Are DUIs Felonies or Misdemeanors?

Police officer handcuffing suspect at roadside

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Is driving under the influence of intoxicants (DUI/DWI) a felony or a misdemeanor? Under most circumstances, a first-time conviction for driving under the influence is a misdemeanor, but there are circumstances under which a DUI can be a charged as a felony crime. These circumstances vary by state and jurisdiction.

In many states, a drunk driving charge is considered a traffic offense or a misdemeanor, but those charges can be enhanced from standard misdemeanor DUI to felony DUI depending upon other factors.

Besides the legal implications, being intoxicated beyond the legal limit for driving puts your health at risk in many ways, even if you aren't behind the wheel.

You will likely undergo an alcohol evaluation to see the extent of your drinking habits and alcohol education to explain how drinking can affect your life and health.

Factors That Elevate Misdemeanor DUI to Felony DUI

While laws vary state to state, the following are some common situations that can result in DUI sentence enhancements.

Prior Convictions for DUI

If you have a prior conviction for DUI, states vary in how many convictions and in what period of time these can be used to justify a felony DUI charge. Some states enhance the sentence for a DUI within the past five years, some 10 years and some states for any previous conviction no matter how long ago it was. If your driving license privileges have been restricted because of driving under the influence and you are caught driving while intoxicated again, some states will charge you with a felony. For example, if you have been ordered to install an ignition interlock device on your vehicle because of a previous DUI, and you are stopped for drunken driving again, it can be a felony in some states.

Bodily Harm

In most states, if someone is killed or injured by the drunken driver, felony charges can be filed. It's more typical that the driver must be the one who caused the accident that resulted in bodily harm.

If you run a stop sign while intoxicated and hit another vehicle, you may be charged with felony DUI if your passengers or people in the other vehicle are injured. But it is less likely your charge will be elevated to felony DUI if you were intoxicated but somebody else rear-ended you at a stop sign and you or other people were injured in the accident.

Breaking Other Laws and Driving With a Suspended License

In some jurisdictions, if you are arrested for DUI while breaking other laws at the same time, the charged can be elevated to a felony level. For example, in some states, if you are driving with a suspended license and are arrested for drunk driving, the offense can be considered a felony. If your license is restricted, suspended, or revoked, it is very bad news to be caught for DUI.

High-Level Blood-Alcohol Concentration

The standard for impairment is a blood alcohol content (BAC) of .08 percent in all states. In other states, a higher BAC can result in getting a harsher punishment when convicted of misdemeanor DUI.

You can expect that the higher your BAC, the worse the penalty will be.

Child Endangerment

If you were caught driving under the influence with a child in the vehicle, your sentence will be enhanced in many states, even if it's your own child. The enhancement applies for minors under age 18 but the age cut-offs vary from state to state.

  • Maximum of one-year jail time

  • Fines typically $1,000 or less

  • Possibility of probation

  • Minimum of one-year jail time (often in state prison)

  • Fines excess of $1,000 (even tens of thousands)

  • Possibility of parole and probation

Refusal to Take a Breath Test

In many states, if you refuse to take a breath test you can be subjected to more penalties that you would have if you submitted to the testing. In some states, refusal means immediate revocation of your license and in other states, it means mandatory jail time. You can no longer be given an enhanced sentence for refusing to take a blood or urine test unless the police first obtain a warrant, the Supreme Court ruled in June 2016.

Property Damage

If you had a wreck while driving under the influence, your penalties will be greater in most states; even greater if you do not have required auto insurance.

The Consequences

Drunk driving laws vary from state to state and new legislation is passed every year. If you are charged with a felony DUI, you'll need a lawyer, who depending on your situation, may try to reduce your sentence or lessen your charges. In some states, however, this may be a waste of time and money as the penalties are mandated by state law and can't be changed.

In addition to hefty fines and mandatory jail time, if you are charged with a felony DUI you will likely lose the following:

  • Driving privileges (temporarily or permanently)
  • Civil rights (right to vote or own a weapon)
  • Custody or visitation privileges (especially if a child was in the vehicle)

You'll also be required to use a monitoring device (breath alcohol ignition interlock device or a blood alcohol continuous monitoring device (SCRAM ankle bracelet).

Most states also have laws that require anyone convicted of drunk driving to undergo an alcohol evaluation. A counselor will evaluate you to see whether your drinking behavior can be considered alcohol dependence or alcohol abuse. You may be required to enter an alcohol treatment program or an alcohol education program to learn how binge drinking and other problem drinking can affect your health and life.

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6 Sources
Verywell Mind uses only high-quality sources, including peer-reviewed studies, to support the facts within our articles. Read our editorial process to learn more about how we fact-check and keep our content accurate, reliable, and trustworthy.
  1. National Conference of State Legislatures. Criminal Status of State Drunken Driving Laws. 2019.

  2. National Conference of State Legislatures. State Ignition Interlock Laws. 2018.

  3. National Conference of State Legislatures. Sanctions for Drunk Driving Accidents Resulting in Serious Injuries and/or Death. 2018.

  4. National Highway Traffic Safety Administration (NHTSA). Drunk Driving.

  5. National Conference of State Legislatures. State Law Chart: Impaired Driving with a Child in the Vehicle. August 2016.

  6. Govenors Highway Safety Association (GHSA). Alcohol Impaired Driving. 2018.