Criminal Status of State Drunken Driving Laws

4/4/2019

Every state has penalties for drivers who operate vehicles while intoxicated. Some do not classify impaired driving offenses as crimes, while others consider driving while intoxicated a misdemeanor criminal offense. If a person is convicted of multiple offenses of driving while intoxicated, some states charge an offender with a felony. This chart provides information about criminal charges related to driving while intoxicated for every state.

State/Jurisdiction

Citation

Criminal Status

Alabama

§§ 32-5A-191, 13A-5-7

First offense, second and third offenses within 5 years are misdemeanors. Fourth or subsequent offenses within 5 years are Class C felonies.

Alaska

§§ 28.35.030, 12.55.035, 12.55.135

First and second offenses are class A misdemeanors.
Third or subsequent offense within 10 years is a class C felony.

American Samoa

§§ 22.0707, 46.2301

All DUI offenses are class A misdemeanors.

Arizona

§§ 28-1381, 28-1382, 28-1383, 13-707, 13-801, 13-802

First and second offense within 7 years are class 1 misdemeanors.
Third or subsequent offense within 7 years is a class 4 felony.

Arkansas

§§ 5-65-103, 5-65-111, 5-65-112

First offense and second and third offenses within 5 years are unclassified misdemeanors.

Fourth and fifth offenses within five years are unclassified felonies.

Sixth or subsequent offenses occurring within 10 years of the first offense are Class B felonies.

California

Vehicle Code §§ 23152, 23536, 23540, 23546, 23550, 40000.15

All offenses are misdemeanors. However, with a fourth or subsequent offense, the individual is designated as a Habitual Offender for three years. 

Colorado

§§ 42-4-1301

DUI and impaired offenses are misdemeanors. However, if the offense occurred after 3 or more prior convictions, the offense of DUI or DWAI (Driving While Ability Impaired) is a class 4 felony.

Connecticut

§§ 14-227a, 53a-25, 53a-26

First offense is a misdemeanor, second and subsequent offenses within 10 years are felonies.

Delaware

Tit. 21, § 4177, tit. 11 § 233

First offense and second offense, occurring within 10 years of first offense, are misdemeanors.

Third offense is a class G felony; fourth and fifth offenses are class E felonies; sixth offense is a class D felony; seventh and any subsequent offenses are class C felonies.

DC

§§ 50-2206.13, 50-2206.15 

All charges for driving under the influence and operating a vehicle while impaired are misdemeanors.

Florida

§§ 316.193, 775.082

First and second offenses are misdemeanors, third or subsequent offense within 10 years is a third degree felony.

Georgia

§ 40-6-391

First and second offenses within 10 years are misdemeanors, third offense is a high and aggravated misdemeanor, fourth or subsequent offenses within 10 years are felonies. 

Guam

Tit. 9 § 1.19 and Tit. 16 §§ 18104, 18105, 18106

First and second non-injury DUI offenses within 5 years are misdemeanors, third and subsequent non-injury DUI offenses and any injury-related DUI offenses are third degree felonies.

Hawaii

§§ 291E-61, 291E-61.5, 701-107 

First, second and third offenses within 5 years are petty misdemeanors. Fourth or subsequent offenses within 10 years are class C felonies.

Idaho

§§ 18-8004, 18-8004C, 18-8005

First offense and second offense within 10 years are misdemeanors. Third or subsequent offenses within 10 years are felonies.

A second offense with a BAC above .20% is a felony. 

Illinois

625 ILCS § 5/11-501

First and second offenses are class A misdemeanors.

Third offense is a class 4 felony. If the BAC is above .16% on the third offense, then it is a class 2 felony.

Fourth offense is a class 2 felony; fifth offense is a class 1 felony; sixth and subsequent offenses are class X felonies. 

Indiana

§§ 9-30-5-1, 9-30-5-3

First offense with a BAC of .08 to .15 is a class C misdemeanor; with a BAC of .15 and higher, it is a class A misdemeanor; second and subsequent convictions within five years are level 6 felonies.

Iowa

§ §321J.2,707.6A(3)

First offense is serious misdemeanor, second offense within 12 years is an aggravated misdemeanor, third or subsequent offense within 12 years is class D felony.

Kansas

§ 8-1567

First offense is class B non-person misdemeanor, second is a class A non-person misdemeanor, third offense within 10 years of last conviction is a non-person felony. Third offense that happened more than 10 years after last conviction is a class A non-person misdemeanor. Fourth and subsequent offenses are non-person felonies.

Kentucky

§§189A.010 & 532.020, 532.060

First offense is a class B misdemeanor, second and third offenses within 10 years are class A misdemeanors, fourth or subsequent offenses within 10 years are class D felonies.

