DUI: Misdemeanor to Felony

Imagine going out to a nice dinner with your loved ones. You enjoy a delicious meal, along with a glass or two of wine. When the check has been taken care of and you get in the car, do you worry about getting a DUI on your way home? Should you worry after only two glasses of wine?

The sad truth behind this hypothetical scenario is you probably know a few people with a story just like this one. While perhaps one person felt fine to drive, only minutes later he or she was pulled over and charged with drunk driving. Maybe another person was perfectly fine and made it safely home. Where is the line drawn on DUI charges? Is there a difference between types of charges and the severity of each? How do you know if you are at risk of a driving under the influence charge, and what do you do if you are charged?

While it is a serious crime, and drunk drivers are not only breaking the law but putting themselves and everyone else on the road at harm from possible injury or death, it is still a major problem in our country. In fact, in a given year, about 1.5 million people nationwide are arrested for driving under the influence. There are many questions that come with all DUI cases and, truth be told, each one is different. While generally people might consider a driving under the influence charge a minor deal in the legal system, in some cases it can result in a felony, making it a very big deal.

What Is a DUI?

Sure, while you might have heard DUI stories, do you know what it means, legally means, when one is charged with driving under the influence? By definition, a DUI refers to an arrest or conviction for driving under the influence, or the act or crime of driving while affected by alcohol or drugs.

However, when it comes to DUI charges and cases, there are many circumstances that could possibly change the definition, and factor into the punishment and outcome. When it comes to the severity of a DUI charge, it will be classified as either a misdemeanor or a felony. This is ultimately is what determines the appropriate fine, punishment, and/or jail time.

Misdemeanor vs. Felony

It's important to understand the difference between a misdemeanor and a felony, as understanding these two terms is a key component of understanding charges against someone, and the punishments that come because of the charges.

Understand that while we try to give you a clear definition of each crime, the law is hardly ever black and white. Both the state regulations in which the crime occurred and other circumstances play a part in the charges and punishments brought against someone who broke the law. However, this will give you a general guideline.


In general, misdemeanor charges are less serious crimes, such as DUI, minor theft, and minor drug charges. These charges are usually punishable by fines and sometimes jail time, although time served is usually minimal (less than a year.) If jail time is served, it is usually done so in a local or county jail.


Felonies are the most serious type of crime and are classified by degrees. A first-degree felony is the most serious, followed by second and third-degree felonies. While not all states require this, most states will ask a grand jury to indict the defendant before charging with him/her with a felony.

Felonies are punishable by hefty fines, prison sentences, and, depending on the crime and state, death. When charged with a felony, you are entitled to a trial by jury and to have the option of obtaining an attorney or having an attorney provided for you.

More than just the fines and the time served, you will experience even more consequences outside of the terms of your punishments. Convicted felons cannot vote, serve on juries, purchase firearms, or work in certain fields, such as military, teaching, and law.

Felony DUI

As we just discussed, many DUIs don't result in a felony charge; however, under certain circumstances, they can. As you can imagine, a felony DUI results in different, and often more severe, consequences. Another aspect you have to consider is that not all states have the same procedures and laws concerning felony drunk driving. Here are the determining factors in felony DUI cases:

Prior Convictions

One of the most common factors that cause a drunk driving charge to result in a felony is the number of prior convictions, along with the time span between each. However, states also have differing laws, so it is useful to know the specific laws in your states. Each state is different, and the specifications are as follows:

No Felony Laws

The District of Columbia, Maryland, Maine, New Jersey, and Pennsylvania do not have laws against felony drunk driving.

Second Offense

In Indiana, a felony DUI conviction is possible if the first offense happened within five years of the second. Minnesota will hand out a felony conviction for drinking under the influence, based on the circumstances of the offense and the surrounding case. In New York and Oklahoma, a felony DUI is handed out to those who have committed their second offense within 10 years of their first.

Third Offense

In Arizona, Delaware, Idaho, Illinois, Iowa, Kansas, Massachusetts, Mississippi, Missouri, Nevada, North Carolina, Texas, Vermont, and West Virginia, a third DUI results in a felony offense.

In South Dakota, when you get a third offense within five years of your previous DUI charge, you can be convicted of a felony charge.

For states such as Alaska, Connecticut, Florida, Michigan, Utah, and Virginia, a third offense results in a felony charge when it occurs within ten years of the previous DUI.

