Understanding Felony DUI: Factors and Consequences

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.

Protect Yourself After a DUI Arrest

A DUI is a serious charge. To protect your license, freedom, and record, use the Super Lawyers directory to find a top DUI defense attorney near you.

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.

DUI Laws — Example 1: Texas

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.”

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

DUI Laws — Example 2: Virginia

Stephen P. Pfeiffer, a DUI lawyer in Virginia Beach, Virginia, 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.”

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

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

Seeking Legal Assistance From an Experienced DUI Defense Attorney

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.

Minimum and Maximum Penalties for All Misdemeanor Charges

If you made a mistake or had a lapse in judgment and now find yourself facing misdemeanor charges, your mind is likely reeling with questions about what penalties you could face and how a conviction might affect your future. The uncertainty can feel overwhelming, especially if you’ve never been in trouble with the law before.

As an experienced Fort Lauderdale misdemeanor defense attorney, Dave L. Simmons understands how stressful and scary this situation is for you. He has helped hundreds of clients in your shoes fight for the best possible outcome in their cases. Attorney Simmons will thoroughly review the details of your case to determine the most strategic approach to your defense.

Keep reading to learn more about the potential sentences and other fees and costs associated with misdemeanor convictions in Florida. With this knowledge and the right legal representation, you can move forward with confidence, knowing you have someone on your side to protect your rights.

Misdemeanors of the First Degree

In Florida, the offenses listed below are considered misdemeanors of the first degree. Unless noted otherwise, they are punishable with up to one year of jail time, up to $1,000 in fines, and up to one year of probation.

• Animal Cruelty
• Assault on Law Enforcement Officer
• Battery
• Carrying a Concealed Weapon
• Contributing to the Delinquency/Dependency of a Child
• Criminal Mischief (Damage over $200)
• Culpable Negligence (Inflicting Injury)
• Driving While License Revoked as Habitual Traffic Offender (2^nd or Subsequent Offense)
• Driving While License Suspended/Revoked (2^nd or Subsequent Offense)
• Exposure of Sexual Organs
• Fraudulent Proof of Insurance
• Possession of Cannabis
• Possession of Drug Paraphernalia
• Prostitution (2′^d or Subsequent Offense)
• Racing on the Highway — Fine: $500-$1,000; Driver’s License/Privilege Suspension: 1Year — Permanent Revocation
• Racing on the Highway (2^nd violation within 5 years of the date of a prior violation that resulted in a conviction) — Fine: $1,000-$3,000; Driver’s License/Privilege Suspension: 2 Years —Permanent Revocation
• Racing on the Highway (3^rd or subsequent violation within 5 years of the date of a prior violation that resulted in a conviction) Fine: $2,000-$5,000; Driver’s License/Privilege Suspension: 4 Years — Permanent Revocation
• Reckless Driving (Damage to Property or Person of Another) Refusal to Submit to Testing
• Resisting/Obstructing Without Violence
• Stalking
• Theft (Value of Property Taken More than $100 and Less than $300) Theft (2^nd or Subsequent Offense)

Other First-Degree Misdemeanor Offenses

A first offense of reckless driving (without damage) is punishable by:

• Up to 90 days of jail time
• Between $25 and $500 in fines

A second (or subsequent) offense without damage is punishable by:

• Up to six months of jail time
• Between $50 and $1,000 in fines

Misdemeanors of the Second Degree

The offenses listed below are considered misdemeanors of the second degree. Unless noted otherwise, they are punishable with up to 60 days of jail time, up to $500 in fines, and up to six months of probation.

• All City/Municipal Ordinance Violations (unless designated otherwise)
• All County Ordinance Violations (unless designated otherwise)
• Assault
• Altered Registration License Plate or Validation Sticker
• Attach Registration License Plate or Validation Sticker Not Assigned Criminal Mischief (Damage up to $200)
• Culpable Negligence (Exposing to Injury)
• Disorderly Conduct
• Disorderly Intoxication
• Driving While License Suspended/Revoked (1^st Offense)
• Driving Without a Valid License
• Driving While License Revoked as Habitual Traffic Offender (1^st Offense)
• Expired Registration More Than 6 Months (2^nd Offense)
• Failure to Obey Police Officer
• Failure to Sign Summons/Citation
• False Report to a Law Enforcement Officer
• Gambling
• Leaving the Scene of Accident/Crash
• Loitering or Prowling
• Obscene/Harassing Phone Calls
• Prostitution (1^St Offense)
• Selling Alcoholic Beverage to Person Under 21 Years of Age
• Possession of Alcoholic Beverage Under 21 Years of Age
• Theft (1^st Offense and Value of Property Taken Less than $100)
• Trespass (Without notice or warning)
• Unauthorized Use/Possession of Driver’s License/I.D.
• Unlawful Use of Temporary Tag

Other Sentencing Requirements and Costs in All Cases

• Court Costs as determined by the Clerk per statute
• Restitution to the victim for all damage or loss caused directly or indirectly by the defendant’s offense, and damage or loss related to the defendant’s criminal episode, if any
• Costs of Prosecution in the minimum amount of $50
• Investigative Costs,  if appropriate and ordered by the Court

Don’t Face Florida Misdemeanor Charges Alone 

When Broward County criminal charges threaten to turn your life upside-down, Fort Lauderdale defense lawyer Dave L. Simmons fights to help you protect your rights and safeguard your future. He provides robust defense representation for clients in misdemeanor cases. 

