Aggravated Misdemeanor – Special Class of Georgia Misdemeanor

An aggravated DWI – often written aggravated DUI – is a drunk driving charge with enhanced penalties. An aggravating factor drives the increase. Common factors include a prior conviction, a high blood alcohol level, a child in the car, or an injury crash. Georgia does not use the phrase aggravated DUI in its code. Georgia instead punishes an aggravated drunk driving case as a misdemeanor of a high and aggravated nature. That class raises the maximum fine to $5,000. It also allows up to 12 months of confinement under the high and aggravated misdemeanor statute.

By: William C. Head, DUI Lawyer Atlanta, and Drunk Driving Book Author

An aggravated misdemeanor in Georgia is not limited to repeat DUI cases. Most cases in this class are still driving under the influence cases. Most writing about criminal penalties focuses on misdemeanor versus felony. Georgia lawmakers had a narrower goal for the aggravated misdemeanor. Lawmakers meant to control how Georgia judges sentence drunk driving cases in GA. This special class of offense raised the maximum fine from $1000 to $5000. It also adjusted the time a person must stay in the county jail. Iowa, for example, calls its version an aggravated misdemeanor. Georgia law uses the term high and aggravated instead. This short YouTube video by Atlanta DUI Lawyer Bubba Head covers the high and aggravated misdemeanor category of Georgia crimes.

What Makes a DUI Aggravated?

Georgia drivers often ask what makes a DUI aggravated in this state. No Georgia offense carries that title. Instead, certain facts push a DUI case into a harsher sentencing class. Other facts add separate charges on top of it.

Prior DUI convictions. Under Georgia's DUI statute, a third conviction within ten years is punished as a high and aggravated misdemeanor. The court measures those ten years from the dates of the prior arrests that led to convictions. A fourth or later DUI within that same ten-year window may be charged as a felony.

A child under 14 in the car. Georgia's DUI statute makes this the separate offense of endangering a child. The state may charge one count for each child in the car. Two children can mean two extra counts on the accusation.

A crash causing serious injury or death. Georgia does not label these an aggravated DUI. The state charges them as separate felonies. Serious injury by vehicle is one such felony. Homicide by vehicle is another.

Underage and commercial drivers. Drivers under 21 face a 0.02 limit under the same DUI statute. Drivers of commercial vehicles face a 0.04 limit. A result well below the adult 0.08 limit can still support a conviction for these drivers.

A very high blood alcohol result. Many other states treat a high reading as aggravated DWI. Georgia has no separate statute tier for it. A high number may still affect sentencing, license penalties, and plea talks. The county and the judge shape that effect.

Aggravated DWI in Other States vs. Georgia DUI Law

States label drunk driving differently. Some use DWI, some use OWI or OVI, and Georgia uses DUI. Several states also have an offense titled aggravated DWI or aggravated DUI. Those statutes usually key on a high breath or blood test result. A repeat offense or a minor passenger in the car can also apply.

That is why the phrase reaches Georgia drivers who were never charged with it. The Georgia version is simple. Every drunk driving case here is charged under the Georgia DUI statute as driving under the influence.

Aggravating facts do not change the name of the charge in Georgia. They enter in two other ways. First, they can move sentencing into the high and aggravated misdemeanor class. Second, they can add separate felony counts for injury, death, or other conduct.

Labels and limits in other states change over time. Lawmakers there amend their codes. Another state's rule may not apply to a Georgia case. A Georgia arrest brings a citation that says DUI. The aggravating facts show up in the sentencing exposure and the license penalties, not in the title of the charge.

The Creation of a High and Aggravated Misdemeanor in Georgia Laws

Georgia did not pass a felony DUI statute until 2008. That law keyed on the number of prior DUI GA convictions. For decades before that, some drivers piled up dozens of drunk driving convictions. Each one drew a slap on the wrist misdemeanor sentence. A strong bloc of lawmakers would not make a third DUI in Georgia a felony. So lawmakers took another route in 1990. They amended the DUI statute so that a third conviction is a misdemeanor of a high and aggravated nature. That change tied a 3rd DUI offense in Georgia to the tougher sentencing ceiling already on the books.

