The Denson Firm

Is DUI A Felony in Florida?

Is driving under the influence a felony or a misdemeanor under Florida law? Usually, a first conviction for driving under the influence is a misdemeanor, but there are facts and circumstances under which a DUI can be charged as a felony. And some factors can increase the penalties you are facing. If you are facing a DUI charge in Florida, it is best to get counsel to help you determine if you have a defense and, if not, to aid in sentencing negotiations.

Factors That Enhance DUI Penalties

Prior Convictions for DUI

In Florida, the penalties for DUI will vary based on how many prior convictions you have and the date of those convictions. The fewer DUIs, and the farther back they occurred, the better. Obviously, if this is your first offense, you will have better options to resolve your case.

A fourth DUI is always a felony. If you have three or more DUIs, every subsequent DUI arrest is a felony. It doesn't matter if you had three DUIs 20 years ago or 2 years ago. That next one is a felony.

A third DUI would be a felony only if the second DUI conviction was less than 10 years prior. For example, if you had two DUIs 9 years ago, this third one is a felony. If you had one DUI 9 years ago and one DUI 11 years ago, it is a felony. A third DUI where the convictions were more than 10 years prior is still a misdemeanor. So, if you had two DUIs eleven years ago, this third DUI is a misdemeanor.

Second DUIs are misdemeanors with elevated penalties. For example, if your prior DUI was less than five years ago, the judge must order 10 days in jail. If your prior DUI was more than 5 years ago, there is no mandatory jail time. But jail is still discretionary by the judge.

If you have a prior DUI, we always recommend getting legal counsel due to the enhanced penalties you face.

Bodily Harm

If you kill or seriously injure another person in Florida, you will be charged with Felony DUI, which is true regardless of who was at fault for the accident. The required statutory penalties are greatly enhanced for DUIs that involve injury or death. DUIs that involve death or serious bodily injury require the judge to sentence a person to prison time unless there is a legally justifiable reason to depart from the sentencing guidelines.

Property Damage

Property damage alone will not raise a DUI offense to a felony. If convicted of DUI with Property Damage, you will likely have to pay restitution for the damaged property as a condition of probation, but it will not raise the case to a felony. Depending on the amount of property damage, you may be facing a large claim for restitution.

High Blood-Alcohol Levels

The forensic standard for presumed impairment of drivers is a blood alcohol content (BAC) of .08 or higher. A BAC over .15 can result in getting a harsher punishment in Florida, but it will not raise an offense from a misdemeanor to a felony. A high blow will likely result in a higher fine and an ignition interlock requirement, but not a felony.

Child Endangerment

In Florida, committing a DUI with a child in the car is NOT a felony, but it will cause you to face enhanced sanctions such as higher fines and installation of an ignition interlock.

Refusing to Take a Breath Test

Refusing to take a breath test is not a felony. In fact, your first refusal is not a crime. (However, it can be used against you in court.) But be careful. A second refusal is a misdemeanor and is very easy for prosecutors to prove. Getting a second DUI with a second refusal is a misdemeanor, but these are difficult cases and are often treated harshly by the court.


Whether a DUI is a misdemeanor or a felony is important because it drives the statutory penalties and the sentencing negotiations with the State Attorney. Several factors determine the penalties for DUI. Prior record, breath alcohol level, who was in the car, bodily harm, and property damage, are just a few of the issues courts consider when fashioning a sentence. To determine what you are facing, consult with an attorney who can let you know the statutory penalties and what your judge’s sentencing practices are. Knowledge of sentencing practices can greatly help you resolve your case with confidence.

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