Burris

Tony Rackauckas, District Attorney, and Brian N. Gurwitz, Deputy District Attorney, for Real Party in Interest.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Patti W. Ranger and Lise Jacobson, Deputy Attorneys General, as Amici Curiae, upon the request of the Court of Appeal.

ARONSON, J.

Veteran prosecutors for years have counseled their inexperienced colleagues to proceed with care when attempting to supplant a pending misdemeanor complaint with a new felony charge. They warned that premature dismissal of the misdemeanor before a new felony charge was filed would bar any further prosecution under Penal Code section 1387. [1] We consider in this writ petition whether this commonly held belief is accurate. It is not.

Petitioner Michael Burris was charged with a misdemeanor count of driving under the influence of alcohol (DUI) with a blood alcohol level of at least 0.08 percent. Two prior DUI convictions also were alleged. Before trial, the deputy district attorney discovered a third DUI prior. Under Vehicle Code section 23550, subdivision (a), a defendant's DUI charge may be elevated to a felony…