Appellate Case Describes the Change in Georgia Misdemeanor Laws

This case matters because it shows a clear choice by lawmakers. Georgia lawmakers built the high and aggravated misdemeanor class for repeat DUI offenders. That class served instead of a felony statute. The passage below explains how the shift happened. Readers should treat it as history, not as a statement of the penalties a Georgia court would impose today.

This passage comes from a Georgia Court of Appeals case, State v. Bangley. The passage explains this small part of Georgia's legal history. It also shows how Georgia law defines an aggravated misdemeanor:

Prior to 1990, OCGA § 40-6-391(c) provided that “every person convicted of [DUI] shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as follows….” Ga. Laws 1985, p. 758, § 17. Subparagraphs (1), (2), and (3) provided for escalating levels of mandatory minimum punishment, depending upon the number of convictions within the previous five years measured from the dates of previous arrests leading to convictions. Prior to 1990, though, even the most severe possible punishment for repeat violations of OCGA § 40-6-391 within five years did not exceed the maximum allowable for misdemeanors generally. See OCGA § 17-10-3. In 1990, the Georgia General Assembly amended OCGA 40-6-391(c) to provide that “[e]very person convicted of [DUI] shall, upon a first or second conviction thereof, be guilty of a misdemeanor and, upon a third or subsequent conviction thereof, be guilty of a high and aggravated misdemeanor and shall be punished as follows….” The chief difference is that the maximum punishment for a third or subsequent offense within five years now can be the maximum for high and aggravated misdemeanors. OCGA § 17-10-4.

State v. Bangley, 209 Ga.App. 208 (1993)

Two things have changed since that opinion. The lookback is now ten years rather than five. It still runs from the dates of the prior arrests that produced convictions. Georgia also added a felony DUI law in 2008. That law covers a fourth or later conviction inside the window. Older opinions quote statute text that lawmakers have since changed. The subsections quoted above are not current law.

Where Can I Find the High and Aggravated Misdemeanor Definition in GA?

The unusual Georgia law on aggravated misdemeanors is worth reading. The statute gives a fuller definition than the Bangley excerpt. The real effect is stark. A person serving a long jail sentence on a third DUI offense must serve 26 days of every 30 days ordered.

The statute takes away "good time" credit. Jails often grant "2 for 1" days of credit, or even "3 for 1" when an inmate agrees to do physical work. Most Georgia jails offer these credits to people serving a misdemeanor jail sentence. But the high and aggravated misdemeanor laws in GA bar those programs.

The math is what clients feel. A 12 month sentence shows the effect. Regular credit rules may let a cooperative inmate serve only a fraction of that time. A person sentenced in this class earns no more than four days per month of earned time. The aggravated misdemeanor statute sets that cap. That cap is where the 26 of every 30 days comes from. A year-long sentence stays close to a full year behind bars.

This jail credit difference, not the fine, usually matters most to a client and a family. Whether a case even reaches this tier depends on how prior convictions are counted. The ten-year lookback in the DUI statute controls that count. A record that looks like a third DUI on paper does not always qualify. The lookback runs from arrest dates. Pulling the certified court records is the first step in these cases.

Is There Such a Thing as a 1st Offense Aggravated DUI in Georgia?

The phrase 1st offense aggravated DUI comes up often after a first arrest. The honest answer is no, at least not as a sentencing class. A first Georgia DUI conviction within ten years is punished as a regular misdemeanor under Georgia law. That offense is not a misdemeanor of a high and aggravated nature. The high and aggravated class attaches on a third conviction inside the ten-year window.

A first offense can still carry aggravated exposure. The state may add a DUI child endangerment count. That count applies if a child under 14 rode in the car. A wreck that injures someone can support a separate felony charge. Fleeing police or leaving the scene brings its own counts and its own penalties. A breath or blood test refusal also triggers license penalties. Those penalties run through the administrative license suspension process.

Outcomes depend on the county, the judge, the other charges, and the driver's record. A lawyer should read the actual accusation before anyone assumes a sentencing range. The charging document controls that range. The label a website or a friend uses does not.

