Key Factors Between a Filing a Misdemeanor or Felony DUI Case in Los Angeles County

This is a big question because obviously, nobody wants to be charged with a felony DUI.  You lose a lot of rights, you’re looking at jail or prison time.  So, a lot of people are asking me when they’re arrested for a DUI whether they’re going to be charged as a felony or a misdemeanor.  There’s a number of different ways that give justification to the prosecutors in Los Angeles County to file a case as a felony.

DUI With Great Bodily Injury

One is if you seriously hurt somebody or if you cause great bodily injury to the DUI, you can bet your bottom dollar they’re going to file that case as a felony in LA County.

You’re going to be looking at custody time and a whole host of other issues related to your driver’s license, your criminal record, and your whole life will be on the line if you’re charged with a felony DUI because you seriously hurt another individual.

Fourth Arrest for DUI

Another way they can justify filing a case as a felony when it relates to a DUI is if it’s your fourth-time DUI.  That automatically gives the prosecutors the right to file a case as a felony DUI and again, you will be subject to prison time.  Most felony DUI’s that I see getting filed that are fourth-time DUI’s are typically looking at a minimum of 16 months in prison.

They could even get more time depending on what the injuries were to the other party.  There’s a three-year enhancement if you cause great bodily injury.  That makes the case a strike.

You won’t be able to vote.  You won’t be able to own, use or possess a gun or bullets, and again, you’d be looking at a significant amount of time in custody and loss of your driver’s license.

Prior Felony DUI Conviction

The other way I’ve seen them file a case as a felony is if you have a prior conviction for a felony DUI and you pick up any new DUI, even if it might have normally been a misdemeanor circumstance, they can file that case as a felony as well because you have that prior felony conviction in Los Angeles County or elsewhere related to a DUI matter.

So, that’s one of the biggest factors though, is injury.  If there’s a bad injury, you can bet your bottom dollar the prosecutors are going to be looking to file the case as a felony in Los Angeles county.

As far as the injury goes, this is not an entirely crystal clear area of the law.  In other words, sometimes people are claiming they have a soft tissue issue when the reality is, they don’t really have that bad of an injury and in that circumstance, a lot of times we can get the case filed as a misdemeanor.

Misdemeanor vs. Felony DUI

It’s a huge difference when a case if filed as a misdemeanor versus a felony.  You’re not looking at as much time in jail or prison.  You’re not looking at a lot of ramifications that come along with the felony conviction.

Nobody wants a felony conviction.  It will affect your rights.  It will affect your freedom.  It will affect your job.  It will affect your future and a whole host of other things.

So, these are one of the biggest things that I battle in these DUI cases is trying to get it down to a misdemeanor, if my client is good for a DUI but really shouldn’t be charged with a felony, and all of these cases, whether you’re deciding whether a case is a felony or misdemeanor, kind of center around a number of different factors and they’re all going to center around the facts and circumstances of your particular case.

Experienced DUI Defense Lawyer

That’s why it’s so crucial to hire someone like me who has been doing this for 25 years, knows how to deal with these DUI cases, knows what factors will influence a judge and prosecutor, knows what type of mitigating circumstances we can bring up to try and avoid that felony conviction for  DUI or at least set things up so you can later get the case reduced down to a misdemeanor, so you don’t have this felony haunting you for the rest of your life.

So, if you’re charged or booked for a felony DUI or even a misdemeanor DUI and you’re concerned when you get to court, they’re going to file it as a felony, pick up the phone, call me now.  We will start the process of dealing with your DUI matter in the quickest, easiest way possible and getting you the best possible result.

Hedding Law Firm
16000 Ventura Blvd #1208
Encino, CA 91436

Related Resources:
California DUI: What are the Penalties?
First-Offense DUI in California

Related Articles

Can Police Force a Blood Draw in a Los Angeles DUI Case?

