicle Code section 23550.5
• A death — charged as vehicular manslaughter while intoxicated under Penal Code section 191.5, or in some cases as murder

DUI With Injury Under VC 23153

This is the most commonly filed felony DUI, and the most commonly overcharged. Section 23153 requires more than a collision. The People must prove you drove under the influence, that you also committed some unlawful act or neglected a legal duty while driving, and that this act or neglect caused bodily injury to another person. Each of those is a separate element, and each is contestable.

Causation is where these cases turn. A DUI arrest at the scene of an accident does not establish that the intoxication caused the accident, and prosecutors sometimes treat the two as the same thing. If the other driver ran the light, drifted the lane, or stopped without warning, the unlawful-act-plus-causation chain breaks — and that is a defense to the felony even where the underlying DUI is provable. The severity of the injury also matters: the statute requires bodily injury to someone other than the driver, and a great bodily injury enhancement under Penal Code section 12022.7 adds consecutive time on top of the base term if the People can prove it.

Because section 23153 is a wobbler, there is room to argue it should have been filed as a misdemeanor in the first place, and room later to seek reduction under Penal Code section 17(b). Accident reconstruction, medical records, and the physical evidence from the scene do most of that work.

The Fourth Offense Within Ten Years

Under Vehicle Code section 23550, a fourth DUI within a ten-year window may be charged as a felony carrying sixteen months, two years, or three years in state prison, along with a four-year revocation of your license and designation as a habitual traffic offender.

The ten-year window is measured between offense dates, not conviction dates, and that detail decides cases. So does the validity of each alleged prior. A prior that was entered without a proper advisement of rights, or where you were not represented and did not knowingly waive counsel, can be challenged and struck — and striking one prior can take the case out of felony territory entirely. Out-of-state convictions have to actually correspond to a California DUI offense to count, which is not automatic. Every prior in the complaint deserves to be pulled and read rather than accepted.

When a DUI Is Charged as a Homicide

If someone died, the exposure changes again. Penal Code section 191.5 covers vehicular manslaughter while intoxicated, with gross vehicular manslaughter while intoxicated under subdivision (a) carrying substantially greater exposure than the ordinary form under subdivision (b). The difference is gross negligence — whether the driving showed a reckless disregard for human life or ordinary negligence, which is a genuinely contested question in most cases rather than a foregone conclusion.

In a narrow category of cases, prosecutors also file second degree murder on an implied malice theory, where a defendant with a prior DUI conviction was previously advised that driving under the influence is dangerous to human life. These are among the most serious cases a criminal defense attorney handles, and they demand full trial preparation from the first week.

The License Consequences Are Separate

A felony DUI conviction under section 23550 carries a four-year revocation, and a conviction under section 23153 carries its own lengthy revocation period. These come through the court, and they stack on top of whatever the DMV does administratively after the arrest.

That administrative case has its own ten-day deadline that runs from the day of arrest, long before the felony filing decision is even made. Preserving it is a separate task from defending the criminal charge, and it should not wait.

Getting the Felony Reduced

Not every felony DUI stays a felony. Where the charge rests on a wobbler like section 23153, the realistic objective is often reduction to a misdemeanor rather than acquittal — through negotiation before the preliminary hearing, through a motion at the preliminary hearing where the evidence does not support the felony, or through a Penal Code section 17(b) motion at sentencing.

That work starts with the file. Calibration and maintenance records for the breath instrument, Title 17 compliance on a blood draw, the basis for the stop, the accident reconstruction, and the medical documentation of the claimed injury all go to whether the felony elements hold up. Marc reviews these cases personally and prepares them for trial from the beginning, because the credible prospect of trial is what makes a reduction possible.

If you or a family member is facing a felony DUI anywhere in San Diego County, call (619) 398-2500 for a free, confidential case evaluation. Marc is available 24 hours.

More on DUI & DWI

• DMV Hearings — Ten days to demand a hearing under VC §13558 — or the suspension takes effect without one.
• First Offense DUI — VC §23536 penalties, probation terms, and where a first-offense case is actually won.
• Chemical Test Refusal — VC §23612 implied consent — a one-year suspension that outlives a dismissal, and how refusals are challenged.
• DUI of Drugs — No legal limit means the People must prove real impairment — cannabis, prescriptions and the DRE evaluation.
• Underage DUI — Zero tolerance at 0.01% under VC §23136 — a one-year suspension with no conviction required.

Back to the DUI & DWI overview.