Burris

Does the dismissal of a- misdemeanor complaint bar all further prosecution for the same offense, even a felony charge based on the same conduct? It does not. Instead, two prior dismissals are required before felony prosecution will be barred. Because charges against defendant Michael Lehman Burris were dismissed only once, we affirm the Court of Appeal’s denial of writ relief.

Procedural and Factual Background

Burris was charged with misdemeanor counts of driving under the influence of alcohol (DUI) and driving with a blood-alcohol level of at least 0.08 percent. (Veh. Code, § 23152, subds. -(a), (b).) The complaint alleged two prior DUT convictions. Before trial, the prosecutor discovered a third *1016 DUI prior. Under Vehicle Code section 23550, subdivision (a), driving under the influence within seven years of three or more DUI convictions is a “wobbler” and may be prosecuted as a misdemeanor or a felony at the prosecutor’s discretion. (See Pen. Code, § 17, subd. (b)(4).) 1 The prosecutor elected to refile Burris’s case as a felony and moved to dismiss the misdemeanor complaint. The trial court granted the motion, 2 and the prosecution filed a felony…