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DUI-Related Felony Offenses Served in State Prison
While Assembly Bill (AB) 109 did “realign” certain non-serious, non-violent, non-sex offender felony sentences to be served in county jail, rather than state prison, many felony convictions remain punishable by state prison.
Within DUI-related offenses (including charges that may be plea bargained to from a DUI offense), this is particularly true, but at times it can be counter-intuitive. Certain sentences that one may believe are particularly serious in nature are now to be served in county jail, while others with convictions that may not seem as significant remain sentenced to state prison.
To help our readers get a better idea of which felony DUI-related offenses, if one is so convicted, are sent to state prison we provide the following list of eleven common convictions in such cases, in no particular order. Those convicted of these offenses must serve their time in state prison. The convictions are for violation of:
- Vehicle Code § 23153 (DUI causing injury);
- Vehicle Code § 23550.5 (DUI with a designated prior felony DUI (unless probation is granted, which is an option for the judge. People v. Guillen (2013) 212 Cal. App. 4th 992);
- Penal Code § 191.5(a) (gross vehicular manslaughter while intoxicated);
- Penal Code § 192(c)(1) (gross vehicular manslaughter);
- Penal Code § 192.5(a) (gross vehicular manslaughter with vessel (boat or ship) while intoxicated);
- Penal Code § 192.5(c) (gross vehicular manslaughter with vessel);
- Vehicle Code § 2800.2 (reckless evading a police officer);
- Vehicle Code § 2800.3 (evading a police officer causing death or serious bodily injury);
- Vehicle Code § 20001 (hit and run driving causing death or injury);
- Vehicle Code § 23109(f)(3) (causing serious bodily injury during speed contest with prior); and
- Vehicle Code § 23110(b) (throwing object at motor vehicle with intent to cause great bodily injury (GBI).
In addition, the reader should understand that if the defendant has a prior conviction for a serious or violent felony as listed for California’s Three Strike Law or the defendant is a registered sex offender under Penal Code § 290, that person must serve his felony sentence in state prison, not county jail.
We like to remind clients that if the crime alleged is a wobbler, but is charged as a felony, the judge has the discretion to reduce the offense level to a misdemeanor under Penal Code § 17(b) at any time up to and including at sentencing.
The judge can also do this by placing defendant on summary probation, however, this is extremely rare. See People v. Willis (2013) 222 Cal. App. 4th 141 and People v. Glee (2000) 82 Cal. App. 4th 99.
The judge can also order defendant to a “90-Day Diagnostic” under Penal Code § 1203.03, which is at Patton State Hospital (located in the City of San Bernardino) for defendants in Los Angeles, San Bernadino and Riverside Counties. Defendants in Northern California typically are assigned to Vacaville Medical Facility. The hospital will evaluate defendant to determine if he or she would benefit from state prison or some other program. The judge will then read the report and decide how to sentence defendant. Our office has had several defendants, commonly with mental or psychological issues, undergo this process.
The judge also has the option of allowing victim statements before sentencing. It merits mention here that defendant will often encourage counsel to cross-examine the victim, however, defendant has no right to cross examine a victim during a victim impact statement. People v. Birmingham (1990) 217 Cal. App. 3d 180. On the other hand, it is reassuring to know a victim has no standing to assert a claim that a sentence was illegally imposed. Dix v. Superior Court (1991) 53 Cal. 3d 442 (instead, the People must make this claim on behalf of the victim).
Lastly, we like to tell the client and/or the client’s family that Penal Code § 1170(d) does permit the judge to recall a prison sentence within 120 days of defendant’s commitment.
