Is a DUI a Felony or a Misdemeanor in Florida? How the Charge Gets Decided
Most first and second DUIs in Florida are misdemeanors. Three things push a case into felony territory, and the line is drawn by dates and injuries, not by how many times you've been pulled over.
The short answer is that most DUIs in Florida are misdemeanors, but the same arrest can be charged as a felony when the facts line up a certain way. The longer answer matters more, because the facts that push a case into felony territory are usually fixed before you ever walk into a courtroom: how many prior convictions you have, when they happened, and whether anyone was hurt.
This article walks through how Florida Statute § 316.193 draws that line, what the penalties look like on each side of it, and why the felony label carries consequences that outlast any sentence.
What Florida Law Says a DUI Is
Under § 316.193, a person commits DUI when they drive, or are in "actual physical control" of, a vehicle and either of two things is true: their normal faculties are impaired by alcohol, a controlled substance, or a chemical substance, or their blood- or breath-alcohol level is .08 or higher.
Notice the "or." Prosecutors do not need a breath test if they can show impairment through driving pattern, field sobriety exercises, and officer observations. And they do not need to prove impairment if they have a reading of .08 or above. That two-track structure is why almost every part of a DUI stop can become a point of dispute in the case.
"Actual physical control" also means you do not have to be moving. Sitting in a parked car with the engine running and the keys within reach has been enough to support a charge.
When a DUI Is a Misdemeanor in Florida
A first or second DUI with no crash and no injuries is a misdemeanor. So is a third DUI if more than 10 years have passed since your last conviction.
| Offense | Jail | Fine | Enhanced (BAL .15+ or a minor in the car) |
|---|---|---|---|
| First DUI | Up to 6 months | $500–$1,000 | Up to 9 months; $1,000–$2,000 |
| Second DUI | Up to 9 months | $1,000–$2,000 | Up to 12 months; $2,000–$4,000 |
| Third DUI, more than 10 years after the last | Up to 12 months | $2,000–$5,000 | Fine of at least $4,000 |
Misdemeanor does not mean minor. A first conviction also carries up to a year of probation, 50 hours of community service, DUI school, a 10-day vehicle impoundment, and a license revocation of 180 days to one year. A second DUI within five years of the first adds a mandatory 10 days in jail (48 hours of it served consecutively), a five-year license revocation, and at least a year with an ignition interlock device.
One more point that surprises people: Florida does not allow a withhold of adjudication on a DUI. If you are found guilty, you are convicted, and that conviction cannot later be sealed or expunged. Even the misdemeanor version is permanent.
When a DUI Becomes a Felony in Florida
Four situations turn a Florida DUI into a felony.
A third DUI within 10 years of a prior conviction. This is a third-degree felony punishable by up to five years in prison, with a mandatory minimum of 30 days in jail (48 hours consecutive), a fine of $2,000 to $5,000, a 10-year license revocation, and at least two years with an ignition interlock.
A fourth or subsequent DUI. A fourth conviction is a third-degree felony no matter how much time has passed. It carries up to five years in prison, a fine of at least $2,000 (at least $4,000 with a .15 BAL or a minor in the vehicle), and permanent revocation of your driver license.
DUI causing serious bodily injury. If the crash causes serious bodily injury to another person, the charge is a third-degree felony with up to five years in prison, even on a first offense. A crash that causes only property damage or non-serious injury is a first-degree misdemeanor, punishable by up to a year in jail.
DUI manslaughter. Causing a death while driving under the influence is a second-degree felony punishable by up to 15 years in prison, with a four-year mandatory minimum. If the driver leaves the scene, it becomes a first-degree felony with up to 30 years. And since October 1, 2025, a second or subsequent conviction for DUI manslaughter, BUI manslaughter, vehicular homicide, or vessel homicide is a first-degree felony as well, under the changes known as Trenton's Law.
