Is a DUI a Felony?

By Teo Spengler - Updated February 16, 2018
Man hand drinking beer and holding car keys

Driving under the influence of alcohol wasn't always considered the serious offense it is today. But as communities became aware of the damage done by drunk drivers to innocent people, legislators beefed up the laws. In most states, a first offense DUI is a misdemeanor, but prosecutors can charge DUIs as felonies in certain conditions.

Tip

The first time a person is arrested for driving under the influence, the offense will probably be charged as a misdemeanor. Multiple offenses and aggravating conditions, like causing severe injury or death, can bump the charge to a felony.

Driving Under the Influence

If you down even one alcoholic drink, it can impact your driving. But you aren't likely to be charged or convicted of driving under the influence (DUI) unless you have a blood alcohol concentration of .08 percent or higher. This is the standard level that trips the "per se" DUI rule in most states. It triggers the presumption that a driver is intoxicated in violation of the law. In many states, a refusal to take a breathalyzer test also triggers the presumption.

If the police determine that you were driving with a blood alcohol concentration of .08 percent or higher, you will probably be charged with a DUI. A DUI offense can be either charged as a misdemeanor or a felony.

Misdemeanor vs. Felony DUI

A misdemeanor is a lesser offense than a felony. In most states, a misdemeanor is an offense that carries a maximum punishment of one year in prison. Felonies are offenses that generally carry a minimum punishment of one year in prison.

Obviously, both a misdemeanor and a felony are criminal offenses that go on a person's record. But it is much worse to be charged with a felony than a misdemeanor. Conviction of a felony can also impact a person's future rights, including the right to vote, own a gun, serve on a jury and practice certain professions.

The first time a person is arrested on a DUI offense, it will likely be charged as a misdemeanor. However, various factors can elevate a DUI offense to a felony charge. State laws differ as to when a person's DUI is charged as a felony. Among the most common situations triggering a felony DUI charge are when a drunk driver kills or seriously injures someone, has multiple prior DUI convictions or has a child in the car at the time.

Variations on a DUI Theme

Each state has its own laws about when DUIs are charged as felonies. In California, a first offense will always be charged as a misdemeanor unless the driver injured or killed someone while driving drunk. If someone was injured but only slightly, the prosecutor can try it as a misdemeanor instead.

Multiple DUIs also result in a felony charge in California. Once a person has three or more DUIs, the next one can be charged as a felony. Out-of-state DUI offenses count in this tally, as do DUI convictions that were expunged. The same is true for Tennessee. There, a person's first three DUI charges within five years are all misdemeanors although the potential punishment increases with each charge. The fourth is a felony. But some states, like New York, don't give you that many chances. New York prosecutors charge a felony on the second DUI offense within 10 years. And in Virginia, the third DUI offense in a decade carries a Class 6 felony charge. The fourth sends the driver to jail for a year.

Someone who already has a felony DUI conviction will be charged as a felony if picked up yet again on a DUI in California. The prosecutor does not have the option of trying it as a misdemeanor. This is also true in Nevada, even if the first felony DUI was more than seven years before. It is also the case in many states.

In Arizona, a prosecutor can charge felony DUIs in several other circumstances. If a person gets a DUI while driving with a suspended license, the DUI can be a felony. Likewise, a person arrested for a DUI with a child under the age of 15 in the car can get hit with felony charges. This is also the law in New York, known as Leandra's Law, after an 11-year-old girl who was killed by her mother's friend driving drunk.

About the Author

Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Spengler splits her time between the French Basque Country and Northern California.

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