Penalties for a High and Aggravated Misdemeanor DUI in Georgia

The high and aggravated misdemeanor statute sets the ceiling for this class of offense. The fine may not exceed $5,000. Confinement may not exceed 12 months in the county jail or a county correctional institution. The statute states the rule plainly:

A person who is convicted of a misdemeanor of a high and aggravated nature shall be punished by a fine not to exceed $5,000.00 or by confinement … for a term not to exceed 12 months, or both.

A regular Georgia misdemeanor works differently. Under the general misdemeanor penalty statute, the fine tops out at $1,000. The high and aggravated class raises the maximum fine fivefold. The statute also lets the sentencing court modify or probate the sentence later. But the court may never raise the fine or extend the jail term.

The § 17-10-4 ceiling is only part of the picture. The DUI-specific rules come from the DUI statute and related Title 40 provisions. A third DUI conviction within ten years carries a mandatory minimum jail term. A court cannot fully probate that term. The conviction also carries a mandatory minimum fine. Courts order community service, a clinical evaluation, and any treatment ordered. Judges add DUI school and a term of probation.

License penalties run separately through the Department of Driver Services. A repeat offender may lose a Georgia driver's license for a long revocation period. Habitual violator status and an ignition interlock requirement may also apply.

The number on the sentencing sheet is rarely the full cost. Surcharges, court fees, probation fees, and program costs add up fast. Those items can push the amount owed well above the base fine. Amounts and terms vary by court. Clients should ask a lawyer what judges in their county often impose.

Speak With a Georgia Aggravated DUI Defense Attorney

DUI charges exposed to the high and aggravated sentencing class turn on two questions. How do the prior convictions actually count under the ten-year lookback? And can the aggravating facts be challenged? Records answer both questions. Guesses do not.

William C. Head, PC has defended driving under the influence cases in Georgia courts for decades. Mr. Head has written Georgia DUI defense materials used by other lawyers. Our lawyers also know how metro Atlanta state and municipal courts handle repeat-offender sentencing.

Our lawyers answer client calls 24 hours a day. Call (404) 567-5515 for a free consultation. Four details help most: the citation, the arrest date, the county, and the dates of any prior DUI arrests. Those details let us give you a clear picture of your sentencing exposure.

No lawyer can promise an outcome. Results depend on the specific facts and law of each case. We handle cases across Georgia. Sometimes a local lawyer is the better fit. We can then refer you to defense lawyers elsewhere in Georgia or in another state.

Other insights on this website:

• Choosing a Georgia DUI lawyer
• Leaving the scene of an accident to avoid DUI
• DUI attorney fees
• What a Georgia DUI lawyer costs

Frequently Asked Questions About Aggravated DUI in Georgia

What is an aggravated DWI, and does Georgia have that charge?
An aggravated DWI is a drunk driving charge with enhanced penalties. An aggravating factor causes the increase. Georgia has no offense by that name, so no one here faces an aggravated DUI charge under that title. Georgia charges every drunk driving case as DUI under its own statute. The aggravating facts raise the sentencing class or add separate counts. They do not rename the charge.

What makes a DUI aggravated in Georgia?
Prior convictions matter most. A third DUI conviction within ten years is sentenced as a high and aggravated misdemeanor under Georgia's DUI statute. Other aggravating facts include a child under 14 in the car and a crash causing injury or death. The lower blood alcohol limits for underage and commercial drivers also count.

Can a 1st offense aggravated DUI happen in Georgia?
A 1st offense aggravated DUI does not exist as a sentencing class. A first conviction within ten years is a regular misdemeanor under Georgia law. A first arrest can still carry added exposure. A child endangerment count, a felony injury charge, or other offenses may be charged alongside the DUI. The accusation shows what is actually charged.

How much jail time does a high and aggravated misdemeanor DUI carry in Georgia?
The ceiling is 12 months in jail under Georgia law. The fine may reach $5,000. A third DUI conviction within ten years also carries a mandatory minimum jail term. A court cannot fully probate that term. The actual sentence depends on the county, the judge, and the facts.

Why does a high and aggravated misdemeanor DUI sentence mean serving more days in jail?
Regular misdemeanor inmates can earn large good time credit in most Georgia jails. Georgia law caps earned time at four days per month for this class of offense. That cap works out to serving about 26 of every 30 days ordered. The same 12 month sentence therefore means far more actual jail time.