Is Fourth DUI a Felony in California?
Let me be direct: Yes, a fourth DUI within 10 years is automatically a felony in California under Vehicle Code § 23550. There's no prosecutorial discretion here—they cannot charge it as a misdemeanor even if they wanted to. This is different from your first three DUIs, which were misdemeanors.
However, there's an important distinction: While the conviction is an automatic felony, the judge has discretion on WHERE you serve your sentence—county jail (180 days to 1 year) or state prison (16 months to 3 years). With strong defense and mitigation, many fourth DUI defendants serve their time in county jail rather than state prison. This is a huge difference.
Vehicle Code § 23550: Fourth DUI (Felony)
California law is clear on fourth DUI penalties, but the judge has sentencing options:
- Fourth DUI within 10 years = automatic felony
- Sentencing options (judge's discretion):
- 180 days to 1 year in county jail, OR
- 16 months, 2 years, or 3 years in state prison
- Base fine: $390-$1,000 (with penalty assessments, total reaches $4,000-$5,000)
- 4-year driver's license revocation
- Permanent felony conviction on your record
- Designated as habitual traffic offender
- You'll be a felon for the rest of your life
Important: With strong mitigation and advocacy, many fourth DUI cases result in county jail sentences rather than state prison. This is a critical difference—county jail keeps you closer to home, has a maximum of 1 year (vs. 3 years in prison), and avoids the state prison system entirely.
What "Felony" Really Means for Your Life
This isn't just about the custody time—though that's serious enough. A felony conviction permanently changes your legal status:
- Voting rights: Lost while incarcerated and on parole (restored after completion)
- Gun rights: Permanent loss—never legally own or possess firearms again
- Employment: "Have you ever been convicted of a felony?" appears on most applications
- Housing: Many landlords refuse to rent to convicted felons
- Professional licenses: Most are permanently revoked (medical, legal, teaching, real estate)
- Immigration: Non-citizens face mandatory deportation for felony convictions
- Student loans: Federal financial aid eligibility can be affected
This is why fighting the felony charge—or at least fighting for the best possible outcome—matters so much.
What Happens After a Fourth DUI Arrest?
The process for a felony DUI is different from the misdemeanor DUIs you've experienced before:
Immediate Aftermath
- Arrest and booking: Taken to Nevada County Jail, booked on felony charges
- Bail: Much higher than misdemeanor DUI (often $25,000-$50,000 or more)
- License confiscation: Officer takes your license, issues temporary license
- Vehicle impound: Your car will be impounded for 30 days minimum
Felony Court Process
- Arraignment: First appearance where charges are read, you enter a plea, bail is set or reviewed
- Preliminary Hearing: Unlike misdemeanors, felonies require a "prelim" where a judge decides if there's enough evidence to proceed. This is your first opportunity to challenge the case.
- Arraignment in Superior Court: If bound over after prelim, you're arraigned again in the felony court
- Pretrial motions and negotiations: This is where we challenge prior convictions, suppress evidence, and negotiate with prosecutors
- Trial or plea: If we can't get charges reduced or dismissed, the case goes to jury trial or you accept a plea agreement
- Sentencing: Judge decides between county jail or state prison, and the term length
What Prior DUIs Count for Fourth DUI?
For you to be charged with fourth DUI, the prosecution must prove you have three prior DUI convictions within the past 10 years. Understanding exactly what counts—and what doesn't—is crucial to your defense.
Prior Convictions That Count
- Any DUI conviction under VC 23152(a) or (b) within 10 years
- Wet reckless (VC 23103.5) - reckless driving involving alcohol
- DUI causing injury (VC 23153), whether felony or misdemeanor
- Out-of-state DUI if substantially similar to California DUI law
- Out-of-county California DUI from anywhere in the state
What Does NOT Count
- Dry reckless (VC 23103) without alcohol allegation
- DUI arrests without conviction (dismissed, acquitted, reduced to non-DUI)
- Convictions outside the 10-year window (arrest date to arrest date)
- Exhibition of speed or other traffic offenses
- Prior DUI convictions that are constitutionally invalid
- Nevada DUI convictions under "Physical Control" - Nevada (our neighboring state) uses "actual physical control" allowing convictions without any driving. California REQUIRES proof of actual driving.
