Felony DUI Charges

Drunk driving is often referred to as driving under the influence of alcohol, or DUI, but can also be known as as driving while intoxicated, or DWI, or by similar terms.

By , Attorney · University of San Francisco School of Law
Updated January 22, 2021

States use various names for drunk driving such as "driving under the influence" (DUI) and "driving while intoxicated" (DWI). But regardless of the offense name, driving under the influence is illegal in every state. And, the DUI laws of all states prohibit drunk driving and driving while under the influence of drugs. Generally, a DUI conviction can be based on the driver's blood alcohol concentration (BAC) or actual impairment resulting from drugs or alcohol.

While in many situations DUIs are considered misdemeanor offenses, felony DUI charges are also possible.

Is a DUI a Felony or Misdemeanor?

In all states, a DUI can be a misdemeanor or a felony, felony DUIs being the more serious of the two. What differentiates a misdemeanor from a felony DUI is a product of state law. But, generally, the presence of certain aggravating factors (discussed below) can elevate a DUI to a felony.

Aggravating Factors That Can Make a DUI a Felony

Each state has its own criteria for what qualifies as a felony DUI (some states also use the term "aggravated DUI"). But here are some of the most common aggravating factors that can lead to felony DUI charges.

Prior DUI Convictions

Habitual or repeat offenders often face felony DUI charges if they have had previous DUI convictions within a specific time limit. In most states, first and second DUIs are misdemeanors. However, many states categorize third (or fourth) and subsequent DUIs as felonies. But it's also common for state laws to count only DUIs that occurred within the past so many years (for instance, seven or ten years).

DUIs Involving Injuries or Deaths

In some states, a DUI can be charged as a felony if the driver was involved in an accident that resulted in someone being injured or killed. State laws sometimes provide for felony charges only if the injuries to another person were serious rather than minor.

DUIs With Children in the Car

If you're caught driving under the influence with kids in the car, you could face felony charges. And, even if your state doesn't categorize this type of DUI as a felony, having children in the vehicle might still be a factor that could lead to enhanced penalties.

DUI With a Suspended License

A person who drives with a suspended license can also face a felony DUI regardless of other aggravating factors. When you have your license suspended you are no longer legally permitted to drive. If you are found to be driving under the influence of alcohol while on a license suspension, this is often enough to raise the DUI from a misdemeanor to a felony offense.

Blood Alcohol Level

In a handful of states, you can be charged with a felony DUI if your blood alcohol concentration was particularly high. For instance, in some states, it's a felony to drive with a BAC of .20% or more (the legal limit for a standard DUI is .08%). Some states are even more strict and impose felony penalties for DUIs involving a BAC of .16% or more.

Misdemeanor and Felony DUI Penalties

Generally, misdemeanor and felony DUIs carry the same types of consequences. However, the possible consequences of a felony DUI are generally much more severe than those for a misdemeanor DUI.

Fines and Jail Time

For a misdemeanor DUI conviction, the offender will typically be looking at up to a few thousand dollars in fines and a maximum of one year in jail. However, in most misdemeanor DUI cases, the offender spends no time or only a few days in jail.

Felony DUI convictions often carry much higher fines (up to $10,000 or so) and substantial jail or prison time. With felony DUIs, it's common for the minimum jail time to be six months or a full year. And, in certain circumstances, a felony DUI offender might have multiple years in prison.

License Suspension and Revocation

When you're convicted of any DUI, you can generally expect to lose your license for a period of time. But the license suspension period is almost always significantly longer for a felony than it is for a misdemeanor conviction. In some situations, a felony DUI could also lead to permanent license revocation.

DUI Probation

A misdemeanor or felony DUI conviction might involve the offender having to complete a period of probation. In some cases, judges can actually order probation in lieu of jail time.

Generally, those on probation have restricted liberties, meaning they must comply with numerous restrictions and conditions the court imposes. Probation conditions might include things like participation in drug and alcohol treatment, drug and alcohol testing, maintaining employment, and reporting to a probation officer.

Felony probation typically comes with more onerous conditions and might be longer than misdemeanor probation.

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