Under certain circumstances, a DUI or DWAI may be charged as a felony. The definition of “driving under the influence,” “driving while ability impaired,” “driving” and “motor vehicle” are the same whether charged as a misdemeanor or a felony.
A DUI or DWAI becomes a class four felony if the person charged has three or more prior convictions for alcohol or drug related driving offenses. Priors include DUI, DUI per se, DWAI, vehicular homicide and vehicular assault [link to Vehicular Assault page]. There is no timeframe for the priors, so regardless of the age of the priors, if a person has three priors, the fourth is felony.
The possible penalties for a class four felony are:
- Two to six years in prison
- Three years of mandatory parole to follow any prison sentence
- Fine between $2000 and $5000
Prison is not, however, mandatory for a felony DUI or DWAI. A judge may impose a more lenient sentence, including probation, jail, or community corrections. In fact, the law requires a judge to make a specific determination that prison is the most appropriate sentence before imposing a prison sentence. Factors the judge must consider are:
- The person’s willingness to participate in treatment
- Whether all other sanctions and responses have been exhausted
- If not exhausted, whether other sanctions and responses would be unsuccessful
- If other sanctions and responses present an unacceptable risk to pubic safety
These arguments are not only important for sentencing, but also important for plea bargaining with the prosecutor.
All of the defenses available for a non-felony DUI or DWAI are available for a felony level offense. Because of the potential consequences for a felony, careful review and analysis of your case is of even greater importance.