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DUI Charged As a Felony

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Can a DUI or DWI be Charged as a Felony?

In many states a DUI or DWI offense can be charged as a felony under certain circumstances. When charged with a felony, you are usually sentenced to serve time in prison or jail with community service, license suspension and heavy fines.

When Can I Be Charged With A Felony For A DUI Offense?

Each state has their own rules about when a drunk driving offense can be charged as a felony.  Below are some examples of when drunk driving offenses become felonies.   


In California, penalties for DUI offenses increase with each offense. The definition for what is a felony depends on the circumstances surrounding your offense. You can be charged with a felony under one of three theories.

  1. You have a history of DUI violations. 
    If you have had three prior convictions within the last 10 years, as calculated from arrest date to arrest date, the fourth DUI arrest within 10 years is a felony.
  2. Your DUI violations occurred with a car accident where another person was injured or killed.
    In this case you may have violated California DUI Vehicle Code Section 23153. This DUI section provides a "wobbler" offense, meaning it may be charged as a felony DUI or a misdemeanor DUI.
  3. You were convicted under #2 above, under California DUI Vehicle Code Section 23153, within 10 years.
    All California DUI arrests within 10 years of the felony DUI will be considered felony DUI.


In Texas your first DWI conviction is a Class B Misdemeanor, your second conviction is a Class A Misdemeanor and your third conviction is considered a 3rd Degree Felony. 
You can also be charged with a felony in Texas for a DWI offense if:

  • You drove while intoxicated with a child who is less than 15 years old.
    In this case you may be sentenced to state jail for not more than 2 years or less than 180 days and made to pay a fine not to exceed $10,000.00.
  • Your DWI violation occurred with a car accident where another person suffered serious bodily injury
    In Texas this is called intoxication assault, a 3rd Degree Felony. You may serve from 2 years to a maximum of 10 years in jail. Additionally, you may be fined up to $10,000.00. Texas law mandates that a judge order not less than 160 hours or more than 600 hours of community service for this conviction.

New York

In New York, you may be charged with "driving while impaired by alcohol" which is the least serious DUI offense and will not leave you with a criminal record. 
If you are charged with "driving while intoxicated" (DWI), your first conviction is considered a misdemeanor and gives you a criminal record. Your second DWI conviction is considered a class E Felony.

You can also be charged with a felony in New York if:

  • Your DWI violation occurred with a car accident where another person suffered serious bodily injury
    In New York this is called vehicular assault, and is a class E Felony. If you are convicted of a second DWI violation within 10 years, you may be charged with a class D Felony. Both these convictions will result in jail time, probation, license revocation and fines.

Will My Home State Know About My DUI Conviction?

California, Texas and New York are all members of the Interstate Drivers License Compact, which is a group of 45 states which share information about DUI convictions and driver's license actions with other member states.  If you get convicted of a DUI offense or action is taken on your driver's license in a member state and your home state is also a member of the Compact, the state in which you were convicted will share the information with your home state.  What the home state does with the information varies from state to state.

The states not members of the Interstate Drivers License Compact are: Georgia, Massachusetts, Michigan, Tennessee, Wisconsin.

Should I Consult A DUI Or DWI Attorney?

An experienced DWI or DUI attorney should be quickly consulted if you are charged with a DUI/DWI offense, especially if you are charged with felony DUI.  In many states, there are strict deadlines for hearings to retain driving privileges. An attorney can also ensure that your rights are preserved from the time you are arrested. The applicable laws regarding DWU/DUI offenses vary by state and an experienced attorney will know how best to ensure that your case has the most favorable outcome for you.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 05-15-2018 12:38 AM PDT

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