Types of Felony DUI in GA – When Is a DUI a Felony?

By: William C. Head, Criminal Defense Attorney Atlanta and ABA Board-Certified DUI Attorney Atlanta

Types of Felony DUI in Georgia Bubba Head

In America, only a few “categories” of driving under the influence cases are charged as felony DUI. Each state crafts its own DUI laws, and Georgia DUI laws are dramatically different from many other states, like Arizona. You must get state-by-state information on felony DUI-DWI definitions, and not just ask “Is DUI a felony in GA?”

Even the DUI laws of neighboring states like North Carolina, Tennessee, South Carolina, Florida, and Alabama have drastically different DUI consequences in many of their statutory laws and driver’s license suspension penalties. The Legislature writes the laws in such a way that the descriptive names ultimately become acronyms for drunk driving in that state (e.g., operating a vehicle under the influence became known as OVI in Ohio, and operating while intoxicated became OWI in Wisconsin and Michigan.

This applies to both DUI felonies and misdemeanor DUI arrests. Some of these examples of variations in OWI-DUI consequences and DWI-DUI penalties will be set forth below, for illustrative purposes. For example, while most other states had enacted a felony DUI-OVI-DWI-OUI-OWI law for repeat offense driving under the influence, Georgia never did this until 2008, when it made a 4th DUI in ten years a felony.

What Is a Felony DUI?

With some variations, a felony is a crime for which the sentence for possible incarceration exceeds 1 year, and a misdemeanor is an offense that has a sentence that is for 12 months (or less). In either case, the DUI meaning does not change, in terms of a permanent blemish on your criminal record.

The Legislature decides what offenses will be criminalized as a felony, but the typical statutory structure is that repeat offenders can be felons, and drunk drivers or drugged drivers who either cause serious injury or death in an accident, or put others is grave danger by being impaired (e.g., school bus drivers) are specially categorized for felony vs misdemeanor prosecution.

Is Child Endangerment a Felony?

Some states make any DUI-DWI-OUI with a child in the vehicle a felony, like Arizona, Missouri, New York and Alaska. So, the answer to the question of “Is DUI considered a felony?” must be reviewed under each state’s laws. Regardless of each state’s position on when a DUI felony or misdemeanor occurs, all states have laws that enable the prosecutor to accuse a case as a felony, if the circumstances merit felony treatment.

Under the Georgia child endangerment law, is DUI a felony or misdemeanor? DUI laws in Georgia call for an additional DUI being added on for each child under age 14 in the vehicle with a drunk driver. Thus, many drivers with children in the vehicle can find themselves facing a DUI felony.

What makes a DUI a felony in Georgia? In GA, (absent being a school bus driver, or being involved in a serious injury by vehicle or a vehicular homicide) is it a numbers game, to reach a drunk driving felony. These three examples show how to determine if endangering a child by driving impaired in Georgia is a DUI misdemeanor or felony:

Driver already has two prior DUI convictions from 2009 and 2012, and gets pulled over and arrested for driving drunk, and have a 10-year old passenger. If convicted of DUI and the child endangerment by DUI, this driver will have a 3rd DUI misdemeanor in 10 years and a 4th DUI felony in Georgia, that will be separately enforced, both in terms of punishment, and in loss of all driving privileges under Georgia DUI law.
Driver with no DUI convictions gets arrested for DUI and has three children under the age of 14 as passengers in the vehicle. If convicted of DUI, the three child endangerment charges add on three more DUIs, leaving this driver with a first offense DUI, a second offense DUI, a 3rd DUI and a 4th DUI (felony). One incident can generate four separate and distinct crimes, under Georgia DUI laws.
Driver with three previous DUI convictions in Georgia, starting in 2009, has two children in the vehicle ages 5 and 7 when stopped for suspected drunk driving. If convicted, this driver would have three DUI felonies, which is for the driver and one more for each endangering a child conviction. All license loss periods would be stacked, end-to-end.

So, having a DUI lawyer assist you in answering the question “is DUI a felony in Georgia?” is critical. Not only will all driving privileges be lost, but a Judge can sentence the driver to State prison time, for putting these children at risk in a DUI child endangerment case.

DUI – Is It a Felony?

Generally, our criminal laws are broken down into offenses that the Legislature has drawn up to proscribe certain anti-social conduct (against persons or property) known as “crimes.” The two major categories of crimes are structed felony and misdemeanor, with felonies being the more serious of the two, in terms of potential punishment. However, the same Legislature can create gradations of seriousness, in each category, such as “1st degree,” second degree, or simple misdemeanor, and high and aggravated misdemeanor or similar delineation.

