Since 2007, a DUI or Physical Control is a felony if the person has four or more prior DUIs (or other qualified offenses) within ten years or, if the person has ever previously been convicted of vehicular homicide or vehicular assault while under the influence. Beginning in September 2011, a DUI or Physical Control is a felony if the person has ever previously been convicted of felony DUI or Physical Control.
What are “prior offenses” for felony DUI or Physical Control? A prior offense is a conviction for DUI, Physical Control, or a reduction of such charges to reckless driving, negligent driving in the first degree, or a deferred prosecution within ten years before or after the current offense. A prior conviction for vehicular homicide or vehicular assault is also a prior offense, if it was committed while under the influence of intoxicating liquor or any drug. As of September of 2011, these crimes are also prior offenses if the charges were originally filed as vehicular homicide or vehicular assault committed while under the influence of intoxicating liquor or any drug. Out-of-state offenses may be considered as prior offenses if they are considered “comparable” offenses under our laws.
How is a felony DUI proven? Similar to a gross misdemeanor DUI, the prosecution has to prove, beyond a reasonable doubt, that the driver either had a .08 or higher breath or blood alcohol concentration, or that the driving was affected by alcohol or any drug to any appreciable degree. In addition, the prosecution must prove, beyond a reasonable doubt, that the driver had been convicted of the required number of prior offenses within the required time period. Unfortunately, it does not help one’s chances with a jury on the current offense, if the jury is aware of the prior offenses, because a jury might be unduly prejudiced by knowledge of the priors, believing that the person is guilty now simply because they did it before.
What are the penalties for a felony DUI? A felony DUI is a class C offense, punishable by up to five years in prison and a $10,000 fine. The actual sentence is calculated by determining an “offender score” which is based on points for certain current and prior convictions (unless the offender is a juvenile). Conviction also results in mandatory license revocation which is “tolled” while the offender is incarcerated. In 2011, an ignition interlock driver’s license may be available so that the offender may still drive while his or her license is revoked.
If you have been arrested and are concerned that you may be charged with a felony DUI or Physical Control, we can help. Our felony DUI lawyers are available to give you a free consultation 24 hours a day.