Is DUI Causing Injury a Misdemeanor or Felony?

DUI Causing Injury is a wobbler, under California law. This means that it can be charged as either a misdemeanor or a felony—even if it is only your first offense. In this section our attorneys will discuss the penalties for a first, second, third, or subsequent DUI causing injury.

How do I know if my case will be charged as misdemeanor or felony offense?

If you have been accused of DUI causing injury, the District Attorney’s Office (“DA”) will decide whether your case should be charged as a misdemeanor or felony. 

The DA will usually consider many factors in this decision, including:  

  • Your prior record,
  • The severity of the victim’s injuries, and
  • The facts and circumstances surrounding the accident itself.

Can a felony charge be reduced to a misdemeanor?

If the DA decides to charge your case as a felony, you are entitled to have a hearing called a “preliminary examination” (also called a “PX”, “prelim”, or “preliminary hearing”). At that hearing, a judge will decide whether the DA’s charging decision is appropriate. A judge is allowed to “overrule” the DA and decide that the charge is better categorized as a misdemeanor.

A downgrade to a misdemeanor is certainly worth seeking, but even as a misdemeanor DUI Causing Injury, the offense carries several important penalties. Many of these penalties are “mandatory” meaning that the court has to impose them no matter what.


The MAXIMUM penalties of a MISDEMEANOR DUI Causing Injury

  • One (1) year in county jail
  • A maximum fine of $1000
  • Five thousand (5,000) dollars for subsequent offenses, however, each county may attach several “penalty assessments” on top of this.
  • Restitution for any damages that the victim suffered, i.e. medical bills or property damage
  • More specific penalties will apply as well, depending on your prior record

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Vehicle Code Section 23544 sets forth the mandatory minimum penalties as:

  • Ninety (90) days of county jail
  • 12-month ignition interlock (“IID”)
  • $390 fine (plus any county-based assessments


Many defendants convicted of DUI causing Injury as a first offense may be placed on probation. However, the law requires some conditions that include jail time, as a condition of probation in this case.

Vehicle Code Section 23544 sets forth the mandatory minimum penalties as:

  • Three (3) to five (5) years probation,
  • Five (5) days jail
  • $390 fine (plus any county-based penalty assessments)
  • Completion of a three (3), six (6), or nine (9) month DUI school
  • 12-month ignition interlock device (“IID”)

In addition, the DMV will suspend your license for at least one (1) year. Depending on the specifics of your case, you may be eligible for a restricted license.



Vehicle Code Section 23544 sets forth the mandatory minimum penalties as:

  • One hundred twenty (120) days jail
  • $390 fine (plus county penalty assessments)
  • Twenty-four (24) month IID


If the court orders probation, then the following mandatory minimum terms apply under Vehicle Code Section 23562:

  • Three (3) to five (5) years probation
  • Thirty (30) or One Hundred Twenty (120) Days Jail
  • Eighteen (18) month DUI school or Thirty (30) month DUI school
  • $390 fine (plus penalty assessments)
  • Twenty-four (24) month IID

It is worth noting that the 30-day minimum jail sentence is not contingent on ordering the longer 30-month DUI school. However, the courts might be more inclined to grant a lower period of jail time when a longer DUI program is ordered.

The DMV is also likely to revoke the defendant’s license for a period of three (3) years following a conviction for DUI causing injury as a “second offense”.

If you are convicted of DUI causing injury within ten (10) years of any other DUI offense, you can anticipate a charge of DUI causing injury as a “second offense”. This can still be charged as a misdemeanor, but the penalties are stiffer than they are for a first offense.



VC Section 23566 sets forth the mandatory penalties as: 

  • One hundred twenty (120) days of county jail
  • $1,105 fine (plus county penalty assessments) 
  • Thirty-six (36) month IID

Mandatory Minimum for a THIRD OFFENSE WITH Probation

  • Three (3) to five (5) years probation
  • Thirty (30) or One Hundred Twenty (120) days of county jail 
  • Eighteen (18) month DUI school or Thirty (30) month DUI school
  • $390 fine (plus penalty assessments) 
  • Thirty-six (36) month IID

If you are convicted of DUI Causing Injury within ten (10) years of two (2) or more other DUI offenses, you can anticipate that your current DUI causing injury case will be charged as a “third offense”. This can be charged as a misdemeanor, but the penalties are higher than they are for a first or second offense.

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Enhancements for Felony DUI Causing Injury

The above tables show the “mandatory minimum” penalties for felony DUI causing injury as a first, second, or third and subsequent offense. But these are just the “minimum” sentences authorized by law. If you are charged with DUI Causing injury as a felony, the DA can add certain “enhancements” which can greatly increase your total exposure.

Enhancements for Great Bodily Injury

In a felony DUI causing injury case, the DA can add an enhancement for “great bodily injury.” This applies when the DA proves that you “personally inflicted” great bodily injury on someone “other than an accomplice.” This enhancement authorizes an additional three (3) to six (6) possible years of incarceration to your sentence.

If more than one person was injured in a “DUI causing injury” case, the court can also impose an additional one (1) year of incarceration for each additional injured victim, up to a total of three (3) years.

