By: Atlanta DUI Lawyer William C. Head
Thousands of people, upon release from jail, search the Internet for phrases like, “Is a DUI a felony?” or “Is a DUI a misdemeanor or a felony?” Because almost every state’s DWI-DUI laws call for custodial arrest of any person charged with driving under the influence, many citizens arrested for drunk driving are convinced that their arrest must be a felony.
The experience of being cuffed, placed in a police transport, and taken to jail is both emasculating and traumatic.
Below, the most common questions on this topic get answered, by a DUI lawyer who has been a drunk driving book author for over a quarter of a century.
The legislative branch of government writes laws in each state. Those legislators decide which situations and circumstances will escalate a misdemeanor DUI to make them DUI felonies. So far, no state has passed a first offense DUI as being a felony, absent other aggravating circumstances or factors.
The three most common ways for felony DUI charges to occur are:
When Is a DUI a Felony?
As covered by the previous answer, your state laws (where you are driving) control when a driver is going to be charged with DUI felony.
Using the example of a school bus driver being held to a higher standard in GA, if a South Carolina school bus coming to a Georgia venue to play a high school football “challenge” game is pulled over for a traffic ticket, and the driver is arrested for DUI in Georgia, this special felony law in Georgia applies. This is despite the fact that the State of South Carolina may not have the same law making a school bus driver subject to DUI felony punishment.
On a similar note, over a dozen states in the USA criminalize an implied consent law “DUI refusal,” if (after a lawful arrest) the driver does not agree to submit to the state-administered breathalyzer test or DUI blood test requested. If that driver has prior DUI convictions, some states (e.g., North Dakota, Minnesota, and Iowa) may impose felony punishment for the DUI refusal, regardless of whether driver is later convicted of driving while intoxicated.
The lesson here is that a person who chooses to drink and drive in another state is subject to being criminally sanctioned by the criminal laws of that state, including Draconian implied consent law provisions calling for jail time or state prison time, for certain repeat DUI-DWI offenders. Therefore, asking “is a DUI a felony” depends largely upon your prior criminal history and the state in which you are traveling.
Is a DUI a Felony?
Taking into account the lessons learned from the first two answers, this question has already been partially answered. Once more, always initially look at state law to determine is a DUI considered a felony. What applies in a California DUI will not be the same as a Georgia DUI, Texas DWI, or a DUI in Arizona.
In general terms, these are the 6 ways a DUI is a felony:
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 state prison, as a general rule.
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.
Is DUI Felony?
In most states, when a person is facing an accident-related felony DUI, 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) which creates a misdemeanor sentence and not a felony sentence.
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 laws, and instead, convict of second degree vehicular homicide, for a non-serious traffic offense, like following too close. This is one of many DUI defense strategies your DUI attorney may use to protect you from having a DUI felony.
Can a DUI Be a Felony?
Prior sections cover multiple aspects of this question. All DUI attorneys know that police are well-trained when a death or serious bodily injury in a traffic offense occurs, and that an officer should not merely issue a traffic ticket. Police are trained to ask “investigating” questions like these:
All questions are designed to INCRIMINATE you, and to give the officer “articulable suspicion” of DUI. Once a person talks, the likelihood of the driver in a DUI fatality or serious injury accident going to jail, for driving under the influence of alcohol or drugs increases.
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.
The foregoing sections have educated you to know the rare, but possible, scenarios for felony DUI indictment. A driver involved in an accident causing serious physical injury to another, or any death, should remain silent and NOT TALK, and only give his or her NAME and ADDRESS.
Until an arrest is made, anything the person says is not “protected” under the Constitution. In the quest to uphold DUI death convictions, most state appellate courts have found a way to uphold a felony DUI conviction involving serious injury or death.
Remember that Miranda rights are generally not required until you are arrested and cuffed, when it comes to police questioning at an accident scene. Remaining silent is the best universal advice from a DUI defense lawyer. If police collect your blood using a warrant, this search warrant may NOT be legal, if not based on probable cause to suspect driving while intoxicated.
Is getting a DUI a felony? Not in most drunk driving cases, as is covered above. Absent a car accident with injuries or death to another person (in your vehicle, another vehicle or as a pedestrian), the answer to “is your first DUI a felony?” is NO.
Hire an Expert Drunk Driving Lawyer for Misdemeanor or Felony DUI
Drunk driving book author William C. “Bubba” Head, DUI lawyer in Atlanta, is a 40-year veteran Atlanta criminal defense lawyer and Board-Certified drunk driving defense expert attorney. He and his criminal justice attorney partners operate a DUI law firm in Atlanta, Georgia. Bubba Head, or one of his other law partners, who are Atlanta DUI lawyers, can assist you on a repeat DUI offense or serious bodily injury or DUI fatality case.
Atlanta DUI attorney Larry Kohn, Atlanta DUI lawyer Cory Yager, or criminal defense attorney Atlanta William “Bubba” Head can help you with a driving while intoxicated case. Mr. Kohn and Mr. Yager were each invited to write chapters for a national drunk driving defense book published on how to get out of a DUI. This book was published in 2016. When you hire any of the DUI law firm partners, you have one of three Super Lawyers for 2017.
To learn more about DUI Penalties in general, click on this link.
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