- Other out-of-state "Physical Control" convictions - Many states convict for being in "actual physical control" of a vehicle while intoxicated, even with no driving/movement
- Out-of-state DUI convictions with different elements than California DUI
The 10-Year Lookback Period
This is measured from arrest date to arrest date, not conviction dates. Here's why this matters:
- If your first DUI arrest was February 1, 2015 and your current arrest is February 2, 2025, the first DUI is outside the 10-year window (even by one day) and doesn't count
- Conviction dates are irrelevant—only arrest dates matter
- I obtain certified court records with exact arrest dates for all three priors
- Even one prior falling outside the window changes everything
Your Primary Defense: Challenging All Three Priors
Here's the mathematical reality that gives you hope:
- Three valid priors: Fourth DUI (felony, county jail/state prison)
- Two valid priors (one invalidated): Third DUI (misdemeanor, 120 days jail max)
- One valid prior (two invalidated): Second DUI (misdemeanor, 96 hours jail min)
- No valid priors (all three invalidated): First DUI (misdemeanor, typically no jail)
That's why my first action in every fourth DUI case is obtaining complete records from all three prior convictions and examining them with extreme care. If even ONE prior has legal defects, you avoid state prison.
How to Challenge Prior DUI Convictions
1. Constitutional Violations (Most Powerful)
If you didn't have an attorney for any prior DUI and didn't knowingly waive that right, that conviction is constitutionally invalid. The Sixth Amendment guarantees right to counsel in all criminal cases where jail is possible.
Questions I investigate:
- Did you represent yourself without understanding you could have a public defender?
- Were you told you had to plead guilty without an attorney because you couldn't afford one?
- Did anyone pressure you to waive your right to counsel?
- Was the waiver knowing, intelligent, and voluntary?
2. Outside the 10-Year Window
I order certified court records showing exact arrest dates for all three priors. If any arrest was more than 10 years before your current arrest, it cannot count—even if the conviction was within 10 years.
3. Not Actually DUI Priors
- Verify each prior is actually VC 23152 or 23103.5, not dry reckless (23103)
- Check if any were reduced to non-DUI offenses
- Confirm wet reckless notation on any 23103 convictions
4. Out-of-State Conviction Challenges - CRITICAL
Out-of-state DUIs must be "substantially similar" to California DUI to count as priors. This is one of the most technical but powerful defenses available.
"Driving" vs "Physical Control" - THE KEY DIFFERENCE:
California REQUIRES proof of actual "driving" (vehicle movement). Many states use "physical control" statutes where you can be convicted for just being in a parked car with keys accessible—no driving required. If your out-of-state conviction was under a "physical control" statute, it may NOT count as a California DUI prior because the elements are fundamentally different.
Other element differences I examine:
- BAC standards at the time (.10% vs .08%)
- Definitions of "impairment" or "under the influence"
- Required mental state or intent
- What substances are covered
- Procedural protections in that jurisdiction
5. Invalid Plea Agreements
- Were you properly advised of consequences?
- Was the plea coerced or involuntary?
- Did the court have jurisdiction?
- Was there a factual basis for the plea?
The bottom line: Challenging priors in fourth DUI cases requires extensive legal research, obtaining old court files from multiple jurisdictions, and filing complex motions. But when it works, you avoid state prison and a felony record. This is exactly what I've been doing for 25+ years.
IMPORTANT: Nevada Priors Are Common & Often Invalid
Many Nevada County residents—especially in Truckee and Lake Tahoe areas—have prior DUI convictions from Nevada (Reno, Tahoe, etc.). This is critically important:
Nevada uses "actual physical control" in its DUI statute (NRS 484C.110), which does NOT require proof of driving. You can be convicted in Nevada for sitting in a parked car with keys accessible, engine off, no vehicle movement whatsoever. California VC 23152 requires proof of actual driving. These are fundamentally different elements.
I have successfully challenged and beaten numerous Nevada DUI priors on exactly this basis. If you have a Nevada DUI in your record—even if it was called "DUI" there—it may NOT count as a California DUI prior because the elements don't match.