The 10-Year Clock: How Prior Convictions Are Counted
The felony question often comes down to arithmetic, and the arithmetic has rules.
The statute measures from the date of the prior conviction to the date of the new offense, not from arrest to arrest. A third DUI is a felony when the new offense occurs within 10 years after a prior conviction. A second DUI triggers mandatory jail when the new offense occurs within five years after a prior conviction.
Convictions from other states for comparable offenses generally count as prior convictions in Florida. A DWI from Texas or an OWI from Michigan can be the prior that turns a Florida third DUI into a felony.
The State also has to prove the priors. Certified records, the identity of the person convicted, and the validity of the earlier plea are all things a defense attorney examines closely. When a prior cannot be established properly, the charge may not support felony treatment.
Why the Felony Label Matters Beyond the Sentence
A felony DUI is filed in circuit court rather than county court, and it moves through a different process with different stakes. But the more lasting difference is what a felony conviction does outside the courtroom:
- Loss of the right to possess a firearm under state and federal law
- Loss of voting rights until the sentence, including probation and financial obligations, is complete
- Consequences for professional licenses, security clearances, and commercial driver licenses
- Serious immigration consequences for non-citizens
- A permanent felony record that appears on employment and housing background checks
Because a DUI conviction cannot be withheld, sealed, or expunged, these consequences are not temporary.
What Changed on October 1, 2025
Trenton's Law (House Bill 687) made two changes that affect how these cases are charged. First, refusing a lawful breath or urine test is now a crime under § 316.1939, even on a first refusal, in addition to the license suspension that already applied. Second, repeat DUI manslaughter and related homicide offenses were elevated to first-degree felonies. The changes apply to offenses committed on or after October 1, 2025, so the date of the offense controls which version of the law applies.
Where the Felony Question Gets Decided Early
In Orange and Osceola County, the classification of a DUI charge is often shaped in the first weeks of a case:
- The 10-day window. After a DUI arrest, you have 10 days to request a formal review hearing with the DHSMV or waive it and apply for a hardship license. This is separate from the criminal case and the deadline does not move.
- The charging decision. The State Attorney reviews the arrest before formally filing. Prior convictions, the timing of those convictions, crash details, and the breath or blood result all factor into whether the case is filed as a misdemeanor or a felony.
- Diversion eligibility. The Ninth Judicial Circuit offers a DUI pretrial diversion program for certain first-time misdemeanor cases. Felony charges, crashes, and high breath results are generally disqualifying, which is one more reason the classification matters.
At Casagrande Law, we review each of these points at the start of every DUI case, in English or Spanish, from our offices in Orlando and Tampa.
Frequently Asked Questions
Is a first DUI in Florida a felony?
A first DUI without a crash is a misdemeanor. It becomes a felony only if the incident caused serious bodily injury or death.
Does a DUI from another state count toward a felony in Florida?
Generally, yes. Florida treats out-of-state convictions for comparable offenses as prior convictions when deciding whether a new DUI is a second, third, or fourth offense.
Can a felony DUI be reduced to a misdemeanor?
It depends on the facts. If the State cannot properly prove a prior conviction, or if the timing does not fall within the statutory window, the case may not support a felony charge. Each case turns on its own records and evidence.
How long does a DUI stay on my record in Florida?
Permanently. Florida law does not allow a DUI conviction to be sealed or expunged, and the DHSMV keeps DUI convictions on driving records for 75 years.
What is the difference between DUI with injury and DUI with serious bodily injury?
Injury that is not "serious bodily injury" as defined in the statute is a first-degree misdemeanor. Serious bodily injury, meaning injury that creates a substantial risk of death or serious disfigurement or impairment, makes the charge a third-degree felony.
This article is for general information and is not legal advice. Florida DUI law changes, and the facts of your case control. If you or a family member has been arrested for DUI in Orange, Osceola, or Hillsborough County, contact Casagrande Law for a confidential consultation. Hablamos español.
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