Fourth Offense

California, Colorado, Hawaii, Kentucky, Louisiana, Montana, New Hampshire, New Mexico, and Oregon consider felony DUI after your fourth charge.

The states of Alabama, Arkansas, Wisconsin, and Wyoming consider a felony DUI charge after the fourth offense occurs within five years of the previous one.

In Ohio, a felony DUI charge is applied when your previous offense happens within six years of the prior.

In North Dakota, a drunk driver is given a felony DUI charge if the fourth occurrence happens within seven years of the previous one.

Georgia, South Carolina, and Tennessee consider a DUI felony charge after the fourth offense if it occurs within the ten years of the prior offense.

Nebraska gives a felony DUI conviction if it occurs twelve years after the prior offense.

Fifth Offense

Lastly, only in the state of Washington do you receive a felony DUI charge after the fifth offense.

BAC Level .

While the states have different criteria for determining a felony drunk driving charge, every single state has to abide by the level of intoxication that is legal and not legal for the driver. Currently, if your blood alcohol level or BAC is under a .08 percent, then you are legally okay to drive. However, if you blow over .08 percent, you are considered legally intoxicated.

However, keep in mind that there are certain situations where a state might deem your drunk driving offense a felony due to your BAC level. For instance, many states (but not all) may try you for a felony DUI if you blow higher than a .16 percent. While not every state will elevate a charge for a higher BAC level, they will usually hand out stricter punishments.

Restricted, Suspended or Revoked License.

If you are pulled over driving on a restricted, suspended, or revoked license, there are consequences you have to face. If you are driving intoxicated on a

Children in the Car.

Many states will try for felony DUI if the drunk driver has children in the car. The age restrictions that determine whether a drunk driving case can use a felony offense varies, so it important to know your own state's regulations.

In New York, for example, due to Leandra's Law, children under the age of 15-years-old present in the car of an intoxicated driver turn what would be a misdemeanor charge into a felony. The law was passed after an 11-year-old girl, Leandra,

Bodily Harm.

The last determining factor in creating a felony out of an otherwise misdemeanor DUI charge depends on if the intoxicated driver caused bodily harm to another while they were driving. Again, as with every aspect of these laws, this also depends on your individual state's specific regulations.

For instance, in California, if it is proven that the injured driver ran into the intoxicated driver, say while the drunk driver was at a red light, then their injuries weren't a result of the inebriated driver, and the charge will, therefore, remain a misdemeanor.

You've Gotten a DUI; Now What?

When you get pulled over and have been drinking, whether you believe that you are intoxicated or not, there are certain steps you need to take that will help you in the long run. Here are the key things to remember.

Pull over.

When you see the flashing lights behind you, always pull over. Slow down, turn on your blinkers, and plan to pull over to the right when it is safe to do so.

Stay in the car.

You should always stay in the car unless you are asked otherwise by the officer. If it is dark out, be sure to switch on the interior lights. It is important to remember, in these situations, that the officer knows nothing about you. If you make sudden movements or get out of your vehicle, you may surprise the officer, as they don't know what you are about to do.

Follow all instructions.

You should always listen to the officer and follow all instructions given to you. Remember, they are the ones in charge during the duration of the time you are pulled over.

Think before you speak.

If you don't think before you open your mouth, you can do more harm than good. In fact, this is a mistake that most people make. Never volunteer information, and don't argue with the officer. Simply answer the questions you are asked. Make sure all passengers do the same. When you talk too much, you could give the officer reason to take you out of the car, search the vehicle, or administer sobriety field tests.

Remember you are being watched.

It's important to remember that you are being watched. Every move you (and the officer) make is recorded on the camera from the patrol car. You should always act accordingly, because,in case you are arrested, your attorneys will likely pull the tape and use it in court.

Think before testing.

Before you agree to any testing, whether it is a BAC test or a field sobriety test, you need to consider your options. If, for any reason, you believe that you will fail a BAC test, it might be in your best interest to deny the test.However, denying the test has consequences, so you have to weigh your options. Also, if an officer asks for you to participate in a field test, it might be in your interest to ask if the test is voluntary. If it is, you have every right to refuse it.

If you have been charged with felony DUI, don't hesitate to immediately rely on legal assistance. Only a skilled and experienced attorney in DUI charges and cases will be able to fight and achieve the best possible outcome for you. While a felony drunk driving charge seems like a helpless situation, you do have some options. No matter the circumstances of your case, we strive to work with our clients who fall victim to felony DUI charges and assist them in determining their next move.

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