This determines if DUI is a felony. Every state’s DUI felony laws also determine if sentences can be “stacked” or must be sentenced concurrently, from a single collision causing serious injury or death. So, the answer to “is a DUI a felony” changes from state to state.

What Makes a DUI a Felony under Georgia DUI Laws?

DUI accident cases and DUI child endangerment are the most common basis of charging DUI misdemeanor vs felony. About 90% of Georgia DUI arrests are misdemeanor DUI cases. Georgia DUI law recognizes several extenuating circumstances that can allow a prosecutor to increase the charge to a DUI felony offense. These include situations triggering felony DUI consequences where the drunk driving (or drugged driver) in Georgia is accused of:

DUI driver causing serious bodily injury to one or more people. (Sentence range: 1 to 15 years, per serious injury victim). This is code section OCGA 40-6-394
DUI driver causing wrongful death to one or more people. This is code section OCGA 40-6-393. (Sentence range: 3 to 15 years, per death caused).
Feticide by Vehicle, while DUI – Causing Death to an Unborn Child. (Sentence range: 1 to 15 years, per unborn child or fetus killed – the viability of the child at the time of the accident is no longer an issue).
DUI with a child in the car, or DUI child endangerment, and three or more children under age 14 are passengers. Georgia DUI law has subsection “l” (the letter L), that calls for a conviction of a driver with children in the vehicle triggering an ADDITIONAL DUI for each child under age 14. Other states have passed laws like this, but the age of the child ranges from up to 12 to up to 6. Three states (South Dakota, Vermont, and New Mexico) have never passed such child endangerment laws, despite constant pressure from MADD and several government agencies like NHTSA (the National Highway Traffic Safety Administration), a division of the federal DOT.
A School Bus Driver who is convicted of DUI in Georgia will face felony DUI punishment of 1 to 5 years in State Prison, and a fine of up to $5,000 plus surcharges. Georgia DUI laws do NOT require there to be any children on the bus at the time of the DUI arrest.
Fourth DUI within 10 years, measured (in GA) as date-of-arrest to date-of-arrest). All the fourth DUI offense and all others must have occurred on or after July 1, 2008, to meet this DUI felony status, since the Georgia Legislature gave its citizens a break, by making the Georgia felony DUI fourth offense prospective, not retrospective. When Michigan changed its law from 3rd in 10 years is a felony OWI, to a third DUI in a person’s LIFETIME, their law was not made prospective.
Even harsher consequences can befall a person charged with DUI in Georgia who has been declared a Habitual Violator, and he or she kills or seriously injures one or more other people. The 3 to 15 years is expanded to 5 to 20 years, per injury or death. This is subsection (d) under OCGA 40-6-393.

You could also face additional felony DUI charges for transporting a minor while under the influence, or excessive speeding while impaired. Additionally, if a DUI felony cannot be pursued against a driver who causes death or serious injury, a reckless driving “predicate” misdemeanor offense can also support the prosecutor seeking to add felony counts for death or serious injury cases, when dangerous driving that puts other at risk of harm. Reckless driving under OCGA 40-6-390 is also classified as a serious traffic offense misdemeanor, just like a DUI in Georgia.

Habitual violator offenders may also face a felony in Georgia. If you were arrested for a fourth drunk-driving offense within 10 years, you could be charged under Georgia DUI laws with a felony DUI. Plus, when a person has already been classified as a habitual offender, after a third DUI, or three of any combination of the HV-level offenses (hit and run, attempting to elude an officer, racing child endangerment, vehicular homicide 2nd degree, vehicular feticide, first degree, and DUI).

It is very important to speak with an attorney right away if you have been convicted of DUI on three prior occasions in the past. Call DUI Lawyer Atlanta Bubba Head at 404-567-5515 if you need guidance on a DUI Georgia case that may be a DUI felony or misdemeanor DUI in Georgia.

Other Georgia Traffic Laws (Non-DUI) That Can Trigger Felony Consequences

Hit and Run – Fleeing the scene of an accident where any person is injured
Attempting to elude an officer or to evade the police, after being signaled to pull over
Interference with a traffic control device (e.g., red light, stop sign, yield sign, reduced speed limit sign) or a railroad sign or signal
Reckless Driving – driving with reckless disregard for the safety of persons or property

Additionally, if a DUI felony case cannot be pursued against a driver (or a jury finds the accused driver “not guilty” of that DUI felony) most indictments will also allege death or serious injury, using a reckless driving “predicate” misdemeanor offense (as an alternative basis for a felony conviction).

This can also support the prosecutor seeking to add felony counts for death or serious bodily disfigurement cases in Georgia. The serious bodily injury Georgia law is OCGA 40-6-394. With both causing a DEATH or SERIOUS BODILY INJURY, when caused by reckless driving, the maximum jail time is 15 years per injury and/or per death, except for the habitual violator, who faces 20 years per injury and/or death.