Believe it or not, under the right circumstances, the police are permitted to do a forced blood draw when it comes to a DUI case.  Usually where I see them being permitted to do it is when you’ve been involved in some sort of an accident.  Somehow, that greenlights them to be able to force blood.  Then the next question becomes, if they force my blood and they have the blood result, can they get me for a refusal because they have the blood result?

Refusing DUI Blood or Breath Tests

The reality is, if the police ask you to take your blood or breath related to a DUI investigation you have to cooperate with them.  If you don’t cooperate with them and you say no, and then they’re forced to take your blood, technically that’s a refusal and that’s bad, because you then get a refusal on your record, you lose your license for a year with no restriction.  Interestingly enough, I’ve seen these forced blood draw cases somehow insure to the benefit of a defendant in a DUI case in Los Angele because a lot of times the prosecutors do not file it as a refusal, and you can try to argue with the DMV as well that it’s not a refusal because they actually have the result.

Sometimes they’re claiming the person refused and the person really didn’t refuse.  That’s another issue that has to be dealt with.  But the answer to the lead tag question here as to whether they can force your blood in a DUI case is, absolutely yes.  I just don’t see them doing it and I don’t think they have justification to do it in every single DUI case.  See Related: What Happens If You Refuse To Take A Drug Test?

I think it’s typically going to be one where there’s an accident, maybe people were hurt — and then the police, by law, are justified in forcing your blood.

Providing a Breath Sample

But they can typically only do that if you don’t cooperate with them.  In other words, if you cooperate with them and are willing to give a breath sample, that’s just as good as a blood sample.  That would satisfy the law.  That would satisfy your requirements to cooperate with the police related to your DUI, so I think it would be impermissible in that circumstance to force your blood when you’re willing to give them a breath test.

All of these circumstances spin on the facts of your case.  What I have you do is come in the office.  We go over everything under the cloak of the attorney/client privilege and then we’ll start talking about the plan moving forward.

Reviewing Your DUI Case

What are we going to do on this forced blood draw case?  Do we have a defense?  Was the blood tainted in any way?  Can we hire an expert that might be able to help us in the case or is this one we’re going to have to negotiate and resolve for the best possible resolution?  These are all things we talk about.

Obviously, I’m going to put my twenty-five years of experience to work for you so you make the best decision if the police have forced your blood.

Obviously, the next issue we’re looking at is, if they forced your blood, is your blood alcohol level a .08 or greater, because if it’s not and it’s lower, then you’ve got a good argument that you shouldn’t be a DUI case.

So, this 23152(b) Vehicle Code Section really has to do if they force your blood and you’re over a .08 or greater, then they can charge you with a DUI because it’s presumed that you can’t safely operate a motor vehicle.

If, on the other hand in LA, they force your blood and get a result, and it’s under a .08, then the only Section they’re really going to be able to go under is 23152(a) which says you’re driving a motor vehicle and you have alcohol in your system and you can’t safely operate that motor vehicle, and that’s when they’re going to start looking at other factors besides what your blood alcohol level was — how you were driving, whether you got into an accident, how you performed on the subjective field sobriety tests and a whole host of other factors like your breath, your eyes — all sorts of things they can look at when they’re trying to determine whether you’re a DUI related to a forced blood draw in Los Angeles County.

Hedding Law Firm
16000 Ventura Blvd #1208
Encino, CA 91436

Related Articles

Will You Get Jail Time For Your DUI In Los Angeles?

This is a big question on people’s minds because obviously, nobody wants to go to jail.  It’s very confining and very stressful.  There are dangerous criminals in jail and it’s an unsafe place.  So, this is one of the biggest fears people have when they are arrested for a DUI in Los Angeles — whether or not they’re going to go to jail.  Believe it or not, whether you go to jail depends on a bunch of different factors.