Real example: Someone sleeps in their car in a Reno casino parking lot to avoid driving drunk, keys in ignition to run heat. Nevada convicts them of DUI under "physical control" even though the car never moved. California would NOT convict on these facts because there was no driving. Therefore, that Nevada conviction should NOT count as a California DUI prior.
What this means for you: If one of your three priors is from Nevada, eliminating it could reduce your fourth DUI (felony, county jail/state prison) to a third DUI (misdemeanor, 120 days maximum). That's the difference between a felony record and a misdemeanor, between potential state prison and county jail maximum.
If ANY of your prior DUI convictions are from Nevada or any other state, tell me immediately during our consultation. This could change everything.
Do You Really Need an Attorney for Fourth DUI?
This might seem like a self-serving question coming from a lawyer, but let me be completely honest with you about what you're facing without representation:
What Happens Without a Private Attorney
- Public defender: Yes, you're entitled to one. But public defenders handle 100+ cases simultaneously. They're dedicated professionals, but they simply don't have time to do the intensive prior-conviction research that can save you from a felony conviction or state prison.
- Likely outcome: Standard plea deal—probably state prison (mid-term 2 years) or county jail (1 year maximum), 4-year license revocation, felony record. This is what happens in most cases without aggressive private defense.
- No prior challenges: Without someone spending 20-40 hours researching your three prior convictions, those priors won't be challenged. Public defenders rarely have time for this level of investigation.
- State prison risk: Without mitigation evidence and aggressive advocacy, you risk state prison instead of county jail, or high-term sentencing instead of low-term.
What a Private Attorney Can Do
- Intensive prior investigation: Obtain all records from three prior DUIs, identify any legal defects
- Challenge invalid priors: File motions to strike prior convictions, potentially reducing felony to misdemeanor
- Fight for county jail: Present strong mitigation to avoid state prison, argue for local custody
- Negotiate with prosecutors: Prosecutors take private attorneys seriously and negotiate more readily
- Fight for minimum term: County jail minimum (180 days) instead of maximum, or low-term state prison (16 months) if prison is unavoidable
- Trial preparation: Full investigation, expert witnesses, aggressive defense if case goes to trial
- Undivided attention: Your case gets the time and resources it deserves
Look, I understand if hiring a private attorney feels expensive. But consider: The difference between county jail and state prison. The difference between 6 months and 3 years. The difference between a felony record and misdemeanor (if we invalidate a prior) is... everything. Your future employment, housing, rights—all of it depends on how this case is handled.
If Convicted: County Jail vs. State Prison Sentencing
If we can't get the felony charge reduced or dismissed, the next critical fight is WHERE you serve your sentence. The judge has two options:
Option 1: County Jail
- Minimum: 180 days (6 months)
- Maximum: 1 year
- Location: Nevada County Jail (local, family can visit easily)
- Programs: Limited but some work release and treatment options
- After release: Probation (not parole)
Option 2: State Prison
- Low term: 16 months
- Mid term: 2 years (presumptive)
- High term: 3 years
- Location: California state prison facility (could be anywhere in state)
- Programs: More extensive education, treatment, vocational programs
- After release: Parole supervision for years
Fighting for County Jail Instead of State Prison
This is where an experienced attorney makes a huge difference. We fight for county jail by presenting:
- No prior violence: DUI-only record shows you're not dangerous
- Employment history: Stable work shows you're a contributing member of society
- Family support: Letters from family, dependents who need you
- Treatment commitment: Proof of enrollment in alcohol treatment, AA attendance
- Community ties: Long-term Nevada City resident, local connections
- Health issues: Medical conditions better managed in county jail
- Remorse and accountability: Taking responsibility, making amends
Many judges will sentence fourth DUI defendants to county jail rather than state prison when strong mitigation is presented. This is especially true for defendants with no violence history, strong family ties, and demonstrated commitment to treatment.