Fill out our contact form or call our office at 954-765-3540 for a confidential consultation. We proudly serve clients in Fort Lauderdale, Hollywood, Davie, Plantation, Hillsboro Beach, Pembroke Pines, Coconut Creek, Coral Springs, Lauderhill, Deerfield Beach, and surrounding communities. 

Are You Facing Charges For A Serious Offense?

Contact Us Today 

REDUCING A FELONY TO A MISDEMEANOR IN CALIFORNIA

California Penal Code 17 permits many people convicted of felonies to amend their conviction to a misdemeanor. Upon reduction to a misdemeanor, the misdemeanor can then be expunged or dismissed under California Penal Code 1203.4 or 1203.4a. This can be extremely significant for avoiding a felony record, restoring or maintaining gun rights. People seeking reduction may wish to simultaneously seek early termination of probation under California Penal Code 1203.3.

How Do You Turn a Felony Into a Misdemeanor?

Penal Code 17(b) permits a defendant to ask the court to declare a prior felony a misdemeanor. This determination makes a felony conviction a misdemeanor for all purposes going forward. That is, you may answer “no” to a question asking whether you have been convicted of a felony or have a felony on your record, and you do not lose (or you regain) voting or gun rights.

What is a “Wobbler” Crime?

A felony is a crime punishable by more than a year in state prison. A misdemeanor may not be punishable by more than one year in county jail. A “wobbler” may be punished as either a felony or misdemeanor. A “wobbler” is a special class of crime which could be classified and punished as a felony or misdemeanor depending upon severity of facts surrounding its commission. People v. Williams (App. 6 Dist. 1996) 57 Cal.Rptr.2d 448, 49 Cal.App.4th 1632, rehearing denied , review denied. In a wobbler, when defendant is sentenced to state prison, the offense is a felony, and when defendant is sentenced to county jail, offense is a misdemeanor. People v. Terry (App. 1 Dist. 1996) 54 Cal.Rptr.2d 769, 47 Cal.App.4th 329.

Only “wobblers” may be reduced. A crime that is a “straight felony” may not be reduced under Penal Code 17(b). People v. Mauch (App. 4 Dist. 2008) 77 Cal.Rptr.3d 751, 163 Cal.App.4th 669. For purposes of determining the statute of limitations for a “wobbler” offense your lawyer will look to that offense’s statute—and what it provides as the maximum punishment—rather than the statute generally defining felonies and misdemeanors, controls. People v. Soni (App. 4 Dist. 2005) 36 Cal.Rptr.3d 864, 134 Cal.App.4th 1510, review denied.

What is a Low-Level Felony in California?

Felonies classified as Class I are the least serious. It occurs when someone threatens to commit a crime that would cause death, terror, injury, or serious property damage.

This is just the tip of the iceberg. In spite of the fact that 1170(h) felonies are considered the least egregious types of felonies in California – the equivalent of Class 4 felonies – they can still result in serious jail time. If the person convicted has a previous felony conviction for any of the more than 40 different types of crimes, even 1170(h) felonies can lead to a state prison sentence.

Who Determines Misdemeanor vs. Felony Charges?

A California expungement lawyer may assist in determining whether an old conviction is a felony or a misdemeanor.

Once a court has reduced a wobbler offense to a misdemeanor, the crime is thereafter regarded as a misdemeanor for all purposes. People v. Gilbreth (App. 1 Dist. 2007) 67 Cal.Rptr.3d 10, 156 Cal.App.4th 53, appeal after new sentencing hearing 2009 WL 715987, unpublished.

That section provides that when a crime can be either a felony or a misdemeanor (that is, a “wobbler”), it can become a misdemeanor

• After a judgment imposing a punishment other than imprisonment in the state prison.
• In juvenile cases, either upon commitment to the Youth Authority or upon release from the Youth Authority.
• Upon receiving probation.
• Upon completing probation or termination probation early.
• Upon initial charge from the district attorney or attorney general.
• During or after a preliminary examination upon motion to the judge.

What is a “Prison Commitment” That Precludes Reduction to a Misdemeanor?

