“I have a first-offense DUI. Is my case a felony or misdemeanor?”

People ask me this question a lot.  On the other hand, there are other people who cannot believe that a DUI, especially a first offense DUI, can be a felony.  After all, its just “traffic,” isn’t it?

Most first offense DUIs are in fact misdemeanor cases. In Illinois, the maximum sentence for a misdemeanor case is up to 364 days in jail and/or a fine of up to $2,500.  In most misdemeanor DUI cases, at least in the Chicagoland area, jail time is unusual.

However, this does not mean that a first time DUI cannot be a felony, or that you won’t go to jail, however your case is charged.

Here are the ways that a first offense DUI case can become a felony:

  1. At the time of the arrest, you did not possess a valid driver’s license or learners permit;
  2. At the time of the arrest, your driver’s license was suspended or revoked;
  3. You were driving when you knew or should have known that the vehicle you were driving did not have liability insurance;
  4. You operated a school bus with persons 18 or younger on board;
  5. You were the proximate cause of an auto accident that caused great bodily injury or death;
  6. You were involved in an accident causing great bodily injury or death while having a controlled substance in your breath, blood or urine.

A felony DUI is called an “aggravated DUI” and the penalties will range depending on the aggravating factors.

How would you know if your case was charged as a misdemeanor or a felony?  If you were charged with a misdemeanor, you would have been allowed to post bond at the station, or have been given an “I” bond allowing you to leave on your recognizance.  On the other hand, if you were charged with a felony, you would have been brought in front of a judge for a bond hearing, and then your case would have been continued for a preliminary hearing.

However, even if the officer did not initially charge you with a felony aggravated DUI, your case can be upgraded at a later time by an assistant state’s attorney after he or she has had an opportunity to review your case.  The state has 18 months to upgrade your misdemeanor case to a felony.