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Updated on September 8, 2023
9 min read

Is a DUI a Felony?

Driving under the influence, more commonly known as DUI, is a criminal offense in every U.S. state. All states can charge you with a DUI if you drive under the influence of alcohol, with a blood alcohol content (BAC) of .08% or .05% (Utah).

The legal consequences and responses to a DUI depend on whether you’re charged with a felony or a misdemeanor. This blog details what you should expect when you get charged for one or the other to help you prepare your legal defense.

Is a DUI a Felony or a Misdemeanor?

Besides alcohol use, driving under the influence can also be charged to a person who drives under the influence of any other illicit substance that impairs judgment.

The law classifies a DUI as either a felony or misdemeanor, depending on the state and the circumstances of the crime. Generally, a first-offense DUI is more likely to be a misdemeanor charge, while a repeated offense is more likely to warrant a felony charge.


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Factors that Determine Misdemeanor DUI Charges

If it’s your first arrest or potentially your first conviction, the consequences are usually less severe. The majority of first-time DUI arrests receive a misdemeanor charge in court. 

If you’re charged with a misdemeanor, you have the right to a trial to defend yourself. A conviction may lead to civil rights restrictions, including difficulties finding a job and losing firearm permits.

The following factors generally apply when determining whether a DUI is a misdemeanor or a felony DUI:

  • First offense: First-time offenders generally get a misdemeanor unless the charge includes aggravating factors.
  • Low BAC level: If your blood alcohol level is below 0.15%, there’s a better chance to avoid felony DUI charges.
  • No aggravating factors: These circumstances, detailed below, can elevate a misdemeanor to a felony.

Factors that Determine Felony DUI Charges

Felony DUI convictions are life-altering and usually result in losing professional licenses, voting rights, and public housing benefits. What turns misdemeanor DUI cases into felony DUI offenses are called aggravating factors.

The following aggravated factors are considered when determining a felony DUI charge:

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

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How Do You Get a Felony DUI Conviction

Police in every jurisdiction have the right to stop any driver they suspect of operating a vehicle while under the influence.

Once approached, an officer will ask the driver if they consumed alcohol or drugs that day. They will also ask the driver to provide a valid license, proof of car ownership, and insurance documents.

Afterwards, you’ll have to go through the following if you’re suspected of driving under the influence:

Roadside Test

The police will make a judgment call about your ability to drive safely based on observation, testing, 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 and putting the driver through physical movement tests

You don’t have the right to consult a lawyer before performing a roadside test. However, you may get a DUI lawyer if an officer arrests you and takes you to a police station or medical facility for further testing.


The processing phase is the time between arrest and conviction for a DUI. This is when the prosecution collects all its evidence for admissibility in court. Before this point, you may consult DUI attorneys to defend your legal rights.

Free Lawyer Consultation

There are online places where you can receive a free lawyer consultation if you can’t afford one. Most DUI lawyers give a free consultation to defendants to assess the specific circumstances and viability of the case.


An arraignment is usually the first court appearance for a DUI case. The requirement for the time frame in which the arraignment must be held differs between states. Typically, it’s between 36 and 96 hours after the initial arrest.


Defendants in DUI cases may plead guilty, not guilty, or no contest. Depending on the jurisdiction, this happens during the arraignment or at a special plea hearing.

Hearings (Preliminary and Pretrial)

Following arraignment, the law usually entitles the defendant to a preliminary hearing. In some jurisdictions, a preliminary hearing only proceeds in felony cases.

At preliminary hearings, the judge decides whether there’s enough evidence to establish “probable cause” that the defendant is guilty of the DUI charge. These hearings are mainly for dismissing cases where evidence is too weak to warrant going to trial.

If sufficient evidence is found and the defendant pleads “not guilty,” the next step will be a formal trial.


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

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

Sentencing Hearing

The judge will set a sentencing hearing if the defendant is found guilty of a DUI charge. 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 whether the case qualifies as a misdemeanor DUI or a felony offense. However, the sentence may include all of the above consequences in certain misdemeanor cases if there are certain circumstances.


