Aggravated DUI: Harsh Penalties for a Serious Offense (2025)

What Is Aggravated DUI?

In most states, a DUI constitutes a base offense that prosecutors can build on when faced with egregious cases. States approach these egregious cases in two ways.

Some states only have one DUI charge, and aggravating factors are presented at trial and taken into account during sentencing. California, Maryland and many other states fall into this category.

Other states, like New York and Ohio, have separate criminal charges for certain violations. New York calls its charge “aggravated DUI,” while Ohio calls this violation “high-test OVI.”

What Makes a DUI Aggravated?

To understand what makes a DUI aggravated, it helps to first know what a basic DUI means. States usually have two violations that can result in a DUI charge.

First, a driver commits a DUI when they drive while their abilities are impaired by drugs or alcohol. To prove this offense, prosecutors usually need an eyewitness, such as a police officer, who saw you driving erratically. Speeding, weaving, hitting the curb or other illegal driving maneuvers might justify an impairment charge.

Second, a driver cannot drive with a blood alcohol concentration (BAC) over the state’s legal limit. The legal limit in most states is 0.08%, although Utah has a lower limit of 0.05%. Prosecutors only need a breath, blood or urine test showing a BAC over the limit to prove a per se offense.

States vary in the DUI aggravating factors they apply to these charges. Depending on the state, a driver may be charged with aggravated DUI if he/she meets any of the following criteria:

• Has a BAC much higher than the legal limit
• Commits a repeat DUI offense
• Drives on a suspended license
• Has a child in the vehicle with them
• Causes an accident that results in injury, serious injury or death

Many states also have zero-tolerance laws for intoxicated drivers under 21. However, rather than treating this offense as an aggravated DUI, these laws often impose a lower legal limit since these drivers cannot consume alcohol legally.

Punishment for DUI vs. Aggravated DUI

Drivers facing a DUI charge with aggravating factors often wonder, “Is aggravated DUI a felony?” The answer depends on the state where prosecutors filed the charge.

For background, the dividing line between felonies and misdemeanors happens at one year of imprisonment. If the possible sentence is up to one year, the charge is usually treated as a misdemeanor. Felonies have a sentence of one year or longer.

Most states do not automatically increase the level of a DUI offense to a felony when prosecutors allege aggravating factors, with a few exceptions. Instead, states alter other aspects of sentences, including:

Increased Minimum Mandatory Sentence

Someone convicted of aggravated DUI might have a mandatory minimum jail sentence, while no minimum mandatory jail sentence may apply to a simple DUI.

For example, in Ohio, a first-time offender convicted of DUI can escape jail time by being sentenced to a driver intervention program. But a first-time offender convicted of aggravated DUI must serve at least three days in jail even if the judge sentences them to the driver intervention program.

Increased Maximum Sentence

Some states increase the maximum sentence for aggravated DUI compared to simple DUI. In Maryland, a simple DUI has a maximum jail sentence of up to two months for a first offense. An aggravated DUI, defined as a DUI with a child under 14 in the vehicle, has a maximum jail sentence of up to one year.

Mandatory Probation

In many states, the court has the discretion to suspend or defer the jail sentence for both simple and aggravated DUI. A suspended or deferred sentence means the court does not require the offender to report to jail to serve the sentence. Instead, the offender remains free as long as they comply with the court’s orders. If a violation occurs, the offender must serve the jail sentence.

Some states take this option away from judges when a driver is convicted of aggravated DUI. Other states set a limit on the amount of the sentence that can be suspended. For example, some states require the driver to serve at least a few days of their sentence and allow the judge to suspend the rest.

Another option used by states is to require probation if the judge suspends the sentence. This is the path implemented by Oklahoma. Someone convicted of aggravated DUI in Oklahoma must be sentenced to at least one year of probation after or in place of a jail sentence.

The probation typically includes periodic alcohol testing at the driver’s expense. The driver must also install an ignition interlock device for at least 90 days. This device only starts the offender’s car after they pass a breathalyzer test.

Learn More About DUI Laws From ConsumerShield

An aggravated DUI conviction can cost a driver their freedom. ConsumerShield is dedicated to helping people understand their legal rights when facing DUI charges. Contact us for a free case review and a referral to a qualified DUI lawyer.