In California, criminal cases fall into one of three categories:

  • Felony – Punishment of over one year in state prison.
  • Misdemeanors – Punishment of up to one year in county prison.
  • Infraction – Punishment includes no jail time.

Infractions typically consist of traffic related offenses such as: speeding, jaywalking, or possession of small quantities of marijuana. Misdemeanors are low level offenses such as: driving on a suspended license, petty theft (like shoplifting), and most DUI cases. Some drunk driving cases, however, can lead to felony charges (if the DUI driver causes an accident and/or injures someone). In these cases, the prosecutor can charge the driver with a felony DUI.

Bodily Harm

In Los Angeles County, the decision to file either a misdemeanor or felony DUI can be based on many factors, primarily on the type of injuries inflicted on the victim. The more severe injuries, especially deaths, will be charged as felonies.

Prior Convictions

Felony DUI charges to the driver can also take place based on the number of prior DUIs the defendant may have on their record. For example, the district attorney’s office will charge a driver with felony DUI if it is the driver’s fourth DUI offense within a ten-year window. Also, if a defendant had a prior felony DUI on their record, prosecutors are authorized to charge the successive DUI as a felony.

Elevated BAC

In some states, an elevated blood alcohol concentration (BAC level) can elevate a misdemeanor DUI to a felony charge (usually around 0.16). Not all states have this law but states typically do impose harsher punishments for a high BAC level.

Children in the Vehicle

Several states have enacted laws that charge drivers with felony DUI if children were present in the vehicle at the time of arrest. A recent high-profile enactment of this law is “Leandra’s Law in New York.” The law was passed after an eleven-year-old died when her friend’s mother crashed with her in the car; The friends mother was driving while under the influence.

In Los Angeles County, the Los Angeles City Attorney’s office typically files Misdemeanor DUI cases, opposed to felony DUI cases, as they are within the jurisdiction of the Los Angeles District Attorney’s office. The decision to submit a case to the prosecutor’s office is made by the arresting officer and the nature of the charges in their final report. The final report would be submitted to either to the Los Angeles District Attorney’s office or the Los Angeles City Attorney’s office. Upon receiving the police report, the Los Angeles City Attorney can decide to submit the file for felony filing consideration to the District Attorney. Conversely, the District Attorney can decide not to file a felony and submit a file to the City Attorney’s office for a misdemeanor charge – or reject the case entirely.