DUI Courthouse and Prior Criminal Record

One is the courthouse where your case is pending.  That’s one of the first things you want to talk to your attorney about when you sit down with them — is this the type of courthouse that’s going to try to throw me in jail?  Are these the judges that do that type of thing on a first-time DUI?  Another factor is, obviously if you have any prior criminal record.

If you have prior driving-related offenses and/or prior DUI convictions on your record, then you can probably expect that the prosecutors are going to try to put you in jail in Los Angeles and you’re going to want to use your DUI defense attorney to pull out all the stops to prevent that from happening.

Public Safety Issues and Conduct Toward Police

Another thing they’re going to look at is the DUI itself.  How dangerous were you to the public?  That’s one of the big things the prosecutors and judges look at when deciding whether to throw somebody in jail to teach them a lesson for a DUI.  Were you swerving all over the road?  Did you get in an accident?  Were you going very fast on the road or on the freeway?

They’re going to look at how you performed on the field sobriety tests.  The prosecutors are going to look at how you acted with the police.  Sometimes the police put a lot of bad stuff in their police report in an effort to try to make you look bad because you were belligerent with them, didn’t cooperate with them.

I’ve had clients spit on the police, curse them out, threaten the police.  These are obviously all things that would make it much more likely that you’re going to end up with jail time when it comes to a DUI.

First Time DUI Offenders Don’t Typically Serve Jail Time

All that being said, all first-time DUI’s in Los Angeles, most of the time it’s a fair statement — and I’ve been doing this for twenty-five years, so I should know — it’s a fair statement that you are not going to get any jail time under that circumstance and you will be able to avoid having your freedom taken away.

So, that’s good news for those people who are worried about going to jail, but the best way to assess whether you’re going to go to jail or not, is to go and sit down with a DUI defense attorney who is local and understands the jurisdiction and the courthouse where your case is pending and then that attorney will be able to give you a good feel about your chances of going to jail in Los Angeles for a DUI; what can be done now before you go to court to make it less likely that you’re going to go to jail, and to be able to evaluate your case, your circumstances to see whether your case is the type of case where jail time will be sought by the prosecutors and judges.

Jail Alternatives

I get cases all the time where it is the type of case where the judge is going to try to give jail time, and we try to come up with not only alternative plans for jail, but also ways to show the prosecutor and judge that your actions were an aberration.  They’re likely to never happen again.  They don’t need to put you in jail to teach you a lesson.  This is what we have to show them.

We have to realize when we’re concerned about jail in a DUI in Los Angeles, that the prosecutors and judges are worried themselves to a degree, and if they give somebody jail time or don’t give somebody jail time, how that will play out in the future.  Will the person do something else more dangerous and put more lives at risk if they don’t punish them with jail.

So, if we can show them that they don’t need to give you jail time we’re in a very strong position to get you the result that you want and need. Contact our Los Angeles DUI attorneys to review your case and legal options.

Hedding Law Firm
Los Angeles DUI Lawyers
633 West Fifth Street
Los Angeles, CA 90071

Related Resources:
DUI Punishments and Penalties

Related Articles

How Do You Win Your DUI In Los Angeles?

Winning a DUI typically would mean that you are found completely not guilty of the charge or that your attorney convinces the prosecutor either to not file the case or to dismiss a case that’s already been filed.  As you might guess, this is not an easy thing to accomplish, but it has been done and will continue to be done time and time again.  What it typically boils down to is some sort of an angle to upend the prosecutor’s case.  In other words, when it comes to a DUI in Los Angeles, the prosecutors — who are typically the Los Angeles City Attorneys, but sometimes the District Attorneys — need to prove certain things in order to obtain a conviction for a DUI.

Proving The Elements Of The DUI Crime

Once a DUI defense attorney sees that the prosecutors are going to be able to prove the elements they need to prove for the DUI, at that point, they’re going to try to negotiate with them and get the best possible resolution for their client, and then they’ll talk to their client about it and decide how to best handle the case.

