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Is a DUI a Felony in GA?

By: William C. Head, Lawyer for DUI Felony Charges and Misdemeanor DUI Offenses

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Three initial items of information are needed for a criminal defense lawyer to assess a DUI felony or misdemeanor case in Georgia. A DUI lawyer hired to defend a drunk driving case always must initially look at state law, the circumstances of the arrest, and the driver’s prior driving record to determine if a DUI is considered a felony.

Georgia counts any and all prior impaired driving convictions, including a possible lesser offense of DWAI (driving while ability impaired) from Colorado or New York.

Fortunately, Georgia uses a 10-year look back period for criminal DUI penalties, and a 5-year look back for imposition of driver’s license suspension or revocation. What state DUI laws apply for a California DUI arrest will not be the same as a Georgia DUI, Texas DWI, or a DUI in Arizona. Other issues, such as the State prosecutor being able to secure certified documents showing a prior out-of-state conviction may assist a person to avoid a felony DUI in GA.

7 Ways That a DUI Is a Felony

In general terms, these are the 7 ways that a DUI is a felony under most state’s drunk driving laws:

Felony DUI in Georgia

  1. Repeat offenders, such a 4th DUI offense in 10 years in GA or 3rd offense DUI, lifetime in MI;
  2. A serious bodily injury, by a DUI accident, involving a pedestrian or occupied vehicle;
  3. Homicide by vehicle of a pedestrian or any other person (riding in your vehicle or occupying or driving another motor vehicle);
  4. Some states, including Georgia, have felony laws concerning items in the car (if possession of those items is a felony);
  5. Having child in the car — or multiple children in a vehicle, with each child being a new child endangerment crime that creates a new offense for EACH child that is below the applicable state law age (usually under age 14);
  6. If you are driving in violation of your current state habitual violator status, this is likely a new felony offense;
  7. An interstate compact violation by being a repeat DUI offender, and have a probation sentence exceeding one year. This controls a person’s ability to leave the state where he or she was sentenced, without permission of BOTH the outgoing state and the incoming state. This determination is controlled by the Interstate Compact law. (www.interstatecompact.org).

What is Felony DUI?

Once more, each state defines WHEN DUI misdemeanor or felony charges will apply, but if you are facing a DUI felony, the common factors of such a charge is that you ARE entitled to a jury trial and you ARE facing more than 12 months in a state prison, as a general rule. The state of New Jersey, wanting everyone charged with a DWI to be found guilty, has refused to enact a felony driving while intoxicated law, so that no jury trial is available to citizens facing drunk driving charges in that state!

Other DUI penalties for felony DUI will be outlined by state law in the venue of the DUI arrest, but one consistent DUI penalty is losing the right to drive for an extensive time period, for driver’s license suspension or license revocation, depending on the state of licensure.

When Is DUI Felony Going to Be Charged?

Prosecutors take any police evidence from an arrest for DUI in Georgia, when a person is facing an accident-related felony DUI with serious injuries or a fatality, and decide if either a DUI or reckless driving can be the predicate for a serious driving offense supporting a felony vehicular homicide or serious bodily injury indictment in Georgia.

To counter this, his or her DUI lawyer may try to have the trial judge instruct jurors of a “lesser included offense,” so that the jury has the option to convict of a simple traffic offense (e.g., following too closely, or running a red light) which creates a misdemeanor sentence and not a felony sentence. But, if the jury convicts on drunk driving, the drunken driving felony offense of homicide by vehicle or serious injury by vehicle would be sentenced.

By way of example, assume that the BAC level of your DUI blood test was low, like a 0.058, the jury could opt to not convict of the DUI vehicular homicide in the first degree, under Georgia DUI laws. Instead, the courts could convict on second degree vehicular homicide, for a non-serious traffic offense, like failure to yield or not fully stopping at a stop sign. This is one of many DUI defense strategies your DUI attorneys may use to protect you from having a DUI felony.

Can a DUI Be a Felony?

Prior sections have covered multiple aspects of this question, including a fourth offense DUI in 10 years. Even for a first DUI, all Georgia DUI lawyers know that the special police personnel like the Georgia State Patrol SRCT teams, are well-trained when a death or serious bodily injury in a traffic offense occurs. The law enforcement officer should not merely issue a traffic ticket when visible serious injuries or a fatality exists.

Best DUI Lawyer Georgia

Plus, the best criminal defense lawyers know that ONLY your name and address are required to be disclosed, and NOT ANOTHER WORD, without your DUI attorney. The right to remain silent, under the 5th Amendment, and the right to counsel under the 6th Amendment can be GIVEN UP, if you do not keep your MOUTH CLOSED.

Police are trained to ask “investigatory” questions like these:

  • Have you had anything to drink?
  • Have you taken any medications today?
  • When did you last smoke marijuana?

All questions by police personnel or EMT’s are designed to INCRIMINATE you, and to give the officer “articulable suspicion” of a DUI. Once a person talks, the likelihood of the driver in a DUI fatality or serious injury accident going to jail or state prison, for driving under the influence of alcohol or drugs, increases dramatically.

Can Police Get a Warrant for My Blood, for Implied Consent Testing?

If the driver refuses to be tested by a breath alcohol test, he or she will likely be subjected to a forcible DUI blood test, pursuant to a search warrant. Georgia passed new implied consent provisions in 2006, to accommodate forcible blood draws. However, DUI lawyers have been able to successfully attack the legitimacy of some non-consensual blood extractions, if fatal flaws in the police affidavit or judicial authorization can be uncovered.

Call our Award-Winning DUI Lawyers Today – 404-567-5515

You only get ONE Chance to Win, so why not call the most highly-awarded DUI attorney in GA, William C. “Bubba” Head, or his law partners? The call and initial consultation are FREE.


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