DUI Charged As a Felony

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 Can a DUI/DWI Charge Be a Felony?

Driving under the influence of alcohol or drugs (DUI) and Driving while intoxicated by alcohol or drugs (DWI), commonly referred to as” drunk driving,” is a criminal offense in every state. The goal of the laws that make driving under the influence is to punish and deter this dangerous behavior.

In most states, some aspects of drunk driving laws also try to provide help with drug or alcohol problems to those who are willing to seek help. This is one of the reasons why most states have a range of possible charges and punishments for drunk driving, from minor misdemeanor offenses to serious felonies that carry significant punishments.

How Many Accidents Are Caused By Drunk Driving?

According to the Centers for Disease Control, around 10,000 people are killed due to drunk driving every year in the U.S. This accounts for almost 30% of all traffic-related deaths.

Drunk driving is still the number one cause of death on American roads and highways. Alcohol and drugs, in any amount, negatively affect a person’s ability to judge situations accurately and react quickly when behind the wheel.

When Is My DUI Charged as a Misdemeanor?

Every state has its own laws which dictate how drunk driving offenses are charged and what punishments come with a conviction. In most states, first-time offenses in which the perpetrator has a blood alcohol concentration (BAC) that is over the per se illegal level of 0.08% are charged as misdemeanors. If convicted, the perpetrator usually has to pay a fine and sometimes spend a short time in jail. There may be additional consequences.

For example, a first-time conviction of per se DWI in New York is punishable by a maximum fine of $1,000. There is an additional “surcharge” of $400. Furthermore, the perpetrator can be sentenced to a maximum of 1 year in jail. Their driver’s license can be revoked for a minimum of 6 months. They must then have an ignition interlock device (IID) in their car for as long as 1 year. A first-time per se DWI is charged as a misdemeanor.

The per se illegal level of 0.08% is the level at which a person is presumed to be intoxicated and their driving impaired. A person can still be charged and convicted of drunk driving if their BAC is lower than 0.08%, but the prosecution would have to prove that the person’s driving had in fact been impaired.

They would do this by producing evidence at trial that shows impaired driving. For example, if the perpetrator fails field sobriety tests while being filmed on a patrol car’s dash cam, the video would be evidence to show that the perpetrator had been driving while impaired.

Many states where marijuana has been legalized have adopted laws to address the growing problems of drugged driving. A few states have passed laws that specify the exact limits for the presence of certain drugs in the system if a person is to be considered guilty of drugged driving.

As for driving while impaired by drugs, most states have passed zero-tolerance laws, meaning a person can be found guilty of drugged driving if they have any detectable level of certain drugs in their system.

Tests for the presence of drugs in a person’s system do not produce results that are as clear and reliable as tests for BAC. The laws that address drugged driving are, therefore, sometimes more difficult to enforce and prosecute. Of course, the law is different in different states.

In addition to laws that make it a crime to drive while impaired by drugs, many states have two basic laws that they use to prosecute drug-impaired driving:

  • Zero Tolerance: Under zero tolerance laws, it is illegal for a person to drive with any measurable amount of drugs specified in the law in their body. These laws are most appropriate for controlled substances, i.e., illegal drugs, instead of prescription and over-the-counter drugs.
    • The rationale for zero tolerance laws that apply to controlled substances is that if possession or use of a drug is illegal, then it is reasonable to prohibit driving after the drug has been possessed and used. Sixteen states have zero-tolerance laws for specified drugs;
  • Per Se Laws: Per se laws make driving illegal with amounts of specified drugs in the body that exceed legally-defined limits. Five states have adopted per se laws for certain identified drugs. They work like per se laws for drunk driving;
  • Marijuana Drug-Impaired Driving Laws for Marijuana: Seventeen states have zero tolerance or non-zero per se laws for marijuana, specifically for THC or its metabolites.

The court may also order the individual to attend alcohol treatment and education courses, perform community service, or use an ignition interlock device (IID), usually a breathalyzer, for a number of months. In some states, a person may be able to get a first-offense DUI expunged from their criminal record if they are not charged again for a certain amount of time after their conviction, as well.