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Consequences of a DUI Charge

The punishment for a DUI varies by state and depends on whether the charge is a misdemeanor or felony. This classification depends on whether the DUI is a repeat offense or includes aggravated conditions.

For misdemeanors, a sentence for DUI includes a short jail time. 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 a DUI charge in the U.S.:


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


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

Mandatory Minimum Sentence for Second DUI

A mandatory minimum sentence is the minimum consequences a person can receive if found guilty of a DUI charge.

In Arizona, for example, the mandatory minimum sentence for a repeat DUI is:

  • 120 days in prison
  • A fine that can exceed $3,600
  • The loss of your driver’s license for up to a year
  • Mandatory attendance at highway safety school

In other states, the law may carry a lighter or heavier consequence for a second DUI charge, which can be either a misdemeanor or a felony.

What Happens if I Have Prior DUI Convictions?

The penalty for a DUI charge increases depending on the number of prior convictions a person possesses. The more convictions you have, the harsher the penalty.

In many U.S. states, the law considers a person a repeat offender only if a repeat DUI offense occurs within a specific time frame referred to as a “look-back period.” If a person commits a DUI offense beyond their look-back period, it won’t count against them legally.

Ten years is the most common look-back period, as is the law in states like California, Pennsylvania, and Virginia. Other states have a look-back period as low as five years, while others have no look-back limit.

One Prior Conviction

If you are a repeat DUI offender with at least one prior conviction within your state’s look-back period, you will likely receive an “aggravated second DUI” charge.

In many states, aggravated second DUI is a felony rather than a misdemeanor offense. It carries more severe penalties and is more likely to carry a “mandatory minimum sentence,” which ranges in severity according to state.

Two Prior Convictions or More

With each prior DUI conviction within a state’s look-back period, harsher penalties can be sentenced on you.

In California, for example, a third DUI is a misdemeanor offense that carries the following penalty:

  • 120 days to 1 year in prison
  • 3 to 5 years probation
  • $2,500 to $3,000 in fines
  • 30 months of DUI education program, recognized by court
  • Loss of driver’s license for three years (with the option for a restricted license after 18 months, with use of ignition interlock device (IID)
  • IID for two years

Third DUI Charge with Aggravated Conditions

The sentence is even more severe for a third DUI if the case includes certain circumstances or aggravated conditions, such as:

  • Higher than .15% BAC (although some California countries set the aggravated charge limit at less)
  • Causing an accident
  • Having a minor in the vehicle, causing child endangerment
  • Being underage (below 21-years-old)
  • Driving above the speed limit in the area
  • Refusal to comply with testing

DUI laws often allow for a sentence reduction if the driver agrees to join Alcoholics Anonymous (AA) or a program run by Mothers Against Drunk Driving (MADD).

Consequences of Fourth DUI Offense

According to California DUI laws, a fourth DUI is when repeat offenses can be charged as a felony.

Even when charged as a misdemeanor, a fourth DUI comes with harsher penalties, including jail time as little as 16 months or as long as 3 years.

A felony conviction may include serving a longer sentence in a state penitentiary. It offers less freedom and tends to house people serving time for violent crimes.

Fourth DUI with Aggravated Conditions

The penalty for a fourth DUI increases when there are aggravated conditions present, such as:

  • Speeding or reckless driving
  • Driving under the influence with minors under the age of 15
  • Causing a serious injury or fatality
  • Refusing to comply with chemical testing after arrest

If you receive a fourth DUI conviction with aggravated conditions in California, you can go to state prison for between 4 and 15 years.


Driving under the influence, or DUI, is a criminal offense with varying penalties across the U.S. states. Although it’s considered a misdemeanor for first-time offenders, different variables can turn it into a felony charge.

DUI charges can result in several consequences, from fines to jail time. To avoid severe sentencing, experienced criminal defense attorneys can help prepare your case if needed in front of a jury.

It's best to avoid drunk driving altogether by having a designated driver if you’re intoxicated. It may help you to learn how much alcohol is too much to drink before you sit behind the wheel.

Updated on September 8, 2023
4 sources cited
Updated on September 8, 2023
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