Prior Offenses

As you can see, DUI causing injury is a charge that triggers more severe penalties based on how many “prior convictions” the defendant has on their record. For this reason, many lawyers and judges say that DUI causing injury is a “prior-able” offense. The same is true for “simple” or “regular” DUI-the court has to impose a tougher sentence when you have more convictions for DUI on your record from earlier.

However, it is important to note that a DUI Causing Injury charge will count as a “first”, “second”, or “third” offense not just based on prior convictions for DUI causing injury. Most types of DUI convictions will count as a “prior” that triggers a higher sentence. This can lead to counterintuitive results.

Example: Consider two defendants-A and B – who are both charged with DUI causing injury. Defendant A has two prior convictions for DUI causing Injury. Defendant B also has two prior convictions, but just for “simple DUI”. Both of these defendants will be considered “third-time offenders” and should expect the same sentencing rules for “DUI causing injury as a third offense”, even though Defendant A’s record is arguably worse than Defendant B’s.

Prosecutors often like to have mandatory minimum sentences in place. Mandatory minimums allow a DA to go into court “knowing” that they will secure at least some jail time or some probation conditions, no matter what the defense argues. For this reason, prosecutors will argue for increase minimum penalties based on the defendant’s prior offenses, but if they want to do this, they must prove the prior offenses to the court. The DA must specify which of the defendant’s prior offenses counts for this purposes of the case. In many cases, proof of the prior offense is a straightforward issue and requires only a brief review of the defendant’s criminal record. But in some cases, the relevance of a defendant’s prior offense can be a very contentious issue.

What happens if I have a prior DUI Conviction from 10 Years Ago?

In some DUI causing injury cases the District Attorney has to prove beyond a reasonable doubt that the defendant was convicted of a prior DUI “within ten years.” The date of conduct is what matters here, not the date of conviction. A lot of time might pass between when a person is arrested and when they are finally convicted in the Courts. As a result, a person’s record might show that they were convicted of a DUI charge within the past ten years, but the conviction was based on an event that was older, outside of the ten-year mark. Prosecutors might assume that a conviction occurring within the past ten years counts a “prior offense” that they can use to enhance the mandatory minimum penalties, but this is incorrect. For this reason, you should carefully review the “dating” of any prior offense with your attorney.

Out-of-State Prior DUI Conviction

There are other reasons why the prosecution might have problems “proving” your prior offense. As mentioned above, DUI convictions from other states will count as prior offenses for the purposes of sentencing. But sometimes what one states calls a “DUI” might not count as a “DUI” for the purposes of California law. This is because other states might write their DUI laws differently, requiring proof of different facts in order to find someone guilty. There are also some other cases where there might be some kind of problem in the way that the defendant was convicted of their prior DUI. As you can expect, a thorough investigation is needed in order to explore this issue properly.

Any of the above issues could lead to your prior offense being “struck” from your case. While this may not lead to a dismissal, a successful motion to strike a prior offense could work to substantially decrease the penalties you could be facing for your case.

DUI Causing Injury and Ignition Interlock Device

You will notice that “DUI causing injury” comes with a mandatory ignition interlock device (“IID”) requirement. An IID is a machine that you have to connect with your car, and requires you to submit a breath sample before your car can start. This can make a sentence for DUI causing injury to be particularly burdensome, even in a misdemeanor with probation granted. There are even some cases where the defendant can be required to install and maintain an IID for up to forty-eight (48) months after conviction for DUI causing injury. This occurs whenever the defendant has a prior felony DUI or prior felony vehicular manslaughter conviction in the last ten years, or has suffered any of the following other convictions:

Learn more about the Ignition Interlock Device here.

California Penal Code Section 191.5 (a) – Gross Vehicular Manslaughter while intoxicated
California Penal Code Section 191.5(b) – Gross Vehicular Manslaughter while Intoxicated as a felony

Alternatives to Jail Time for DUI Causing Injury

Although the law requires some amount of “jail time” for a DUI conviction, each county is also allowed to authorize various types of alternatives to satisfy any jail sentence, although they will only apply for a “county jail” sentence, not a state prison sentence.

“Sheriff’s Work Programs”, where someone does various types of manual labor under the Sheriff’s Supervision, are common in many counties and many “first time” DUI offenders will qualify. Some counties also authorize “home detention” or “electronic monitoring” as an alternative to jail.

But each county is different, and more severe cases might not be considered eligible for jail alternatives. Sometimes, the District Attorney may add certain “enhancements” to a DUI charge based on certain facts, such as having a young child in the car at the time or for speeding and driving recklessly at the time of a DUI. Even on a “first time” DUI offense, these enhancements can greatly increase the amount of jail time that a defendant has to serve.

Depending on the length of a jail sentence, a person convicted of DUI as a first offense may be eligible for “half time” credit under California Penal Code Section 4019. This allows some people to complete a jail sentence by serving only “half” of the total days ordered.



Our Bay Area DUI lawyers are experienced in getting cases dismissed or earning you the best possible outcome, but it does take work. Being arrested for a DUI can be devastating. It can affect your job, professional licenses, immigration status, and can cause embarrassment. Our job is to get involved early on in the case, reduce that stress, and handle all of the steps of fighting your case. Whether that means going to trial or securing you the best possible plea deal, we do it all. 


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