Louisiana

§§ 14:98.1, 14:98.2, 14:98.3, 14:98.4

First and second offenses are misdemeanors, third and subsequent offenses are felonies.

Maine

Tit. 29-A, § 2411 &

tit. 17-A, § 1252

First and second offenses within 10 years are misdemeanors, third or subsequent offenses within 10 years are class C crimes (felonies).

Maryland

Transp. §§ 21-902, 27-101, 27-102

All DUI offenses are misdemeanors.

Massachusetts

Ch. 90 § 24 & ch. 274 § 1

First and second offenses are misdemeanors, third and subsequent offenses are felonies.

Michigan

§ 257.625

First and second offenses within 7 years are misdemeanors, third or subsequent offenses are felonies.

Minnesota

§§ 169A.24, 169A.25, 169A.26, 169A.27, 169A.095

Fourth Degree Driving While Impaired (DWI): first DWI charge is a misdemeanor.

Third Degree DWI: DWI charge when one aggravating factor is present is a Gross Misdemeanor.

Second Degree DWI: DWI charge when two or more aggravating factors are present is a Gross Misdemeanor.

First Degree DWI: DWI charge is a felony when three or more qualified prior impaired driving incidents occurred in the previous ten years or defendant has been previously convicted of an impaired driving or vehicular homicide felony.

 

Determining Aggravating Factors: “When determining the number of aggravating factors present for purposes of this chapter...each qualified prior impaired driving incident within the ten years immediately preceding the current offense is counted as a separate aggravating factor.”

Mississippi

§ 63-11-30

First and second offenses are misdemeanors, third and subsequent offenses are felonies. The fourth offense is an automatic felony carrying 2 to 10 years in prison. For a fourth conviction, it does not matter how many years have passed from previous convictions.

Missouri

§§ 577.010, 577.012, 577.023, 558.011

First offense is a class B misdemeanor. A new offense for a:

  • Prior offender is a class A misdemeanor
  • Persistent offender is a class E felony
  • Aggravated offender is a class D felony
  • Chronic offender is a class C felony
  • Habitual offender is a class B felony.

With certain past DUI convictions, an additional conviction can be considered a class A felony.

Montana

§§61-8-401, 61-8-711, 61-8-714, 61-8-731 & 61-8-734

First, second and third offenses are misdemeanors. Fourth and subsequent offenses are felonies.

Nebraska

§§ 28-105, 28-106, 60-6, 196 & 60-6,197.03 

First, second and third offenses within 12 years are class W misdemeanors. Fourth offense within 12 years is a class IIIA felony. Fifth and subsequent offenses are class IIA felonies. 

 

If a driver, as part of current violation, had a BAC of .15 or more or refused to submit a test and:

  • Had one prior conviction, the violation is a class I misdemeanor.
  • Had two prior convictions, the violation is a class IIIA felony.
  • Had three prior convictions, the violation is a class IIA felony.
  • Had four or more prior convictions, the violation is a class II felony

Nevada

§§ 484C.400, 484C.410

First offense and second offense within 7 years are misdemeanors. Third offense within 7 years is a category B felony. Fourth and subsequent offenses following the felony conviction are also category B felonies regardless of time period between convictions. 

New Hampshire

§ 265-A:18

First offense is a class B misdemeanor, second and  third non-injury DUI offenses are class A misdemeanors. Fourth or subsequent non-injury DUI offenses are felonies, and DUI with serious bodily injury is a class B felony.

New Jersey

§ 39:4-50 

 

State v Hamm 577 A.2d 1259 (NJ 1990)

 

Drunk driving is a traffic offense, not a criminal offense. Penalties and fines do increase as number of offenses increase. 

New Mexico

§§ 66-8-102, 31-18-13, 30-1-6

First offense is a petty misdemeanor. Second and third offenses are misdemeanors. Fourth and fifth offenses are fourth degree felonies. Sixth and seventh offenses are third degree felonies. Eight and subsequent offenses are second degree felonies. 

New York

Veh. & Traf. Law § 1193

Driving while ability impaired offenses:

  • first offense is a traffic infraction.
  • second offense within 5 years is a traffic infraction.
  • third and subsequent offense within 10 years are misdemeanors.

Driving while intoxicated offenses:

  • first offense is a misdemeanor.
  • second offense within 10 years is a class E felony.
  • third offense within 10 years is a class D felony.
  • fourth and subsequent offenses within 15 years are Class D felonies.

North Carolina

§§ 20-138.1, 20-138.5

First, second, and third impaired driving offenses are misdemeanors. Fourth and subsequent impaired driving offenses within 10 years are class F felonies. 

North Dakota

§ 39-08-01

First offense and second offense within 7 years are class B misdemeanors. Third offense within 7 years is a Class A misdemeanor. Fourth and subsequent offenses within 15 years are Class C felonies.

