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Is DUI a Felony in Georgia?

By: Atlanta DUI Lawyer William C. Head

Is a DUI a Felony in Georgia?

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.

Thousands of people, upon release from jail, search the Internet for phrases like, “Is DUI a felony?” or “Is a DUI a misdemeanor or a felony?” Below, the most common questions get answered, by a DUI lawyer who has been a drunk driving book author for over a quarter of a century.

7 Top Most Common “Felony DUI” Questions and Answers

  • Are DUI’s felonies? Possibly.
  • When is a DUI a felony? This varies from state to state.
  • Is a DUI a felony? The 6 ways a DUI is a felony.
  • What is felony DUI? Felony DUI charges defined.
  • Is DUI felony? When is a DUI a felony?
  • Can a DUI be a felony? Yes, in all states under certain circumstances.
  • Is your first DUI a felony? Almost never.

DUI Penalties For Felony and Misdemeanor DUI

  •  A quick overview of most states' drunk driving laws shows that the following special DUI facts often call for DUI penalties and the severity of the charges (i.e., felony vs misdemeanor) being charged.
  • DUI-DWI resulting in a death (or more than one death).
  • DUI resulting in a serious bodily injury, such as a scar from being sutured (“stitched up” or glued to close the wound), burns, loss of an eye, finger, a broken bone, or organic brain damage.
  • DUI with child in car or child endangerment (in some states like NY, AZ, MO, IN and several more states).
  • Multiple DUI offenses, either in the driver's lifetime (like Michigan, where a 3rd DUI lifetime is a felony or 4th DUI within ten years like Georgia). So, each state decides when repeat drunk driving convictions become a felony, with a 2nd DUI being a felony in the strictest (Indiana), and a 4th DUI offense being the most lenient number of repeat DUI offenses constituting a felony. Depending on state DUI laws, the most common number (in surveying state DWI-DUI laws across America) is a 3rd DUI or more within a fixed term of years (as set by state DUI-DWI laws), or in the driver's lifetime (Michigan).
  • Most states permit ONE DUI accident to create MULTIPLE felony counts, when multiple deaths and/or serious injury cases occur. Georgia DUI law permits the judge to “stack” the sentences, end-to-end, so that the driver never leaves state prison. The author has represented people with multiple serious injury by vehicle victims, for example a City of Atlanta head-on collision on I-20, where our client had a 0.24 BAC level, and caused a car fire in which 5 colleges students suffered burns, plus two of her passengers in her vehicle had broken bones. Our client faced up to 105 years in state prison (7 x 15 years maximum prison sentence for felony serious injury by vehicle), under the Georgia serious injury by vehicle law, OCGA 40-6-394. Fortunately, the 24 year old client’s father hired DUI lawyer William C. Head early in the case, and Mr. Head was able to get the woman’s case resolved as misdemeanor charges, saving her from a prison sentence. She still faced millions of dollars in civil claims, however.

Are DUIs Felonies?

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:

  • Car accident by a drunk driver causing serious bodily injury or death. Depending on the state, such DUI crimes, even for a first offense DUI, can result in felony charges and felony DUI penalties. The different states name the crime in a variety of ways, such as vehicular homicide, serious bodily injury, manslaughter, DUI with grievous bodily injury, etc. some states even call it murder.
  • Repeat offenses, in almost every state, can determine what makes a DUI a felony. Indiana is the only state where a non-accident second offense DUI can be a felony, but many states make a 3rd DUI a felony (e.g., Michigan makes any third DUI in your lifetime a DUI felony).
  • Certain high risk “operators” of vehicles are help to a higher standard of care, because they are responsible for the safety and well-being of others. For these motorists, ANY DUI is a felony. By way of example, a school bus driver in Georgia can be charged with a felony DUI, even if it is a first DUI offense in his or her lifetime.

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 help 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 law in Georgia applies, 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, what makes 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.

In general terms, these are the 6 ways a DUI is a felony:

  • Repeat offenders
  • Serious injury by a car accident with a pedestrian or occupied vehicle
  • Homicide by vehicle, of a pedestrian or any other person (in your vehicle or in another vehicle)
  • Some states have felony laws concerning items in the car, or a child in the car --- or multiple children in a vehicle.
  • If you are driving in violation of your current state habitual violator status, this maybe be a felony.
  • Interstate compact violation by being a repeat DUI offender, and have a probation sentence exceeding one year, a person’s ability to leave the state where he or she is sentenced is controlled by the Interstate Compact law. www.interstatecompact.org  

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 a DUI 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, he or she should not merely issue a traffic ticket. Police are trained to ask “investigating” questions like these:

  • Have you had anything to drink?
  • Have you taken any medications today?
  • Have you smoked marijuana?

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.

Is Your First DUI a Felony?

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 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 of death to another person (in your vehicle, another vehicle or as a pedestrian), the answer to “is your first DUI a felony?” is NO.

Our Drunk Driving Lawyer Experts 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 the other law partners, who are Atlanta DUI specialists, 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. The book was published in 2016. When you hire any of the DUI law firm partners, you have one of three Super Lawyers for 2017.

Get a FREE Lawyer Consultation Today

Is a dui a felony?If you need 24-hour lawyers, call our DUI law firm now for immediate help. (404) 567-5515. Our FREE professional criminal case assessment is worth your time and energy. If winning is your objective, call our Georgia drunk driving lawyers today. Our Georgia DUI attorneys will review the DUI lawyer cost, the likelihood of getting a DUI reduced to reckless driving in GA.

 

 

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