Trial court may reduce felony to misdemeanor even after original grant of
probation if sentence has not been imposed, but it lacks authority to do
so when sentence has been imposed and suspended. People v. Wood (App. 2
Dist. 1998) 73 Cal.Rptr.2d 308, 62 Cal.App.4^th 1262, rehearing denied , review denied. That is to say, a defendant who receives a suspended sentence to state prison (of, for example, 16 months, or two years, or more) may not later reduce the conviction to a misdemeanor even though he or she never actually went to state prison. For this individual, they may still seek dismissal (“expungement”) of their conviction under Penal Code 1203.4 or seek to have their sentence vacated, then sentenced as a misdemeanor, then seek dismissal.

The test, then, is the actual sentence imposed. People v. Bury (App. 4 Dist. 1996) 58 Cal.Rptr.2d 682, 50 Cal.App.4th 1873.

Petition.

To obtain reduce a felony to a misdemeanor, a California expungement attorney will first collect information about the felony conviction. It is important to assure that all relevant information is placed before the judge in the petition. This petition may include information about the offense, the probationer, letters of recommendation, proof of compliance with the terms of probation, and any other material that may assist the court in making a decision.

An application by defendant to reduce may be made at any time, even after probation is terminated, provided that conditions for reduction are satisfied. People v. Wood (App. 2 Dist. 1998) 73 Cal.Rptr.2d 308, 62 Cal.App.4th 1262, rehearing denied, review denied. Even if the defendant pleaded to a felony, he or she may still seek reduction at a later time. Id.

Reduction and Megan’s Law Sex Registration

A reduction from a felony to a misdemeanor in a sex offense will not terminate the requirement to register as a sex offender under California’s Megan’s Law. See also the California Sex Offender Registration Act, California Penal Code 290. Contact a California expungement lawyer for other techniques for removing your name from sex offender registration lists.

Voting Rights.

Where one’s voting rights are revoked by a judgment of a felony, reduction to a misdemeanor will restore voting rights. League of Women Voters of California v. McPherson (App. 1 Dist. 2006) 52 Cal.Rptr.3d 585, 145 Cal.App.4th 1469.

Gun Rights.

A reduction of a felony conviction to a misdemeanor precludes its later use as predicate offense for possession of a firearm by a convicted felon. People v. Gilbreth (App. 1 Dist. 2007) 67 Cal.Rptr.3d 10, 156 Cal.App.4th 53, appeal after new sentencing hearing 2009 WL 715987, unpublished. However, one should be careful regarding federal felon in possession statutes and consult a qualified California expungement lawyer.

Hearing.

Trial courts have broad authority in ruling on motions to reduce a crime to a misdemeanor. People v. Hawkins (App. 6 Dist. 2002) 121 Cal.Rptr.2d 627, 98 Cal.App.4th 1428, 99 Cal.App.4th 1333A, modified on denial of rehearing, review denied, certiorari denied 123 S.Ct. 1256, 537 U.S. 1189, 154 L.Ed.2d 1021, habeas corpus denied 2006 WL 2724145, motion to amend denied 2006 WL 3716494.

In determining whether to reduce, the judge looks at the nature and circumstances of offense, defendant’s appreciation of and attitude toward offense, or his traits of character as evidenced by his behavior and demeanor at trial, and when appropriate, general objectives of sentencing, People v. Superior Court (Alvarez) (1997) 60 Cal.Rptr.2d 93, 14 Cal.4th 968, 928 P.2d 1171, rehearing denied, and the community’s need for protection. In re Anderson (1968) 73 Cal.Rptr. 21, 69 Cal.2d 613, 447 P.2d 117, certiorari denied 92 S.Ct. 2415, 406 U.S. 971, 32 L.Ed.2d 671. However, no specific standard controls the judge’s exercise of this discretion. Id. Nonetheless, the court must focus on considerations that are pertinent to specific defendant being sentenced, not aversion to particular statutory scheme. The record must demonstrate such reasoned consideration. People v. Superior Court (Alvarez) (1997) 60 Cal.Rptr.2d 93, 14 Cal.4th 968, 928 P.2d 1171, rehearing denied.

What is the effect of Successful Reduction of a Felony to a Misdemeanor?

Once a judge reduces a California felony to a misdemeanor under Penal Code 17(b), the prosecutor may not appeal that decision or refile as a felony. People v. Williams (2005) 28 Cal.Rptr.3d 29, 35 Cal.4th 817, 110 P.3d 1239, rehearing denied. However, if at sentencing after a felony conviction the trial court reduces to a misdemeanor for the purposes of sentencing, the prosecutor may appeal. People v. Statum (2002) 122 Cal.Rptr.2d 572, 28 Cal. 4^th 682, 50 P.3d 355.