Ohio

§ 4511.19

First offense and second offense within 10 years are first degree misdemeanors. Third offense within 10 years is a misdemeanor. Fourth and fifth offenses within 10 years are fourth degree felonies. Sixth and subsequent offenses within 20 years are fourth degree felonies.

 

If someone has pleaded guilty to a DUI felony in the past, regardless of when the conviction occurred, the violation is a third degree felony. 

Oklahoma

Tit. 47 § 11-902

First offense is a misdemeanor, second and subsequent offenses within 10 years are felonies.

Oregon

§ 813.010

First, second and third offenses within 10 years are class A misdemeanors. Fourth and subsequent offenses are class C felonies.

Pennsylvania

Tit. 75 § 3804

General Impairment (Undetermined BAC, .08-.099% BAC):

  • first and second offenses are ungraded misdemeanors.
  • third and subsequent offenses are second degree misdemeanors.

High BAC (.1-.159%)

  • first and second offenses are ungraded misdemeanors.
  • third and subsequent offenses are first degree misdemeanors.

Highest BAC (.16% and higher)

  • first offense is an ungraded misdemeanor.
  • second and subsequent offenses are first degree misdemeanors.

Puerto Rico

9 §1042

Non-injury DUI offenses are misdemeanors, first and second injury DUI offenses are misdemeanors, third or subsequent injury DUI offenses are felonies.

Rhode Island

§§ 11-1-2, 31-27-2

First and second non-injury DUI offenses within 5 years are misdemeanors, third and subsequent non-injury DUI offenses within 5 years are felonies. DUI offenses with serious bodily injuries are felonies.

South Carolina

§§ 16-1-20, 16-1-100, 56-5-2933, 56-5-2930

First offense is a misdemeanor, second offense within 10 years is a class C misdemeanor, third offense within 10 years is a class A misdemeanor, fourth and subsequent offenses within 10 years are class F felonies.

South Dakota

§§ 32-23-2, 32-23-3, 32-23-4, 32-23-4.6, 32-23-4.7, 32-23-4.1

First and second offenses within 10 years are class 1 misdemeanors, third offense within 10 years is a class 6 felony. Fourth offense within 10 years is a class 5 felony, fifth and subsequent offenses are class 4 felonies.

Tennessee

§§ 55-10-402, 55-10-405, 39-11-110, 39-11-114

First, second and third offenses within 10 years are class A misdemeanors. Fourth and fifth offenses within 10 years are class E felonies. Sixth and subsequent offenses in 10 years are class C felonies.

Texas

Penal Code §§ 49.04, 49.09

First offense is a class B misdemeanor. First offense with a BAC above .15% is a class A misdemeanor. Second offense within 5 years is a class A misdemeanor. Third and subsequent offenses within 5 years are third degree felonies.

Utah

§§ 41-6a-503, 41-6a-517

Driving under the influence of alcohol, drugs, or both:

  • first and second offenses are class B misdemeanors.
  • third and subsequent offenses within 10 years are third degree felonies.

Driving with any measurable controlled substance in body – lesser charge of a DUI:

  • All offenses are class B misdemeanors.

Vermont

Tit. 13 §1 & tit. 23 §1210

First and second offenses are misdemeanors, third and subsequent offenses are felonies.

Virginia

§§ 18.2-10, 18.2-270

First offense and second offenses within 10 years are class 1 misdemeanors, third and subsequent offenses within 10 years are class 6 felonies.

Virgin Islands

Tit. 20 § 493

First offense is a misdemeanor, subsequent offenses are felonies. 

Washington

§§ 46.61.502, 46.61.504

Driving Under the Influence:

  • first, second, and third offenses are gross misdemeanors.
  • fourth and subsequent offenses within 10 years are class B felonies.   

Physical Control of Vehicle Under the Influence:

  • first, second, and third offenses are gross misdemeanors.
  • fourth and subsequent offenses within 10 years are class C felonies. 

West Virginia

§ 17C-5-2

First and second offenses are misdemeanors, third and subsequent offenses within 10 years are felonies. 

Wisconsin

§§ 346.63, 346.65, 343.307, 939.60

First offense results in a forfeiture of $150-$300 and license suspension. Second and third offenses within 10 years are misdemeanors. Fourth offense in a lifetime is a class H felony. Fifth and sixth offenses in a lifetime are class G felonies. Seventh, eighth, and ninth offenses within a lifetime are class F felonies. Tenth and subsequent offenses in a lifetime are class E felonies. 

Wyoming

§§ 6-10-101, 31-5-233

First through third non-injury DUI offenses are misdemeanors. Fourth or subsequent non-injury DUI offenses within 10 years are felonies, serious injury DUIs are felonies.

 

Source:  NHTSA 2017 and NCSL 2017.