By Amy Vandervort-Clark, J.D. | Legally reviewed by Melissa Bender, Esq. | Last reviewed August 22, 2023
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Driving under the influence of alcohol or drugs (DUI) is extremely dangerous. It is a severe criminal offense. While most states charge DUI as a misdemeanor, the penalties can be severe. And there is a push in many states to lower the legal blood alcohol content (BAC) limit from 0.08% to 0.05%. Certain circumstances could land you with a felony charge of aggravated DUI. Depending on your local statutes, you may also see the terms "driving while intoxicated" (DWI), "operating under the influence" (OUI), or "operating while intoxicated" (OWI).
Certain situations can result in enhanced criminal charges and penalties for driving under the influence. These go well beyond the sentences typically imposed after a DUI conviction. The presence of certain aggravating factors in a DUI case can result in enhanced penalties. These factors increase the range of potential sentences and raise the actual charge to a more serious one. While a typical DUI charge is a misdemeanor, aggravated DUI is usually a felony.
What follows are a few examples of situations that can lead to an aggravated DUI charge with enhanced penalties. The factors and potential punishments will vary among states, so it's essential for anyone facing a DUI charge to look at the law of the state that has brought the charges.
All state DUI laws set a legal limit for blood alcohol concentration (BAC). Most states recognize 0.08%, but a trend exists to lower this limit to 0.05%. The law presumes anyone caught driving with a BAC over their state's legal limit has committed a DUI. They need no further proof of intoxication.
When tests reveal that a suspected DUI driver has an extremely high BAC, the crime moves into an aggravated DUI. This is usually two or more times the legal limit, or it may be a specific BAC, such as 0.15% or higher. An "extreme DUI" offense carries the possibility of a more significant prison sentence and higher fines. You can face a felony or aggravated DUI, even if it's your first time with a drunk driving charge.
The presence of minors in the vehicle at the time of a DUI arrest can also result in an aggravated DUI. States have different age ranges for minors that will trigger enhanced DUI penalties. For example, some states require that the minor in the vehicle be younger than 16, while others set the maximum age for the minor at 12. You will likely have a child protective services case opened against you, as well.
Some states also increase the penalties for a DUI conviction if the offense occurs in a school zone, regardless of whether children were in the car or nearby.
When you get pulled over on suspicion of driving under the influence, the police officer conducts chemical tests and field sobriety tests. They will also check your driving history and your criminal record. If you have prior DUI charges and convictions within a certain period of time, you will likely face an aggravated DUI charge.
Courts will hand down elevated sentences if the driver has had prior DUI convictions. This includes one or more of the convictions occurring in another state. States give harsher punishments to repeat offenders to discourage people from driving under the influence of drugs or alcohol after their first DUI conviction.
States have different systems for penalizing repeat offenders. You should check your state's law or consult an experienced DUI defense attorney for more information.
A DUI offense becomes an aggravated felony when you cause bodily harm to another person or kill someone while driving intoxicated. This usually results from a motor vehicle accident or striking a pedestrian. You will likely receive multiple charges related to the incident. You will also be open to civil lawsuits over the injuries.
Bodily injury or harm to another person includes causing permanent disability, disfigurement, or serious injury. This can include passengers in your vehicle and other people outside it.
If the DUI incident results in the death of another person, you will face vehicular manslaughter charges in addition to the DUI charge and any other crimes related to the accident. If you commit a second offense, you may be charged with murder.
A misdemeanor DUI becomes a felony DUI or aggravated drunk driving when you are driving with a suspended or revoked license. Penalties for this situation increase because you have blatantly disregarded the law by driving on a suspended or revoked license.
A state can charge you with excessive speed in addition to DUI. In some states, if a person exceeds the speed limit by a certain amount, it may also result in an aggravated DUI charge. For example, if police measured a DUI defendant driving 30 miles per hour over the posted speed limit, the defendant could face a much higher sentence than if they had driven 10 miles per hour over the speed limit.
When they suspect intoxication or drunk driving, law enforcement will subject you to chemical tests and field sobriety tests. You have implied your consent to these tests as part of your driving privileges. Refusal to cooperate will often mean immediate driver's license suspension, arrest, and jail time. Officers can force you to undergo testing anyway. Some states will charge you with aggravated DUI because of your refusal. This is also evidence the prosecution may use against you at trial.
Aggravated DUI is a serious charge that carries severe penalties. It is usually a felony that will carry a mandatory minimum jail sentence. In addition, you will have to undergo drug and alcohol treatment and perform community service as part of your probation. There is a required revocation of your driving privileges for some time, and you will likely need to maintain an ignition interlock device on your vehicle for another period if you have limited driving privileges reinstated. You will have to pay high fines and may need to reimburse for emergency services related to your case.
DUI arrests aren't pleasant. Being arrested and charged with an aggravated DUI is even less pleasant. Whether you're accused of having a particularly high BAC or a minor in the car, the penalties can be significantly increased for an aggravated DUI. It's a good idea to seek legal advice. Contact an experienced DUI attorney near you today.
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