If on the other hand, there appears to be a problem with their ability to prove the case, then the defense attorney will obviously attempt to use that to get a dismissal or some lesser charge, depending on the circumstances.  Sometimes it looks like there might be a problem, but it’s not 100% clear that there is a problem.  For example, sometimes they stop people and give a certain reason, and then the client says that’s not true.  So, now the question becomes, if they’re just pulling somebody over for no reason — like let’s say for example — they’re waiting outside a club or a bar at 2:00 a.m. when they close, they’re just getting people when they come out of the bar.  They’re allowed to wait outside the bar.  They’re just not allowed to pull people over just because they came out of the bar.  They’re going to have to have some reason that criminal activity is afoot.

Was The DUI Traffic Stop Unlawful?

If the person is staggering drunk out of the bar and they get in a car and drive away, that obviously would be a good reason to pull them over to protect the public and safety.  So, in that scenario where they’re pulling somebody over illegally, but we have to prove that, we’re going to try to get some things to prove it.  For example, if the vehicle that the police are driving is equipped with video, the video may capture what the client is saying which is that they didn’t do anything wrong.  All they did was come out of a bar and get pulled over.  So, we’ll try to get that video to prove the defense’s case.  Unfortunately, the police know that a lot of times the defense will try to get video, so they don’t turn those videos on until their car or motorcycle is in a position where they cannot capture the illegal pull over.  In other words, if they’re just turning it on after the car has been pulled over, then obviously, we’re not going to be able to capture the driving immediately before the pull over.  Like when they claim that you didn’t change lanes or you were weaving or swerving, we would love to see that video to see if it’s true, because if it’s not true we can point out that they didn’t pull this person over because they were weaving.  Look at their car.  It’s driving fine in the middle of the lane.

Were You Driving The Vehicle When Observed By Police?

So, that’s one area where you can win a case — which is if they illegally stop you or pull you over.  Another area that I see come up a lot in DUI cases in Los Angeles that’s a way to win the DUI case is, the person wasn’t driving when the police came upon them.  That happens all the time.  Somebody’s car breaks down on the freeway.  They get into some sort of an accident and when the police come along the person’s outside their car, so then there’s two issues there that can win the case.  Issue number one is, can they prove that you were even driving?  Of course, again, they know this is a potential problem for them, so they’re going to start asking you, or your passenger if you have one or other witnesses in the area, who was driving that car?  Also, they’re going to ask you point blank if you drove that car and if you say yeah, I drove the car, then they’ve got that box checked as far as not being able to lose the case.

When Were You Driving The Car?

The next question is going to be as far as driving goes in DUI’s in Los Angeles and trying to get a win from that angle is, when were you driving the car?  That’s important because at some point — unless you refuse to take the test which makes it a lot easier for them — they’re going to get your blood or breath and have a reading which is likely going to be a .08 or greater.  Then the question becomes, if you were a .08 or greater at one time, what were you at the time of driving.  So, their expert is going to have to try to extrapolate backwards to say, if they were a .09 at this time, then they would have been a .08 at this time and they’re going to have to explain their reasoning.  But if they don’t have that piece of the formula to say when you were driving, then that’s another angle to win your DUI case.

Proving You Could Not Safely Operate a Motor Vehicle

I would say the final angle — and listen, we could come up with all kinds of different scenarios — but just the final general angle when it comes to winning a DUI case is, the key thing that the prosecutors have to prove is that you could not safely operate a motor vehicle.  So, if you can show that you could safely operate a motor vehicle at the time of driving, then you can win your DUI case.

So, how do they prove that you couldn’t safely operate a motor vehicle?  They’re going to prove it by the police’s observations, but the field sobriety tests and by how you were driving and also what your blood alcohol level was.  So, if your blood alcohol level was a .08, it’s presumed that you could not safely operate a motor vehicle, so you have to try to rebut that presumption.  A perfect example was, you blew a .08, you get arrested for a DUI, and then at the trial you call an expert that says that the machine they used to test your breath has a .02 error rate so there’s a chance you could have been a .06 which would be below the legal limit.

