Is an attempted DUI with a Felony DUI prior a Felony?

Most of the time, a DUI is a Misdemeanor. The most common exceptions to this are when the DUI involves bodily injury, and when the DUI is within 10 years of 3 other DUIs. These are Felony DUIs.

A less common Felony DUI occurs when someone is convicted of DUI after one (or more) Felony DUI within 10 years.

Here’s the legal framework:

Vehicle Code § 23550.5 provides that a person is guilty of a Felony if convicted of a violation of VC § 23152, and the offense occurred within 10 years of a Felony DUI.

Penal Code § 664 provides that a person who attempts to commit any Felony, but fails, shall be punished where no provision is made by law for the punishment of those attempts, as a Felony with for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. The attempted commission of a Misdemeanor is a Misdemeanor.

Attempted DUI is an offense pursuant to PC §§ 664 and 1159, which provide that the trier of fact may find the defendant guilty of an attempt to commit any offense charged or necessarily included within the charged offense.

The Question Presented:

A lady’s car was stuck in a ditch. There was some question as to who drove the car into the ditch - she said it was her cousin. But she was clearly found trying to (unsuccessfully) extricate her car from that very ditch. She was found guilty, not of the DUI for driving into the ditch, but of attempted DUI for trying to drive out of the ditch while drunk.

The lady had a prior Felony DUI. Is the attempted DUI a Felony or Misdemeanor?

One Appeals Court’s Answer

The Third District Court of Appeals decided in People v. Tanya Cummings C084505, filed today (3/3/2021) that it was a Felony. Even though VC § 23550.5 says nothing about attempted DUIs, the court finds the Legislature intended for an attempted DUI with a prior Felony DUI to be a Felony.