Misdemeanor or felony: how Pennsylvania grades a DUI
Grading is set by 75 Pa.C.S. § 3803. Two things drive it: the type of DUI charged and how many prior offenses you have. Under § 3806, a prior offense generally means a DUI conviction or a similar court disposition from within 10 years of the new offense, counted at sentencing.
The types that matter most are the serious ones: refusing a breath test (or a blood test under a search warrant) on a general impairment charge, a BAC of 0.16% or higher under § 3802(c), and drug DUI under § 3802(d). A first offense of these types is an ungraded misdemeanor, and a second is a first-degree misdemeanor. The felony rules below start at the third offense.
When a DUI is a felony
- Third offense with a refusal, highest BAC or drugs: a felony of the third degree. This is the change made by Act 153 of 2018, which took effect 60 days after it was signed on October 24, 2018.
- Fourth or later offense with a refusal, highest BAC or drugs: a felony of the second degree, under the 2022 law known as Deana's Law (Act 59 of 2022).
- Fourth or later DUI of any type: a felony of the third degree. The same applies to any DUI by someone previously convicted of homicide by vehicle while DUI.
- A child in the car: a DUI with a passenger under 18 is a first-degree misdemeanor for a first or second offense and a felony of the third degree for a third or later offense.
- Serious injury or death: separate felony charges, explained below.
Under 18 Pa.C.S. § 1103, a third-degree felony carries a maximum of 7 years in prison and a second-degree felony a maximum of 10 years. Those are maximums, not typical sentences. Repeat DUI sentences also carry mandatory minimum jail terms under § 3804, and our second and third DUI page covers them.
A new DUI after ARD
In 2025, in Commonwealth v. Shifflett, the Pennsylvania Supreme Court held that a prior acceptance into ARD could not be counted as a prior offense to increase a DUI sentence. The legislature responded with Act 58 of 2025, effective December 22, 2025. It created a separate offense under § 3802(h) for a DUI committed within 10 years after completing ARD. That charge has its own grading and can push a later case into felony territory sooner. If you completed ARD in the past, the exact dates and records matter. Our ARD guide explains the program.
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Homicide and aggravated assault by vehicle while DUI
When a DUI is connected to a death or serious injury, the case can include a separate felony charge. Both of the charges below require a DUI conviction plus proof that the DUI caused the harm.
- Homicide by vehicle while DUI: under § 3735, a felony of the second degree with a mandatory minimum of 3 years in prison, and the law requires a consecutive mandatory term for each victim. It becomes a felony of the first degree, with higher mandatory minimums, if the person has a prior DUI-related conviction or disposition.
- Aggravated assault by vehicle while DUI: under § 3735.1, a felony of the second degree when a DUI negligently causes serious bodily injury to another person. An additional term of up to 2 years can be added if the driver was also unlicensed or driving while suspended.
These cases depend heavily on accident reconstruction, medical records and the timing of any blood test. What actually caused the crash is often as important as the BAC result.
What a felony DUI conviction can mean beyond jail
- A longer license suspension. A DUI graded as a first-degree misdemeanor or a second- or third-degree felony carries an 18-month suspension under § 3804(e).
- Ignition interlock. Most repeat offenders must drive with an interlock for at least a year before full driving privileges return.
- Consecutive sentences. Under Deana's Law, a DUI sentence for someone with two or more prior offenses must run consecutively to other sentences, except where offenses merge.
- A permanent felony record. A felony conviction can affect jobs, professional licenses, housing and firearm rights.
How felony DUI cases are defended
A felony grade depends on facts the Commonwealth has to prove. Defense work often starts with the record and the test results:
- Counting prior offenses correctly. We check the dates, the 10-year lookback and whether each prior really qualifies.
- Challenging the test or the refusal. If a refusal or a highest-tier BAC is what makes the charge a felony, the warnings, the timing and the lab work all matter. See blood tests and the two-hour rule and refusing a breath or blood test.
- Testing the stop and the arrest. A stop without reasonable suspicion, or an arrest without probable cause, can lead to suppression of evidence.
- Out-of-state priors. A DUI from another state counts only if it is substantially similar to a Pennsylvania DUI offense, which is worth checking.
- Causation in crash cases. A DUI charge alone does not prove the DUI caused the crash.
A felony DUI case usually starts the same way as any other DUI: a preliminary hearing before the local magisterial district judge, then the county Court of Common Pleas if the case moves forward. The earlier the prior record and test results are reviewed, the more options there may be.
For the full picture of tiers and penalties, see our PA DUI penalties article and our Pennsylvania DUI defense guide.
This page is general information, not legal advice.
Prior results do not guarantee a similar outcome. Pennsylvania DUI law changes often, and this page reflects the law as of October 2026. Every case depends on its own facts.