State Prison vs. County Jail Comparison
| Aspect | County Jail | State Prison |
|---|---|---|
| Location | Nevada County Jail (local) | California state prison facility (anywhere in CA) |
| Sentence Length | 180 days to 1 year maximum | 16 months to 3 years minimum |
| Population | Misdemeanor/short-term felons | Felony offenders, long-term |
| Security Level | Lower security | Higher security, more restrictive |
| After Release | Probation | Parole supervision for years |
Immigration Consequences
If you're not a U.S. citizen, a fourth DUI felony conviction has devastating immigration consequences:
Mandatory Deportation for Felony Convictions
Under federal immigration law, felony DUI convictions can trigger:
- Deportation proceedings: ICE can place a detainer and initiate removal
- Inadmissibility: Cannot return to U.S. if you leave
- Ineligibility for citizenship: Felony conviction bars naturalization
- Ineligibility for green card renewal: Can lose permanent resident status
This is NOT optional—immigration authorities WILL find out about your felony conviction. If you're not a citizen, you MUST have an attorney who understands immigration consequences and works with immigration counsel to minimize these impacts.
Common Questions About Fourth DUI
Is a fourth DUI automatically a felony in California?
Yes. A fourth DUI within 10 years is automatically charged as a felony in California under Vehicle Code 23550. There is no discretion—prosecutors cannot charge it as a misdemeanor. However, the judge has discretion on sentencing: 180 days to 1 year in county jail, OR 16 months to 3 years in state prison. With strong mitigation, many defendants serve county jail rather than state prison. Additional penalties include $4,000-$5,000 total fines, 4-year license revocation, designation as habitual traffic offender, and a permanent felony conviction record.
Can I challenge prior DUI convictions to avoid felony charges?
Yes, and this is your primary defense strategy. If any of your three prior DUI convictions has legal defects—no attorney representation, outside 10-year window, actually dry reckless not wet reckless, constitutional violations, or procedural defects—it may not count as a prior. Successfully invalidating one prior reduces your fourth DUI to a third (misdemeanor with maximum 120 days jail vs felony). Invalidating two or three priors can reduce it further.
What happens after a fourth DUI conviction in California?
After fourth DUI conviction, you serve either 180 days to 1 year in county jail OR 16 months to 3 years in state prison, depending on mitigation. Upon release: 4-year license revocation, permanent felony record affecting employment and housing, loss of gun rights (restored after sentence completion), mandatory ignition interlock device for any future driving, habitual traffic offender designation, difficulty finding employment with felony record, and potential deportation for non-citizens.
Do I need an attorney for fourth DUI felony charges?
Absolutely. A fourth DUI is an automatic felony with significant custody time—this is not something to handle alone. An experienced private attorney can challenge all three prior convictions potentially reducing felony to misdemeanor, negotiate with prosecutors for reduced charges if weaknesses exist, fight for county jail instead of state prison, present strong mitigation for minimum sentencing, and protect your rights throughout the felony process. The difference between county jail and state prison, or between 6 months and 3 years, is enormous.
Can Nevada DUI convictions count as California priors?
Not always. Nevada uses "actual physical control" in its DUI statute (NRS 484C.110), which does NOT require proof of driving. California requires proof of actual driving. If your Nevada conviction was based on "physical control" without any vehicle movement, it should NOT count as a California prior because the elements are fundamentally different. I have successfully challenged and beaten numerous Nevada DUI priors on this basis.
Call Now—Before It's Too Late
If you've been arrested for a fourth DUI in Nevada City, you're facing the most serious situation of your life. This is a felony. This could be state prison. This is a permanent criminal record that will follow you forever.
But—and this is important—having an experienced attorney can still make an enormous difference. The difference between 6 months and 3 years. The difference between county jail and state prison. The difference between felony and misdemeanor (if we can invalidate a prior). The difference between giving up and fighting for your future.
When you call me at 530-265-0186, here's what happens:
- Immediate consultation: We discuss your case, your three priors, and realistic options
- No judgment: After 25+ years, I've seen it all. My job is to help, not lecture
- Honest assessment: I'll tell you what's possible and what's not
- Prior investigation begins: I immediately start obtaining records from all three prior DUIs
- Nevada priors check: If any prior is from Nevada, we analyze whether it's valid
- DMV hearing: I'll request your hearing to fight the 4-year revocation
- Strategy development: We build a comprehensive defense focused on challenging priors and minimizing consequences
I've defended many people facing fourth DUI charges. Some had priors thrown out and avoided felony convictions entirely. Others got county jail instead of state prison. Some negotiated better outcomes than they thought possible.
This is the fight of your life. Don't go through it alone. Call 530-265-0186 now.