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Charged for misdemeanor DUI but anticipate it being changed to felony DUI at arraignment

Van Nuys, CA |

I was arrested for misdemeanor DUI but have a felony DUI on my record from 4 years ago. I anticipate the courts bumping this misdemeanor to a felony DUI because of the prior felony DUI...my question is once it is increased to felony will I 100% be taken back into custody/need to bail out? Is it possible for this to be charged as a felony and me to still be out on my own recognizance? Or is there always a new (high) bail amount set when a charge is increased to a felony.

Your input is very much appreciated!

Attorney Answers 9

Posted

Always best to be prepared. In that kind of circumstance, I contact a bondsman just in case. You should find a great DUI attorney ASAP and ask him/her to book a DMV PAS hearing quickly. It's fairly easy for an attorney to subpoena the records needed to evaluate a case. The idea is to know as much about your chances of beating the case as you can before the arraignment. If the facts are bad, be ready to resolve the case quickly. There was a Public Defender I met more than 20 years ago that said "if you catch the DA sleeping, throw him a pillow." I've never forgotten it. There is no substitute for being prepared before you ever get to court. If the case is mistakenly filed as a misdemeanor be in a position to resolve it quickly. If the case is upgraded, you will likely be subjected to an increased bail but you will already have a bondsman in your corner to help you too. Check online with the California DUI Lawyers Association for an attorney in your immediate area. It's a grreat place to shop for a DUI attorney.

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Asker

Posted

Thank you so much for the reply! I am definitely going to retain an attorney. So if the case is upgraded...is it 100% that I will get increased bail? Is that set in stone, or is ever possible for the charge to be upgraded and still be out on OR? (I will contact a bondsman either way...just want a full understanding of the potential) Thanks again!

Denis Hurley White Jr

Denis Hurley White Jr

Posted

Nothing is ever set in stone. A judge has the option of continuing to leave you out of custody on your promiser to appear but that has become a rarity these days. The court will have a standard bail amount for a Felony DUI in the county where you have to appear. Check the court's website and see if they list it there. If you are going to make calls to local attorneys they should be able to give you specific information about the judges and the tolerances in that county.

Asker

Posted

I found out that the standard bail amount is 100K for felony DUI. I really hope I can get the lowered...

Posted

Every court is different but most will go easier on the bail if at arraignment you are living in a residential treatment program and have a scram alcohol monitor decorating your ankle. Get both going ASAP. Have someone from the scram program show up to court with your attorney.

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Posted

Not always and this 2nd DUI is considered a wobbler which means it can
still be a misdemeanor

Regards,

Elliot Zarabi, Esq.

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Asker

Posted

Thanks for the reply. I am crossing my fingers that it remains the original charge :)

Posted

Mr. White has given you good advice. This may be filed as misdemeanor as it is a second DUI. You do not indicate if anyone was injured. I would have an attorney at the arraignment and I would have a bond person ready should the need for one arise. When I work with DUI clients I always have a plan of action of items I want them to be doing before the court date. The advantage to hiring counsel is that they may appear at the arraignment without you present.

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Asker

Posted

No one was injured and no accident etc. My worry is that the felony DUI was from 2008...so that is only 4 years ago. That is why I think it will be increased to a felony. I did blood...and I anticipate my BAC being low b/c I hadn't had any drink for about 5 hours from when I was pulled over...and about 6-7 hours from when they drew blood. And between 6-9pm I had 3-4 drinks. Have you ever seen a case where the charge is increased to a felony but the defendant still remains out on OR? Apparently standard bail for felony is 100k, but that is for a person arrested before appearing in court. Hopefully mine would be less if it comes down to this. Your input is veryy helpful and I appreciate you taking the time to reply. Thank you

Asker

Posted

**I was arrested for the felony DUI 10.16.2007....this last DUI arrest date was 07.27.12...so about 2.5 months under 5 years....assuming the time frame is calculated by arrest date.

Posted

I would want.to know why the last dui was a felony and were you still on probation out parole. This may not turn into a felony

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Posted

My last DUI was a felony b/c I had 4 within 10 years. I was discharged from parole January 2010. No one was injured and no accident etc. My worry is that I was arrested for the felony DUI 10.16.2007....this last DUI arrest date was 07.27.12...so about 2.5 months under 5 years....assuming the time frame is calculated by arrest date. That is why I think it will be increased to a felony, because it is within 5 years. I did blood...and I anticipate my BAC being low b/c I hadn't had any drinks for about 5 hours from when I was pulled over...and about 6-7 hours from when they drew blood. And between 6-9pm I had 3-4 drinks. Thank you very much for your time.

