Understanding Felony DUI: Factors and Consequences

Learn about the factors that can raise a DUI from a misdemeanor to a felony offense

By Canaan Suitt, J.D. | Last updated on November 8, 2023 Featuring practical insights from contributing attorneys Stephen P. Pfeiffer and Mark Thiessen

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According to the National Highway Traffic Safety Administration (NHTSA), driving under the influence of alcohol is responsible for roughly one-third of all fatal car crashes in the United States on an annual basis. Car accidents due to drunk driving cause thousands of injuries every year as well.

Because of its danger to public safety, states severely penalize drunk driving. A standard first-time DUI is a misdemeanor, but various factors can raise a misdemeanor DUI to a felony DUI with harsher consequences.

This article explains those factors and gives insight into getting legal help if you’re facing criminal charges.

What Is a Felony DUI? 

Every state has laws against “drunk driving.” In some states, the criminal offense is called “driving under the influence” (DUI); in others, it’s called “driving while intoxicated” (DWI) or “operating while intoxicated” (OWI).

Regardless of the name, DUI charges are serious. You can be arrested on a DUI if your blood alcohol concentration (BAC) is over the legal limit (0.08 for drivers over 21 years old) or if you show signs of impairment from alcohol or drugs through a field sobriety test.

A standard first-offense DUI is a misdemeanor charge. On a misdemeanor conviction, you may face fines and court fees, jail time or probation, mandatory substance abuse education, driver’s license suspension or limited driving privileges, and installing an ignition interlock device (IID) on your motor vehicle.

Given various “aggravating factors,” a misdemeanor DUI can be elevated to a felony DUI. Practically, this means that the consequences of a DUI conviction are much more severe.

If you had a previous felony DUI, even though it took place 10 or 20 years ago, any subsequent DUI charge—even a standard first offense .08 DUI—will automatically be a felony.”

Stephen P. Pfeiffer

Factors That Can Lead to Felony DUI Charges

State laws differ, but common factors that elevate a DUI offense to a felony include a BAC well over the legal limit, prior DUI convictions, causing bodily harm or death to others, or the presence of minors in the car.

To illustrate how state DUI laws are similar but different, we asked two DUI attorneys — one in Texas and one in Virginia — to explain the factors that can result in a felony DUI conviction in their state.

Mark Thiessen, a criminal defense attorney in Houston who specializes in DUI defense, explains felony DUI factors in Texas:

  • If you have a child under 15 in the car (this is called a “state jail felony”);
  • If you cause somebody bodily injury in an accident—whether they’re in your car or someone else’s car—that turns it into “intoxicated assault,” which is a third-degree felony;
  • If you kill somebody, that’s “intoxicated manslaughter,” a second-degree felony;
  • If you have two prior convictions before your third DUI arrest, that third one becomes a felony.

Thiessen gives an example of how a standard DUI could become a felony: “Say in college you got convicted of intoxicated manslaughter and did some jail time or probation. You come out, and you’re a convicted felon. Years later, you get arrested for a simple DWI—say you run a stop light, and your breathalyzer shows a 0.09 BAC. Law enforcement charges you with a DWI. What would otherwise be a misdemeanor becomes a felony since you have a prior intoxicated manslaughter on your record.”

Is there a point where a prior conviction would no longer impact a new DUI arrest? In Texas and other states, no. “The prior DUI conviction could’ve been 20 years ago; it doesn’t matter.”

Stephen P. Pfeiffer, a DUI lawyer in Virginia Beach, explains the factors that can raise a DUI offense to a felony in Virginia:

  • It’s your third DUI in a period of 10 years;
  • You injure an individual (in Virginia, this is called “DUI maiming”);
  • You kill someone (in Virginia, this is called “DUI manslaughter”)

As in Texas, it doesn’t matter how long ago your previous felony DUI was in Virginia. “If you had a previous felony DUI, even though it took place 10 or 20 years ago, any subsequent DUI charge—even a standard first offense .08 DUI—will automatically be a felony.”

The prior DUI conviction could’ve been 20 years ago; it doesn’t matter… What would otherwise be a misdemeanor becomes a felony since you have a prior intoxicated manslaughter on your record.

Mark Thiessen

Consequences of a Felony DUI 

Criminal penalties vary by state, but potential consequences associated with a felony DUI conviction include:

  • Mandatory jail sentence; 
  • Monetary fines in the thousands of dollars;
  • Driver’s license revocation;
  • Loss of professional licenses;
  • Mandatory treatment and substance abuse education;
  • Installation of an ignition interlock device (IID);
  • Negative impacts on employment and future opportunities.

Felony DUI penalties impact every area of life, says Thiessen, and the law and science behind DUI charges are notoriously complex and difficult to prove. If you’re facing either misdemeanor or felony charges for a DUI/DWI, it’s essential to seek legal advice and representation from an experienced DUI defense lawyer who can walk you through every step of your DUI case.

Use the Super Lawyers directory to start your search for a DUI lawyer by your location. For more information about this legal area, visit our DUI/DWI law overview and explore our related legal content.

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