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When’s an Attempted DUI Considered an Attempted Felony DUI?
In 2016, deputy sheriffs responded to a vehicle collision report that a car had crashed through a park fence and into playground equipment. The deputy responding found Tanya Marie Cummings nearby.
According to the deputy, Cummings exhibited “objective signs of intoxication.” She explained to the deputy that her cousin was driving Cummings’ car and he crashed through the fence and into the playground. Cummings said she then walked to the playground and told the deputy that she tried to back the vehicle out of the playground, but the wheels were stuck in the wood chips.
Why This Article Matters: Many people, including many judges, believe there is no such thing as “attempted DUI.” However, as the following summary explains, there is a such a crime with just the right facts.
The Sacramento County District Attorney’s office charged Cummings with two counts of DUI, Vehicle Code §§ 23152(a) and 23152(b). Additionally, it was alleged under Vehicle Code § 23550.5 that Cummings had two qualifying prior DUI convictions within ten years, one for violating 23152, the other for violating 23153.
Prior to trial, the People filed an amended information adding two counts of attempted DUI with prior DUI convictions (Penal Code § 664 / Vehicle Code §§ 23152(a), 23152(b) / Vehicle Code § 23550.5) based on her statement to the deputy that she attempted to drive the car out of the playground area.
On the first day of trial, Cummings, on her own, and the People reached a plea bargain wherein Cummings entered a plea to felony attempted DUI. Cummings’ public defender objected to the plea bargain, arguing that attempted DUI should be a misdemeanor even if, as in Cummings’ case, defendant had a prior felony DUI within the ten-year period.
The judge, Patrick Marlette, then sentenced Cummings, placing her on five years of formal probation with various terms and conditions.
Court of Appeal Third Appellate District SacramentoCummings then appealed the conviction to the Third Appellate District in Sacramento, arguing that “the plain language” of Vehicle Code § 23550.5 allowing additional punishment on a DUI only applies to completed crimes.
The People opposed Cummings’ appeal, arguing that Penal Code § 664 applies instead. Penal Code § 664(a) states, “Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: (a) if the crime is punishable by imprisonment in the state prison, or by imprisonment pursuant to subdivision (h) of Section 1170, the person guilty of the attempt shall be punished by imprisonment in the state prison or in a county jail, respectively, for one-half the term of imprisonment prescribed upon a conviction of the offense attempted.”
The Third Appellate District agreed with the People on this issue, noting that under Penal Code § 664(a), “an attempt to commit a felony is a felony punishable by imprisonment for one-half the term of imprisonment prescribed upon a conviction of the offense attempted.” People v. Duran (2004) 124 Cal.App.4th 666, 671.
The court emphasized that the express terms of § 664(a) indicate, it applies to an attempt to commit any felony, which, here, Cummings’ attempt to drive was an attempt to commit a felony DUI due to her prior felony DUI within ten years. Therefore, § 664(a) would apply unless the Legislature rendered 664 inapplicable to a particular crime by enacting a more specific statute to that crime. In re Maria D. (2011) 199 Cal. App. 4th 109, 115, citing Duran, supra, at 670-674.
But where the Legislature has not done so, section 664 must be read together with the statute defining the crime or the punishment therefor and determines the punishment for an attempt to commit that crime. In re Maria D., at 115-116.
Vehicle Code § 23550.5, which sets forth the felony sentencing range for completed DUI offenses (§§ 23152 and 23153) under conditions specified therein, does not contain any language that on its face would render section 664 inapplicable to attempted DUI and Cummings did not cite any authority so construing 23550.5.
The reader may wonder, well, what is the felony sentence for a completed DUI because 23550.5 does not state this. Penal Code § 18(a) establishes that the unspecified state prison range in 23550.5 is sixteen months, two years or three years, if probation is not granted. People v. Guillen (2013) 212 Cal.App.4th 992, 996.
In our experience, at attempted DUI is rare to see charged, but it can be charged and if it is, one may wonder how it is punished. This article hopefully answers that inquiry.
The citation for the Third Appellate District Court ruling discussed above is People v. Tanya Marie Cummings (3d App. Dist., 2021) 61 Cal. App. 5th 603, 275 Cal. Rptr. 3d 829.
For more information about attempted crimes, please click on the following articles:
