In most states, a first-time DUI is charged as a misdemeanor. Often, a convicted offender does not need to do jail time, but instead may be put on probation and be required to pay a fine, do community service, and attend alcohol abuse treatment or education. However, there are circumstances that can elevate what might otherwise be charged as a misdemeanor DUI to a felony DUI. Each state has its own DUI laws defining which factors must be present to make a DUI charge a felony charge.
Felonies are punished more severely than misdemeanors and generally involve a year or more of jail or prison time.
Felony DUI Based on Prior DUIs
Some states charge first DUIs as misdemeanors, but when there are multiple convictions during a particular lookback period, what could have been charged as a misdemeanor may be elevated to a felony. A lookback period is the period of time during which prior offenses are counted for the purpose of sentencing in the DUI case before the court. For example, if someone is convicted of a third or subsequent DUI in Arizona during an 84-month period, it can be charged as a Class 4 felony.
Felony DUI Based on BAC
Blood alcohol content (BAC) can affect whether you are charged with a misdemeanor or felony DUI, in combination with other factors. There are certain states in which a DUI will become a felony when the offender has taken a chemical test that shows that his or her BAC was over a certain amount that is significantly higher than the standard .08% for per se DUI charges, and/or there are prior convictions. For example, in such a state, you could be charged with a felony for drunk driving with a BAC of .16%. Even if the charge is not a felony charge, some states will impose higher penalties for the significantly higher BAC.
There are also states in which a DUI is charged as a felony when a drunk driver's actions behind the wheel cause bodily injuries to another person. For example, in Minnesota, when a DWI causes bodily harm, substantial bodily harm, great bodily harm, or injuries to an unborn child, it can be charged as a felony. Other states allow prosecutors to use their discretion to decide whether to charge DUIs in which bodily injuries occur as felonies or misdemeanors.
Felony DUI Based on Minor in the Vehicle
A felony DUI might be charged in some states if the driver has a minor in the vehicle while drunk driving occurs. However, in other states, there may simply be enhanced penalties for the misdemeanor DUI charge based on having a minor in the car. Any state that provides for enhanced penalties will set its own age range for when the enhanced penalty can be applied. For example, in California, there are enhanced penalties for DUI involving child endangerment when there is a child under the age of 14 in the car. California prosecutors can choose to charge both DUI and child endangerment under Penal Code section 273(a) instead of asking for the sentencing enhancement when there was a child in the car.
Felony DUI Based on License Suspension
Some state laws provide that a felony DUI can be charged for a DUI committed while the accused had a revoked, suspended, or restricted license. For example, in Illinois, if you are caught driving on a revoked or suspended license based on a DUI or an accident involving death or personal injury or a Statutory Summary Suspension, and it is a second violation, you can be charged with a felony DUI.