Is a DUI a Felony?

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Annamarie Coy, BA, ICPR, MATS

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Jordan Flagel

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Is a DUI a Felony or Misdemeanor?

Driving under the influence, more commonly referred to as DUI, is illegal in every state. However, the consequences of this offense can be classified as either a felony or misdemeanor. The type of offense you get depends on the situation and where you are charged with the DUI.

A DUI applies if your driving is impaired for any valid reason related to substance use. This includes if your blood alcohol level is above the legal limit or while driving under the influence of illicit substances. As a general rule, a first offense DUI is more likely to be a misdemeanor charge. A repeated offense is more likely to warrant a felony charge.

In some states, the punishment for either DUI charge involves jail time. However, the punishment for a misdemeanor is typically less severe. A felony DUI is a more serious charge and can lead to incarceration in a state prison for over a year.

These are the most common consequences for both types of DUI charges:

Misdemeanor

Maximum one-year jail time (usually only a few days)
Fine of typically less than $1,000
Probation

Felony

Minimum of one-year sentence (often in state prison)
Fines in excess of $1,000
Possibility of parole and, in some cases, probation
Loss of driving privileges (temporarily or permanently)
Loss of civil rights (right to vote or own a weapon, depends on state)
Loss of custody or visitation privileges (especially if a child was in the vehicle)

Factors That Determine Misdemeanor DUI Charges

The majority of first-time DUI arrests involve misdemeanor charges. If you are charged with a misdemeanor, you have the right to a trial to defend yourself. A conviction may still lead to civil restrictions, including difficulties finding a job and loss of firearm permits. However, these restrictions are much less prominent than those that result in a felony charge.

The following factors generally apply when determining a misdemeanor DUI charge:

First offense

If it is your first arrest, or potentially your first conviction, the consequences are usually less severe. This is only true if there are no other factors involved, such as high blood alcohol concentration (BAC).

Lower blood alcohol level

If your blood alcohol level is below 0.15, there is a better chance to avoid felony charges.

No aggravating factors

These are certain factors that can elevate a misdemeanor charge to a felony charge.

Factors That Determine Felony DUI Charges

Factors that elevate misdemeanor DUI cases to felony offenses are called aggravating factors. Felony convictions are life-altering and usually result in lost professional licenses, voting rights, and public housing benefits.

The following aggravated factors generally apply when determining a misdemeanor DUI charge:

Prior DUI offenses (if any)
BAC or level of intoxication
Whether an accident was caused by intoxication
Whether any of the passengers or others involved were minors
Refusal to submit to a breath test
DUI in a school zone

Process of a Felony DUI/DWI Conviction

Police in every jurisdiction have the right to stop any vehicle suspected of impaired driving. During any such stop, officers will ask drivers if they have consumed alcohol or drugs.The driver is also required to provide a valid license, proof of car ownership, and insurance documents.

Roadside test

You do not have the right to consult a lawyer before performing a roadside test. The police will make a judgment about your ability to drive safely based on a number of observations, tests, and samples, including:

Appearance
Answers to questions
Physical movement
Whether the driver or the car smells like alcohol
Breath test
Field sobriety test, which involves examining the eyes of drivers and putting them through physical movement tests

You have the right to have a lawyer present if an officer arrests you and takes you to a police station or medical facility for further testing.

Processing

The time between arrest and conviction for a DUI is referred to as the processing phase. This involves gathering all evidence needed for admissibility in court. Processing is always done before any convictions are made.

Arraignment

An arraignment is usually the first court appearance for a DUI case. Timeframes in which arraignments must be held differ between states, but it is typically somewhere between 36 and 96 hours of the initial arrest.

Pleas

Defendants in DUI cases may enter a plea of guilty, not guilty, or no contest. This happens during the arraignment or at a special plea hearing, depending on the jurisdiction.

Hearings (preliminary and pretrial)

Defendants are usually entitled to a preliminary hearing following arraignment, though in some jurisdictions preliminary hearings only proceed in felony cases.

At preliminary hearings, the judge decides whether there is enough evidence to establish “probable cause” that the defendant is guilty of the DUI charge. These hearings are mainly in place to dismiss cases where evidence is too weak to warrant going to trial. If there is sufficient evidence, but the defendant pleads not guilty, a trial will be scheduled.

Trial

In most instances, DUI defendants have a constitutional right to a jury trial, though many cases are resolved beforehand through plea bargaining. Trial procedures vary, but they generally consist of more than six jurors, the prosecutor, the defendant, and the defense attorney.

Following opening statements, evidence is presented by both sides. This concludes with the jury delivering a verdict after private deliberation.

Sentencing Hearing

If the defendant is guilty of a DUI conviction, the judge will set a sentencing hearing. Depending on the jurisdiction and circumstances of the case, a DUI sentence might include:

Incarceration
Varying fines
License suspension
Mandatory Ignition Interlock Device (IID)
Community service

Generally, the severity of DUI consequences depends heavily on if the case was classified a misdemeanor or a felony. However, all of the above may be warranted in certain misdemeanor cases if there are other circumstances involved.