What Determines If My DUI Charge Is a Felony?

In most states, if certain circumstances are present when a person is stopped and arrested for DUI, then the DUI can be charged as a felony criminal offense and comes with much more serious penalties. Some of the circumstances that lead to a person being charged with felony DUI are as follows:

  • Enhanced BAC DUIs: If a person’s BAC level is above a certain percentage, 0.15%, in many states, they may be charged with a more serious felony offense and face felony punishment. This is true even if the driver is a first-time offender;
  • Death or Bodily Injury Enhancements: If a perpetrator causes an accident that results in serious bodily injury or death to another person, they are charged with a felony DUI offense. There may also be separate criminal charges against the offender, e.g., for manslaughter;
  • Prior Convictions: If a person has a prior DUI conviction on their record, the law usually dictates that the person be charged with a felony offense with more severe punishments. Many states have a “look back” period for counting prior convictions. After the “look back” period has passed, a person’s criminal record is wiped clean. This is not an insignificant amount of time, though, as most states require that a driver keep a clean record for five, seven, or even ten years before the charging clock resets.

New York state has a specific felony driving while ability impaired (DWAI) charge for drivers who commit a DWAI offense within 10 years of a prior conviction for DWAI or convictions for an alcohol-related offense other than DWAI. The perpetrator can be charged with various classes of felony offenses in New York.

In New York, the class of felony with which a person is charged depends on the number of prior convictions and the time frame in which they occurred. If two or more offenses occur closer in time to one another, rather than farther apart in time, the new offense is considered to be more serious. The more priors they have, the more likely they are to be charged with a felony offense.

In New York, another felony charge is that of felony aggravated DWI. Like felony DWI, felony aggravated DWI is the charge for perpetrators with prior alcohol-related convictions other than DWAI. A driver who commits aggravated DWI, driving with a BAC of 0.18% or higher, within 10 years of a prior conviction or convictions for an alcohol-related offense other than DWAI is charged with felony aggravated DWI.

In California, 3 circumstances can lead to a DUI being charged as a felony:

  • Fourth Offense in 10 years: The DUI offense is the fourth one in a 10-year period,
  • One Prior for Felony DUI: The perpetrator has at least one prior conviction for felony DUI; or
  • Accident: The intoxicated driver causes an accident in which another person suffers bodily injury or death.

Otherwise, a drunk driver is charged with a misdemeanor DUI offense even until they commit their third DUI offense.

What Are Possible Punishments for a Felony Dui?

Felony DUI charges generally come with more serious consequences than misdemeanor DUI offenses. A person convicted of a felony DUI offense faces a longer possible jail term or even time in state prison. The time in state prison could be years in the worst cases. Perpetrators with prior convictions may face up to ten years in prison. Perpetrators who commit intoxication manslaughter or similar charges may face even more.

The fines for felony DUI convictions can be in the thousands of dollars. California’s fine for a first felony DUI offense is $1,015 to 5,000. In addition, the perpetrator must make financial restitution to the injured people. They must have an IID in their car for 1 year and attend DUI school for 18 or 30 months.

New York has similar penalties for felony DUI. Those convicted of felony DWI in New York also have their driver’s license suspended or revoked for a long time. And when their license is reinstated, they must install an ignition interlock device for another long period. Lastly, the sentencing court may order the person to complete a drug or alcohol addiction treatment program.

DUIs are expensive in financial terms as well. Even dealing with a misdemeanor charge will cost thousands, which is multiplied by each higher-charged degree. A person may lose their driver’s license for years or even permanently in some circumstances.

Do I Need the Help of a Lawyer for My Felony DUI Charge?

A DUI conviction can seriously affect your life. If you are arrested or charged with a drunk driving offense, you need to seek the help of a DUI lawyer as soon as possible.

They can advise you of all your rights and help plan the best legal path forward for your situation, whether challenging the evidence or negotiating a plea deal. You do not want to deal with a drunk driving charge alone.


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