Is a DUI a Felony Offense?

DUIs are a type of criminal charge that escalates rapidly.

Each state has its own rules on the subject, but they often look like this:


A DUI can be a misdemeanor or felony. A DUI is a felony if it is not the first one, the accident was fatal, the blood alcohol concentration was high, or there were passengers in the car. The DUI is often a misdemeanor if it is the first offense and the conditions mentioned were not present.

Keep reading to learn more about when a DUI is a misdemeanor and when drunk driving comes with a permanent felony record.

DUI Offenses: A First DUI Offers the Lowest Penalty

Very often, a first DUI offense comes with the leniency of a traffic arrest – at least compared to subsequent or more complicated crimes.

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The conviction usually comes with a license suspension, mandatory counseling, fines, and possible jail time. But often, a clean record and a first DUI result in a misdemeanor that you can put behind you – as long as you don’t do it again.

In many states, you can even apply for a temporary permit that allows you to drive to work and school instead of losing your license. You may also drive as usual as long as you outfit your vehicle with an ignition interlock device. There are also cases where a judge may even count time served after your arrest in place of assigning further county jail charges.

However, if you were to get any leniency, it is strictly with a first DUI and when there are no other charges associated with it.

Once your DUI becomes more complicated, it can quickly become a felony.

When Is a DUI a Felony?

A DUI becomes a felony in specific circumstances where the situation was more complicated than driving home from the bar or a party after a few beers.

Generally speaking, a DUI is a felony when you violated others or put others in danger (danger greater than driving with a 0.08 BAC alone, which is enough to warrant a DUI).

Here are the most common felony DUI scenarios.

A DUI Becomes a Felony on Your Second or Third Arrest

State law may elevate your DUI to a felony after you are convicted for a second or third time or if you are convicted again within a set period. The specific charge depends on the state statute.

States vary in how they justify a felony charge, but this is the easiest way to see your DUI elevated.

A felony conviction also comes with significantly higher fines, more jail time, and more prolonged license suspension periods.

Out of all the scenarios on the list, a second DUI is probably the best legal scenario in which you receive a felony.

A DUI Becomes a Felony When You Have an Elevated Blood Alcohol Content

Blowing a 0.08 during a breathalyzer and field sobriety test earns you a DUI.

But if you are driving with a blood alcohol content (BAC) much higher than this, it can be an automatic felony. Usually, the official elevated BAC begins at 0.16 percent (double the legal limit), and this may be the threshold a state may use to justify a felony. Though, it does vary by region.

No matter where you are, you can expect that a higher BAC always comes with a more severe penalty (higher fine, longer sentence, longer suspension, elevated charge, etc.).

A DUI Becomes a Felony When You Drive with Children

Perhaps the worst-case scenario in a DUI arrest is finding children in the vehicle.

It is an officer and judge’s worst nightmare, and they charge and convict accordingly.

The age range of the children that count as minors depends on the state. For example, Michigan counts children up to age 16, but Colorado includes children under 18.

If you are driving while under the influence and with kids in the vehicle, you receive a charge of DUI with child endangerment. Each state phrases it a different way, but the general message is the same.

In some cases, you may not only be convicted of a DUI but also child abuse or endangerment. The result can mean one or two convictions for the same arrest. It also almost always elevates both to a felony, even if you have never been arrested before.

Child abuse or endangerment convictions come with even higher fines and longer prison sentences. Child abuse or endangerment on its own is often a state felony. What is more, you can lose custody of your children upon the first arrest.

Things get even worse if you get in an accident and a child in the car is injured: you are then talking years in prison (with mandatory parole) and fines in the tens of thousands if not up to six figures. If a child dies in your car and you are criminally negligent, you could go away for a minimum of five to eight years, depending on the state.

A DUI with child endangerment is perhaps the worst type of DUI conviction you can face, and it is implausible that you will be able to shake the charges. And while common sense already says that you shouldn’t drink and drive, nor should you ever drink and drive with children in the car, the state will absolutely make you pay if you do so.

DUI Felony Defenses

By the time a DUI receives elevation to a felony, the number of defenses available falls to only a few. The arguments of having no choice but to drive or drink without realizing you’re drunk are nowhere near as useful on your third DUI. If the police pull you over with a child in the car, then a conviction is almost inevitable – the only question is the sentence.

However, there are some options still available to your defense attorney. Most of these defenses relate to the police handling of the subject, including:

  • Inappropriate or illegal stops
  • Inaccurate or malfunctioning breathalyzer 
  • Incorrect or invalid field sobriety test
  • Failure to allow the defendant to call an attorney during the investigation
  • Inadequate evidence of the suspect driving the vehicle

These defenses work to stop the charges generally based on legal technicalities. Lawyers employ these regardless of whether the defendant was or was not drunk behind the wheel.

Can You Expunge a Felony DUI?

If you receive a single, misdemeanor DUI conviction, you may have the opportunity to expunge your record.

An expungement means that your record is either erased or sealed. Once expunged, your DUI conviction no longer appears on public background checks, which means landlords or employers won’t see it. However, both law enforcement and the state can still see it.

They need the records in case you get arrested again.

Expungements are incredibly helpful if your DUI is a one-time mistake, but it’s important to note that it doesn’t mean that you officially have a clean record.

Not everyone can seek an expungement. Your state must allow it. You also have a better chance of receiving one if you were under 21 when convicted, and there are no other arrests or convictions on your record.

Additionally, it’s important to note that expungement is a legal process. You must meet specific requirements and fill out the paperwork correctly.

There are also court fees. Many people find they need to use a lawyer to help them through the process.

The question is: can you expunge a felony DUI?

Felony DUIs Are Usually Permanent

Many states allow some felonies to be expunged. Though this rule never applies to violent or sexual crimes.

Because a felony DUI is usually the result of a more serious crime (a second offense, children in the car, etc.), it is highly unlikely that you can seek an expungement.

Why? Most states typically save DUI expungements for those who make a mistake, promise to do better, and then do better. An expungement usually requires you to maintain a clean record for three to ten years. If it’s your second arrest, then you likely have not done that.

If you have a felony DUI and you hope to seek an expungement, then you almost certainly need to consult a DUI lawyer before filing the paperwork.

DUIs Become Felonies Quickly

Is a DUI a felony? A first DUI is typically a misdemeanor. Although it is a severe offense that includes cumbersome fines and county jail time, you can leave it in the past and avoid a felony record.

However, all states take drunk driving seriously. As soon as your DUI is more than just a case of driving after a few beers, state attorneys are happy to elevate the case to a felony.

The best way to prevent a DUI felony is always to avoid drinking and driving at all.

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Comments 1

  1. Rebecca Gardner says:

    Thanks for explaining that it’s usually an option to keep our first DUI off a permanent felony record. I think that in some states, it may be required to take a specialized driving class the first time you’re charged for a DUI as well. The info you shared here will be helpful in one of my loved ones ever gets a DUI, so thanks for discussing it!

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