Most DUI charges in Pennsylvania are misdemeanors. The penalties vary among misdemeanors, but they are generally lower-level offenses. Felony DUIs are reserved for much more serious conduct.
Regular DUI charges can be upgraded to felonies in a few situations. Most of these involve at least two prior DUIs. However, regular, low-rate, alcohol-based DUIs cannot be upgraded without at least three priors. DUIs also become felonies if they involve a crash that causes injury, with charges for “aggravated assault by vehicle while driving under the influence.” Causing a deadly crash while drunk or drugged is also a felony.
For a free case review, call (215) 423-5500 immediately to speak with Kenny, Burns & McGill’s Philadelphia DUI defense lawyers.
Upgrading DUIs to Felonies
DUI charges all come under 75 Pa.C.S. § 3802. This statute sets all DUIs as misdemeanors but upgrades them to felonies under certain situations. Typically, the charges would be “ungraded misdemeanors” with a max of 6 months in jail, plus fines, suspensions, and other fees, though our Pennsylvania DUI defense lawyers may be able to fight the charges and help you avoid conviction in the first place.
Charges are upgraded to more serious felony DUIs if they meet certain criteria and have enough prior DUI offenses.
DUI with Refusal
Refusing an authorized blood or breath test after an arrest is a separate offense in Pennsylvania. This can lead to an automatic license suspension, and it goes on your record as a separate offense with its own fines and penalties.
If you commit a DUI and refuse the breath or blood test, then you can face a felony charge for the DUI instead of a misdemeanor, but only if you have at least two prior DUIs.
There are important rules we can use to challenge the accusations of a refusal, pointing to the warrant requirement and specific requirements for reading you your “O’Connell warnings” about implied consent before a refusal can count as a refusal.
High-Rate DUI
DUIs can be broken down into a few categories:
- General intoxication covers a DUI with no BAC rate or with a BAC under .08%
- Low rate DUIs are for BACs from .08%-0.10% – i.e., over the “legal limit”
- High rate DUIs are for BACs from 0.10%-0.16% – i.e., higher, but under double the “legal limit”
- Highest rate DUIs are for BACs over twice the legal limit at 0.16% or higher.
DUIs with a BAC in the “highest rate” (0.16% or higher) category can be upgraded to a felony if you have at least two prior DUIs.
Drug DUI
Drug DUIs are a separate category of DUI from alcohol DUIs. Like with a highest rate DUI, only two priors are needed to upgrade your charges to a felony.
DUI with Child Passenger
If you commit a DUI with a child under 18 in your car, it is a felony if you have two prior DUIs.
Regular DUI
A standard, alcohol-based DUI with a BAC under 0.16% cannot be upgraded to a DUI unless you have three prior DUIs on your record.
Felony Grading for DUIs in Pennsylvania
When these DUIs are upgraded to a felony, the level of felony depends on how many prior DUIs you have.
For a regular DUI, you need three priors before it becomes a felony. When it does, that is a third degree felony.
When upgrading a DUI to a felony because there is a child in the car, you need two priors. That upgraded felony is also a third degree felony.
For the rest of the other DUIs listed above, you need two priors for it to become a felony. If you have exactly two, then it is a third degree felony. If, instead, you have three priors, it is further upgraded to a second degree felony.
What Counts as a Prior for DUI Grading?
When we say “prior offense,” we mean another commission of a crime before this one. But does it have to be the same level of DUI? Do you need to be convicted for it to count?
75 Pa.C.S. § 3806 lays out what counts as a prior offense for DUI charges.
- Needs a conviction or adjudication of delinquency (conviction in juvenile court), not just charges alone
- Any DUI – low rate, high rate, drug, or alcohol – counts
- Convictions under the old § 3731 (a previous separate section for high-rate and drug DUIs)
- A DUI in another state that meets our state’s definitions
- Any combination of these offenses.
This gives us some grounds to argue that another state’s DUI should not count as a prior, or that a DUI you have been charged with – but not convicted of – should not count.
On top of this, priors must be from the past 10 years, as measured from the date of sentencing. Older offenses are still on your record but do not count.
If you are convicted of multiple crimes on the same day, they each count as priors for the other. For example, if you committed two DUIs and plead guilty to both of them, then get sentenced on the same day, they would each count like you had one prior DUI.
Felony DUIs for Crashes Involving Injury or Death
Any crash that you cause because you were driving under the influence can lead to additional charges on top of the DUI charges:
- Crashes involving injury count as aggravated assault while DUI under 75 Pa.C.S. 3735.1.
- Crashes involving death count as homicide by vehicle while DUI under 3735.
Aggravated assault here is a second degree felony, and so is homicide by vehicle with no priors.
Vehicular homicide while driving under the influence is upgraded to a first degree felony if you have any of these prior offenses:
- DUI
- Homicide by vehicle
- Aggravated assault by vehicle
- Fleeing or eluding officers
- Driving without headlights to avoid ID/arrest
- Vehicular homicide while DUI
- Aggravated assault while DUI
- Reckless driving
- Similar charges from another jurisdiction.
What Are the Penalties for a Felony DUI?
Pennsylvania uses sentencing guidelines that take prior offenses and the gravity of the current offense into account when setting the final sentence within a range. Because these felonies have different levels and require prior offenses – each of which can set you with a different prior record score – listing the penalties for each combination would be too much. Instead, have our lawyers review your case to determine what penalty range you could face in your specific case.
Call Our Pennsylvania DUI Defense Lawyers for Help Today
Call Kenny, Burns & McGill’s Philadelphia criminal defense lawyers at (215) 423-5500 to get started on your defense today with a free case review.