Asker

Posted

...my BAC on the felony DUI was .09, just an FYI I know that may not matter :)

F. "Bill" William Powers

F. "Bill" William Powers

Posted

Thanks for your time and consideration in providing an answer. AVVO.com is an invaluable resource nationwide to people seeking sound legal advice. If ever we may be of assistance in North Carolina, please do not hesitate in calling. Bill Powers 704-342-4357 bill@powmac.com www.powmac.com

Posted

If the prior was actually "punished as a felony," which is tricky, this can be a felony, but bail is supposed to be based on flight risk - the state "safety to the community" crap is not an 8th Amendment standard, so if you have a competent and knowldgebale attorney, your bail status should not be altered by the possibly elevated standard, because if you show up, they would have trouble illustrating that you are a flight risk. Just get a competent and aggressive attorney and you'll be okay.

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Asker

Posted

Thank you so much for the reply. The last DUI was punished as a felony b/c it was 4 within a 10 year time frame. I do not plan on being present at arraignment because I do not have to be there since it is currently charged as misdemeanor. I am truly just embarrassed and want to avoid being in the court room as much as possible. I am going to retain an attorney to be there for me though. Do you think I should go just so that they see I am no flight risk?

Michael James Kennedy

Michael James Kennedy

Posted

If I were your attorney, I would strongly advise you to appear just for that reason: "Your Honor, he knew this would be elevated to a felony and yet appeared nonetheless, so it is clear that he is not a flight risk." On the other point, I have taken the position that a probation sentence that is not a state prison suspended [or prison itself!] is not really "punished as a felony," hence preventing this one from being a felony, notwithstanding the other was labeled felony!

Asker

Posted

Thank for the information. I am not too clear on the 2nd paragraph. Last DUi was felony, I served prison time, was discharged/completed parole Jan 2010. Is fighting this to remain a misdemeanor possible?

Michael James Kennedy

Michael James Kennedy

Posted

If you went to prison, then it was obviously "punished as a felony," so I need not explicate the niceties of that point. Sure, it is possible to get a misdemeanor out of it, although more difficult, given that you went to prison on the qualifying prior. On the other hand, the forensics of the DUI component of the charge are still as attackable as the forensics in any DUI. Don't lose hope; get a real DUI lawyer.

Posted

What makes you think it is going to be a felony? You have to have more than one prior before a DUI becomes a Felony unless there are other facts. Bail can be increased at any time. But if you are already OR there is decent chance a judge will let you remain OR unless new charges are filed.

Brian Michaels
brmlaw@aol.com
3109919179
www.socalcrimdefense.com

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Posted

Hello, thank you for the reply. I have one prior felony DUI (arrest date October 2007). That was a felony DUI because I had 4 within 10 years. My first 2 DUIs were in 2001 so those 2 have fallen off of my record (when I was arrested a couple of weeks ago it was for "misdemeanor DUI with 2 priors"). However, after doing a lotttt of reading online, I think that this will be increased to a felony at my arraignment due to the felony DUI from near 5 years ago. I did a blood test instead of breathalyzer, and I really feel that my BAC will be low, maybe even below .08 because about 5 hours had already gone by since my last drink. But who knows until I really know I guess. Any input is appreciated, thanks again.

Asker

Posted

**also, no accidents/injuries etc. Felony DUI I blew .09%!

Brian Russell Michaels

Brian Russell Michaels

Posted

Well if you are a .09 you should be thinking about trial. Feel free to give me a call. We give a free 45 minute consult 3109919179

Posted

Thanks for your question.

Matters of bail are up to the discretion of the court after hearing facts related to the crime and the risk of flight.

I hope this helps, and all the best to you. It's my pleasure to assist in any way that I can. Thanks.

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Posted

There are so many good answers and valuable information provided by other attorneys. DUI cases are so frequent that it merits my response as well. Bail is designed to make sure you return to court and to minimize the harm to the public. Therefore, if you want to impress the judge to give you another OR (own recognizance) release, provide the judge with the tools to do so. I would file a written motion to be released on your own recognizance and/or to grant bail and/or to reduce the bail. I use this motion to educate the judge as to the reasons to release you OR or to lower your bail. I would file this motion at the arraignment and include exhibits to back up your motion. If you still need help, I will be glad to help.

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