Prosecution was not barred from refiling substantive DUI counts as felonies after the DUI penalty allegation was dismissed once by a magistrate and the substantive DUI charges were dismissed once at the prosecution’s request. Dietrick was charged by felony complaint with driving under the influence (Veh. Code, § 23152, subds. (a) & (b)) and as to each count it was alleged that he had been convicted of a prior felony DUI within the past ten years (Veh. Code, § 23550.5). At the preliminary hearing, the prosecutor failed to present evidence as to the prior conviction and the court held Dietrick to answer on the DUI counts as misdemeanors. The prosecutor then dismissed the case and refiled the DUI charges as felonies with the prior conviction allegation after locating the evidence. Dietrick moved to dismiss pursuant to Penal Code section 1387 and the trial court denied the motion. In a petition for writ of mandate, Dietrick argued that further prosecution of the DUI counts as felonies was barred because the felony charges had been dismissed for failure of proof and the identical misdemeanor charges had been dismissed on the prosecution’s motion. The Court of Appeal rejected this argument. Section 1387 (the “two-dismissal” rule) generally bars further prosecution of a felony if the action has previously been twice dismissed. The appellate court reasoned that the prior DUI allegation in the complaint was a penalty provision and not a substantive offense within the meaning of section 1387. The penalty allegation was dismissed once as a matter of law when the magistrate found no evidence to support it. The substantive DUI charges were only dismissed once at the prosecution’s request. Thus, the substantive DUI counts could be refiled as felonies with the prior DUI conviction allegation without violating the “two-dismissal” rule.