Is a DUI a Felony or Misdemeanor?

As peculiar as it may seem, the seriousness of drunk driving – legally speaking – is extremely relative. Growing up, kids hear all about how drunk drivers are evil from D.A.R.E. and M.A.D.D., as well as local first responders and police departments – we all know that drunk driving is preventable, idiotic, and dangerous. But under the law, the charges levied against a drunk driver can vary from an absolute slap on the wrist to felony charges that carry lengthy prison sentences.

So, to answer the question of is a DUI a felony or misdemeanor, we have to look at several factors. Much of this relativity comes from geography: the laws against drunk driving are different in every state. But also, the facts of the offense will greatly determine what the punishment is: a first-time offense, at barely over the legal limit, with no resulting car accident or injuries to anyone, will likely mean misdemeanor charges (the slap on the wrist).

On the other hand, a repeat offending, extremely-over-the-limit driver, who injures or kills someone in an accident that occurred while the driver was drunk, is likely going to face felony charges and spend much of the rest of his or her life in prison.

Though the laws will vary greatly from state to state, there are some commonalities in the laws of most states that determine how serious the legal consequences of drunk driving will be.

First-time offender, with no aggravating circumstances: misdemeanor or less is likely.

Look, everybody makes mistakes. Courts and the law understand this, and if no one else was hurt by your drunk driving, the odds of you catching a break for your first offense are pretty high, no matter where you live.

The "Baby DUI" Deal

For example, in California, a “wet reckless” plea bargain, also known as a “baby DUI,” is available as a deal for first-time offenders. It comes with a reduced fine, reduced license suspension, and no jail time. It is a misdemeanor charge, but it is less serious than the normal DUI charge, which technically requires jail time (typically served as work release). Note that the “wet reckless” is priorable as a DUI, which means if you get another DUI charge within ten years, that offense will be treated as a second DUI.

If you have a particularly aggressive and competent defense attorney, and your offense was very mild (you were barely over the limit and you were not driving dangerously), you might even walk away with a reckless driving charge (again, a misdemeanor in many states) or if you are really lucky, a reduced charge to a noncriminal infraction. The willingness of a prosecutor to bargain down to a noncriminal infraction will vary by state and the facts of your case: in more rural and Midwestern states, the laws do seem more lenient and the consequences are less severe as a result.

What If You Succeed In Reducing The DUI Charge?

A reduction to reckless driving or a non-criminal infraction (a ticket, essentially), is a huge win – not just for the current offense, but just in case you get another DUI charge down the line. In California, as in many other states, these charges cannot be priorable as a DUI, which means any subsequent DUI charges will be treated as a “first” offense.

All of the above comes with a very big asterisk: you won’t get a sweetheart deal if any aggravating circumstances are present: driving with an extremely high blood alcohol content level (there is no exact number, but being double the limit probably qualifies), getting into an accident while you are driving drunk, or injuring someone while driving drunk are all examples of aggravating circumstances that will make any deal unlikely.

Repeat offender: multiple convictions can lead to felony charges.

It is pretty universal across all the states that the more convictions for driving drunk that you have, the more serious the penalties will be. Yes, that is common sense and it applies to really any crime, but it bears worth repeating here.

A second DUI probably will not be a felony, but will carry more severe penalties than a first charge. A third DUI might not be a felony either, though it varies by state. Get much further beyond that and you are almost certainly going to be looking at felony charges.

For example: until late 2018, Pennsylvania had some of the most lenient DUI laws in the country: no matter how many repeat offenses you had, DUIs were considered a misdemeanor absent aggravating circumstances. A change in law that year made all fourth-time offenses felonies, and high BAC (twice the legal limit) third offenses felonies. Many other states, including California, make the fourth DUI offense a felony as well.

Escalating To A Felony Charge - What To Do?

For repeat offender felonies, many states leave it to the prosecutor’s discretion to decide whether a felony charge is warranted. After reviewing the case, the prosecuting attorney can decide whether to bring the case as a misdemeanor charge or a felony. In California, these are called “wobbler” offenses, though the same discretion to decide on charges is commonplace no matter what state you live in.

Hiring an experienced, aggressive attorney to defend you can make a big difference on a wobbler. Many prosecutors, like a used car salesman, will start aggressively with the charges, bringing the most serious charges possible in order to play hardball in negotiations over a possible plea deal. They know that if they start with a felony charge, you’ll be more likely to accept a serious misdemeanor offense as a “deal” rather than risk a life-altering felony conviction at trial.

You need an experienced negotiator as your defense counsel to provide a realistic assessment of what charges are available and how much your situation can be improved through bargaining with the prosecutor. Your defense attorney can also weigh potential defenses – whether that means attacking the evidence against you, or pursuing an oddball, high-risk defense like the “low carb” defense or a defense of necessity – against the potential plea deals offered by the other side.

Other aggravating circumstances that can lead to a felony charge.

As we alluded to earlier, you can get a felony DUI charge before your third or fourth DUI conviction: you just have to injure or kill someone. A DUI with aggravating circumstances, such as a resulting accident, injury, or death, will result in felony charges in most states. In fact, if death results, you might face both felony DUI charges and manslaughter or murder charges, depending on local law.

Again, to use California as an example: a 1981 state Supreme Court case held that murder charges could be brought in some cases where a death results from a DUI accident and the driver was a repeat offender. Missouri, like the vast majority of other states, allows manslaughter charges for those who kill while driving drunk, no matter how many prior DUIs they may have. The manslaughter charge, again, is in addition to the felony DUI charges, so you’ll likely end up serving a lot of time if someone dies as a result of your drunk driving.

Felony, misdemeanor, or ticket — you don’t want it on your record.

DUIs are serious business – you don’t need us to tell you that. (M.A.D.D. and D.A.R.E. already have.) If you are convicted of driving drunk, you’ll carry that criminal record – and driving record – with you for years, if not forever. Every job, every school, and every professional license application you submit will see the offense. If the DUI conviction is a felony, it will make you ineligible for many professions, plus you’ll lose many other rights, such as the right to vote and the right to own firearms.

It follows you, in other words, and if you do not fight back now, you may end up regretting it when it costs you a dream career move, or a spot at a prestigious school. Call Off The Record today, connect with the right lawyer, and keep your record clean!

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