Is a DUI a Felony in Oklahoma?

November 30, 2021 by Sabah Khalaf

Not every DUI is charged the same, even if two cases are identical. Some are charged as misdemeanors, and some are charged as felonies. So, what makes a DUI a felony? It’s more complicated than you might think.

Under Oklahoma law, Driving Under the Influence (DUI) or Actual Physical Control (APC) can be charged as either a misdemeanor or a felony in the state of Oklahoma.

What Needs to be Shown to Prove Someone is Driving Under the Influence?

First and foremost, the State must prove you were actually driving the vehicle. Merely being inside the vehicle isn’t enough for a DUI (it is enough for Actual Physical Control of a vehicle while intoxicated, but we will talk more about that later). The State must also prove it was on a public roadway. This can be anything from the normal street to a parking lot. This piece is normally easy to establish. The only time this element isn’t met is when you are driving on private land. That normally occurs when people drive off-road vehicles such as 4 wheelers or tractors on privately owned farmland. The State must also prove that you are driving a motor vehicle. The term motor vehicle is used in a very broad sense; it is any vehicle that is either self-propelled or electrically powered. Finally, the State must prove intoxication. This is the element most often in dispute. In order to prove intoxication, the state uses a few things:

  1. A blood alcohol content (BAC) of .08 or greater as displayed by a blood test or breathalyzer
  2. Performance on standardized Field Sobriety Tests
  3. Any alcohol or drugs found in or around the vehicle
  4. General observations by the arresting officer (such as smell of alcohol or bloodshot eyes)

There is no legal limit for marijuana or other scheduled drugs. Any amount in your system is enough to constitute a DUI. While a breathalyzer cannot test for marijuana or drugs in your system, a blood test does, and any trace amounts are sufficient.

An aggravated DUI is not the same as a Felony DUI

One common misconception is that a misdemeanor DUI is when you blow between a .08 and a .14 on a breathalyzer and a felony DUI is when you blow a .15 or higher. However, this is incorrect. This distinguishes the difference between a DUI and an aggravated DUI. An aggravated DUI is still a misdemeanor and carries the same punishment as a regular DUI with one exception: an aggravated DUI requires the installation of an interlock device on your car if you’re convicted.

A DUI is a Predicate Offense

A DUI is something the law calls a predicate offense. This means the first time you commit the offense the punishment isn’t as harsh as later offenses. Additionally, it means that your first offense is used to enhance later offenses. Your first DUI is a misdemeanor, however, any additional DUI’s you receive after that DUI is a felony.

DUI is not the only Predicate offense Used to Enhance Your Charge to a Felony

Actual Physical Control (APC) of a vehicle while intoxicated occurs when you are found in your car drunk, but the car is not moving. This often occurs when an individual falls asleep drunk in the driver’s side of their car. It is also charged when you are drunk and hit something in the road, such as a light pole, and you abandon the car. APC is a predicate offense just like DUI. This means if you have a conviction for APC and then get a DUI, the DUI will be a felony. The reverse also applies; a prior DUI conviction can be used to enhance a new APC to a felony.

DWI is not a predicate

A DWI, Driving While Impaired, is charged when you are driving with a Blood Alcohol Content (BAC) between .05 and .08. Unlike a DUI, a DWI is not a predicate offense. This means a DWI will remain a misdemeanor, regardless of the number of DWI convictions you have. Be careful not to confuse this with charges in other states. For example, Texas’ DWI is the equivalent to an Oklahoma DUI.

DUI Convictions Can Only Be Used to Enhance for 10 years

Both a DUI and APC conviction can only be used to enhance within 10 years of the completion of your punishment. This means if you receive one year of probation and then get another DUI charge 9 years after your probation ends but 10 years after the date of the first DUI offense, your second DUI will be filed as a felony.

Difference in Punishment Between a Misdemeanor DUI and Felony DUI

Regardless of whether you are charged with a misdemeanor or a felony DUI there are certain classes and assessments you are required to participate in by statute. This means drug and alcohol assessments, a victim’s impact panel, and a DUI school are required for both a misdemeanor and a felony DUI. A misdemeanor DUI carries a maximum of one year in jail and a fine of up to $1,000. A felony DUI carries up to five years in prison and a fine of up to $2,500.

What if I have had my DUI expunged?

There is currently no consensus on how expunged DUIs are treated. Some counties will still file the second DUI as a felony, while others will not. The felony DUI statute explicitly allows DUIs to be filed as felonies even if you receive a deferred sentence. This means DUIs can be filed as felonies even if a prior DUI has been expunged. However, it is less likely that the attorney charging the DUI will find the prior DUI conviction to enhance the new DUI if you get your previous DUI expunged.

Special Circumstances that make DUIs a felony

A first offense DUI can still be a felony in a few special circumstances. If a person dies as a result of you hitting them while driving under the influence, the charge will be murder in the second degree or manslaughter in the first degree, both of which are felonies. Likewise, if you hit someone while driving under the influence and cause bodily injury you may face felony charges for DUI great bodily injury. A great bodily injury occurs when the injury creates a substantial risk of death or causes a significant bodily disfigurement of some kind.

If you or a loved one have been charged with a Felony DUI, and need help in navigating it, please Contact Us for a free consultation.

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