But they also have California Vehicle Code Section 23152(a) which says you had alcohol in your system and you couldn’t safely operate a motor vehicle, so the prosecutors can try to rely on that to get you for the DUI.  Under that circumstance, they’re going to be looking at how you were driving, were you swerving, did you get in an accident.  They’re also going to be looking at how you did on those field sobriety tests.  Did you fail them?  How were you walking when you got out of your car?  Did they observe erratic, crazy, unsafe driving?  These are going to be the issues that are considered when it comes to determining whether you could safely operate a motor vehicle and whether you can win your DUI in LA.

Contact Our Los Angeles DUI Lawyers

If you want more information about your specific case — your specific DUI in Los Angeles — call my office.  Set up a free face to face consultation with me and I will put my twenty-five years of experience to work for you.

Hedding Law Firm – Los Angeles DUI Defense Lawyers
633 West Fifth Street Los Angeles, CA 90071

Related Articles

Do You Need An Attorney If Arrested For A DUI In Los Angeles?

I’m always surprised that people don’t realize that a DUI is a criminal offense and they could go to jail for it.  Obviously, the answer is yes you need an attorney unless you just want to throw yourself on the mercy of the court and hope you don’t go to jail, lose your driver’s license, put on probation and host of other things that are potentially possible.

I guess the question in most people’s minds is, why is a DUI criminal?  I don’t get it.  Well, because if you’re out there driving on the road and you drank alcohol and have the potential to hurt somebody, obviously they’re going to take that very seriously.

Now they’re even filing murder charges when somebody kills somebody related to a DUI because in society now, the prosecutors, judges and police figure that everybody now knows that if you drink and drive you could kill somebody.  There’s people being killed all over the road, especially in Los Angeles, which is such a huge metropolis with all of these drivers out there.

Helping You Navigate The DUI Legal Process

So, the bottom line is, you absolutely need an attorney.  There’s so many different areas when it comes to a DUI where an attorney can be useful:  dealing with the DMV so they don’t take your driver’s license away — and if they are going to take your driver’s license away, trying to get the driver’s license back as quick as possible, what you have to do in order to do that to make sure that you cover yourself.

You’re also going to be sent into a Los Angeles County criminal court where you can be sent to jail, where there’s judges and prosecutors.  Unless you have experience and training related to DUI’s, obviously you want an attorney to help you.

Retaining A DUI Lawyer Is Crucial

Hiring your own attorney, in my opinion, is crucial because you’re going to be able to talk to that attorney face to face before the court date, give them all the details — not only about your case, the arrest and what happened — but about you as a person, so they go in there armed with information that can help you; armed with the ability to be able to try to convince the prosecutors that you don’t deserve the worse punishment.  You don’t deserve to go to jail.  You don’t deserve a lot of the bad things that can come related to a DUI.

So, when you’re looking at a criminal conviction, jail time and the loss of your license and a host of other issues, of course you need an attorney to represent you and you need somebody that you hired that knows your story and can go in there and work for you and try to get you a result that does damage control and takes into account your life and all the important things you need to do related to having your vehicle, and not putting a mark on your life that will affect your future, your career and a lot of different areas of your life if you end up with a criminal conviction — especially if you can’t get the criminal conviction off.

Contact a Los Angeles DUI Lawyer at Our Law Firm

So, depending on what happens with your case — not matter what it is — you need an attorney.  As far as what the attorney can do to help you, that’s going to be determined by exactly what you did, what you’re charged with and what potential defenses are available to you and what damage control the attorney is able to do in resolving your matter. Contact us to review the details of your case.

Hedding Law Firm
Los Angeles DUI Defense Attorneys
633 West Fifth Street
Los Angeles, CA 90071

Related Resources:
Immediate Driver License Suspension or Revocation 

Related Articles