A few readers inform us that they have been told that they have a felony on their record, and they have no idea what it refers to. Try as they might, they aren’t able to identify any such charge in their past history of offences –other than what they believe to be a totally unrelated DUI charge.
A run-of-the mill DUI (or a DWI, as it is referred to in some states) is, in many cases, a Gross Misdemeanor.
But as is the case with every law, there is a foundational premise, and there are exceptions.
Let’s delve into the topic a bit.
Is a Felony Charge is Costing You Jobs, or Loan Approvals?
Do you have a DUI on your record which seems to have morphed into a Felony? Has this cost you jobs and/or loan opportunities?
If a background search has resulted in a “prognosis” of a Felony, than it might be due to the following extenuating circumstances:
You might have had multiple DUI’s within a set time limit, or may have had prior convictions. If you have been convicted of vehicular homicide or if you assaulted someone while under the influence, this, too, will raise the level of offense.
Keep in mind that each state has their own legislature (in addition to our federal legislative body), which means that laws vary from state to state. In Washington, you need to have had five prior offences within a period of ten years for your DUI to count as a Felony.
These prior convictions or offences had to have fallen under the following categories: DUI, Reckless Driving, Negligent Driving-1st Degree; Physical Control (which, in its entirety, means Physical Control of a Vehicle While Under the Influence); Reckless Endangerment and, of course, DUI.
“Those Cases Don’t Apply To Me. Still, I Was Told I Have a Felony On My Record. What Else Can It Be? I Have Not Been in Trouble Otherwise.”
If your DUI isn’t a felony due to the above-explained circumstances, were you in trouble as a youth? Were you perhaps charged with a juvenile felony? Why don’t you sit down with an attorney for an initial consultation about this? Ask him or her to tell you what, exactly, your criminal history consists of.
Something else to keep in mind: there are instances where a record has been erroneously linked to someone else’s, if the name, birth date, etc., is the same. This can be resolved.
What’s the Penalty for a Gross Misdemeanor, Then?
If the charge was a “simple” DUI charge, you might be looking at a $5000 fine and 365 days of incarceration, maximum, in most states.
But There Are States That Are More Lenient, Right?
You might not receive the maximum sentencing. Most courts, however, take a dim view of DUI’s. Also, if you continue to be charged with DUI’s, in most states of residence you will be charged with a Felony. (Three is the point at which many states change the charge from Gross Misdemeanor to Felony).
And, again, if your DUI resulted in serious bodily harm, or even death, it will automatically be charged as a Felony.
Isn’t There Any Way to Have These Charges Removed From A Record?
Many defendants would understandably like to erase reckless, irresponsible driving and its resultant damage to themselves and to others, but that is not easily done. If you are referring to having your record expunged—which means that it will be as if it never were—you need to consult with an attorney in the field who can advise you as to whether your history or record allows this.
In some states, like Arkansas, it is now possible for (non-felonious) DUI or DWI charges to be sealed—not exactly the same as expunged, as such records can be unsealed in certain cases, but for background checks it can be rendered “invisible”– five years after the conviction date.
My Friend was Charged with Physical Control. I Always Get That Mixed Up With DUI. What’s the Difference?
The part that differs slightly is what the plaintiff or government will have to prove. If your friend was charged with DUI, it is necessary only to prove to the court that the defendant was driving. In Physical Control of a Vehical While Under the Influence, it must be demonstrated that the defendant was in control of the vehicle.
You can be in actual physical control of the vehicle without having been observed to be driving the vehicle. For instance, let’s say you were arrested while you were seated in the driver’s seat, with the ignition key in the lock. Even ‘though the car was parked, you will have been in Physical Control.
If your friend had been driving the vehicle when he or she was pulled over, that would have been a DUI or a DWI.
So Not Driving While Under the Influence Can Be a Crime?
Yes. If you are sitting in a parked car while under the influence of alcohol, you are deemed to be the person who will ultimately turn the key in the ignition and get back on the road.
OK. What if I was a Passenger and Tried to Grab the Steering Wheel from My Friend if I Saw He Was Not Maneuvering Well?
If you grabbed the steering wheel, and you were intoxicated, you were in control of the vehicle, and, thus, a Physical Control charge would be likely.
Advice: In re: the above situation, you might consider asking your friend to park safely off the road or highway. There is a defense which is known as Safely Off The Roadway.
Or, if you are not inebriated, take over for him. I’m sure your friend would appreciate the “cab service” if it gets everybody home safely, and prevents an unfortunate happenstance.