A good rule of thumb for everyone is to ASSUME that if another person dies in a collision, and you were the at-fault driver, and you are accused of drunk driving or drugged driving, the question of “is a DUI a felony” is almost always YES. Occasionally, an injured person won’t pass away immediately, and the officer won’t initially make this felony DUI charge, but once death occurs, a new warrant for the felony will be issued. This will necessitate a new bond being set by a Superior Court judge.

Drunk driving arrests with serious injury of another are significantly overlooked in GA. Often, non-fatal accidents occur, and the police officer who makes the driving while intoxicated arrest does not follow up on other drivers (or their passengers), to see the extent of other motorists’ or passengers’ injuries, and the case is only charged as a drunk driving misdemeanor.

In many cases, when the assigned prosecutor receives these files, and reviews injuries, he or she will learn of broken bones, scars, burns or organic brain damage that can then lead to the misdemeanor drunk driving case being transferred to a felony prosecutor in Superior Court, for filing under OCGA 40-6-394 for a “serious injury by vehicle” felony.

Felony DUI Penalties and License Suspension Consequences

The biggest difference between DUI penalties for a felony and misdemeanor DUI is (a) where you serve your incarceration (state prison for felony DUI and county jail for DUI misdemeanor) and (b) length and type of Georgia driver’s license impact (the DUI felony usually implicates a revocation of the person’s right to drive in GA (a felony HV revocation totally removes you from list of Georgia drivers, which requires you to later reapply for the right to drive in Georgia, as though a first-time licensee).

By contrast, the only misdemeanor DUI that triggers a five-year revocation under Georgia DUI laws is when the conviction is for a third HV-level offense within a five-year period. All other driving under the influence charges triggers only a Georgia driver’s license suspension for some period.

A 2nd DUI in GA creates a license suspension GA, and the driver faces being in alcohol and drug treatment, taking a risk reduction class, getting liability insurance, and contracting to install an ignition interlock device, plus pay monthly monitoring fees.

Similarly, in most serious bodily injury cases, you can count on a positive response to the query, “Is DUI a felony?” Plus, in non-DUI felony cases involving death or serious injury, reckless driving can be just as harshly punished, at least in GA.

To Avoid GA DUI Felony Sentencing, Hire an Expert at DUI Defense

A felony conviction for driving while intoxicated will trigger several severe penalties, including an increased DUI license suspension or revocation period, expensive fines, and serving time in State prison. You may also be ordered to perform community service and mandated to seek treatment for substance abuse. Doing everything possible to assure that you are NOT a convicted felon is our goal of our DUI attorneys for your DUI case.

The answer is an experienced, confident DUI law firm with DUI lawyers near me to fight drunk driving cases by using EVERY legal tool and strategy possible. DUI attorney Atlanta Bubba Head, and his law partners, criminal defense attorney Larry Kohn and DUI defense lawyer Cory Yager handle over 400 DUI cases each year.

All three law partners are now legal book authors who enjoy top attorney ratings from Super Lawyers, AVVO, Martindale-Hubbell and Best lawyers in America. We provide a FREE lawyer consultation in all cases and return calls 24 hours a day. Our criminal attorneys near me even cover weekend appointments, if needed.

What Kind of Attorney Do I Need? Searching for The Best DUI Lawyer

After being arrested for DUI in Georgia, the first thing to do it identify an expert on Georgia DUI law through top attorney ratings. Look at who is BEHIND the law firm, review each of the trial lawyers’ credentials, and check out the criminal defense attorney who leads the law office. Every experienced DUI lawyer in the law firm must have full command of DUI laws and possess training in all aspects of successfully challenging the driving under the influence criminal case.

This successful defense record must include suppressing breath alcohol tests, and knowing every prior appellate decision on Georgia implied consent law. An increasing number of drugged driving cases require that our criminal defense lawyers know how to challenge a GBI blood alcohol or drugs test. Being an INSTRUCTOR in the three NHTSA standardized field sobriety tests (SFST) is also necessary.

The best DUI attorneys in Atlanta, Georgia will offer you a FREE lawyer consultation near me, explain how their criminal attorneys search for a successful defense in your case, and aggressively represent clients to the maximum extent the law allows. Limit your search to DUI lawyers who have legitimate lawyer ratings and a history of proven results on knowing how to beat a DUI. If our award-winning law office has the criminal defense attorneys for you, ask us about our attorney payment plans.

Call our DUI defense lawyers NOW, 24-7, for an initial case review and FREE legal advice: 404-567-5515, or email our criminal justice attorneys.

Other valuable insights on this website:

Dui Accident Lawyer

Is a Dui a Criminal Offense

Is a Dui a Felony