When DUI Becomes a Felony in Pennsylvania, Third Offense, Death, or Refusing Tests
DUI becomes a felony in Pennsylvania under specific circumstances: third offense (or fourth) within 10 years, refusing chemical tests with prior offenses, causing death or serious injury, having a minor passenger with prior offenses, or any DUI if previously convicted of homicide by vehicle while DUI.
Is DUI a Felony in Pennsylvania?
Short Answer: It depends on circumstances and prior offenses.
First and Second Offenses: Misdemeanors (typically)
Third and Subsequent Offenses: Felonies
Pennsylvania’s Three-Tier DUI System
Pennsylvania classifies DUI into three tiers based on Blood Alcohol Content (BAC) under 75 Pa.C.S. § 3802:
Tier 1: General Impairment
- BAC 0.08% – 0.099%
- Lowest penalties
Tier 2: High BAC
- BAC 0.10% – 0.159%
- Also includes:
- Causing accident with injury, death, or property damage
- Driving a commercial vehicle
- Being under age 21
Tier 3: Highest BAC
- BAC 0.16% or higher
- Refusing chemical testing
- Controlled substances in system
- Highest penalties
Related article: Yes, You Can Get a DUI on a Bike in 19 States—Here’s Where and What Happens
When DUI Becomes a Felony: The Rules
Third Offense (10-Year Lookback)
75 Pa.C.S. § 3803(b)(3):
Any third DUI offense within 10 years is a felony of the third degree, regardless of BAC tier.
Fourth or Subsequent Offense:
Also felony of the third degree.
Penalties:
- Up to 7 years prison
- $2,500 – $15,000 fine
- 18-month license suspension
Refusing Chemical Tests with Priors
75 Pa.C.S. § 3803(b)(4.1) – “Deana’s Law” (2022):
If you refuse breath or blood testing (or test positive for highest BAC/controlled substances):
With Two Prior Offenses:
- Felony of the third degree
- Up to 7 years prison
With Three or More Prior Offenses:
- Felony of the second degree
- Up to 10 years prison
- $5,000 – $25,000 fine
Minor Passenger (Under 18) with Priors
75 Pa.C.S. § 3803(b)(5):
DUI with minor under 18 in vehicle:
First or Second Offense:
- Misdemeanor of the first degree
Two or More Prior Offenses:
- Felony of the third degree
Previous Homicide by Vehicle While DUI Conviction
75 Pa.C.S. § 3803(b)(3):
ANY DUI offense after a prior homicide by vehicle while DUI conviction is a felony of the third degree, regardless of when the prior conviction occurred or current BAC level.
DUI Causing Death
75 Pa.C.S. § 3735 – Homicide by Vehicle While DUI:
Unintentionally causing death while DUI:
No Prior DUI:
- Felony of the second degree
- Mandatory minimum 3 years prison (consecutive for each victim)
One Prior DUI or Serious Traffic Offense:
- Felony of the first degree
- Mandatory minimum 5 years prison (consecutive for each victim)
Two or More Prior DUIs:
- Felony of the first degree
- Mandatory minimum 7 years prison (consecutive for each victim)
DUI Causing Serious Bodily Injury
75 Pa.C.S. § 3735.1 – Aggravated Assault by Vehicle While DUI:
No Prior DUI:
- Felony of the second degree
With Priors: Enhanced grading and mandatory minimums similar to homicide by vehicle.
What Is a “Prior Offense”?
10-Year Lookback:
Pennsylvania counts offenses within 10 years from date of current offense.
What Counts as Prior:
- DUI conviction
- ARD (Accelerated Rehabilitative Disposition) acceptance
- Juvenile adjudication of delinquency
- Juvenile consent decree
- Out-of-state DUI conviction for substantially similar offense
Penalties: Misdemeanor vs. Felony DUI
First Offense Misdemeanor (General Impairment)
Tier 1 (0.08-0.099% BAC):
- 6 months probation (no jail required)
- $300 fine
- Alcohol highway safety school
- Drug/alcohol treatment if ordered
Tier 2 (0.10-0.159% BAC):
- 48 hours – 6 months jail
- $500 – $5,000 fine
- 12-month license suspension
- Ignition interlock
Tier 3 (0.16%+ BAC, refusal, drugs):
- 72 hours – 6 months jail
- $1,000 – $5,000 fine
- 12-month license suspension
- Ignition interlock
Second Offense Misdemeanor
Tier 1:
- 5 days – 6 months jail
- $300 – $2,500 fine
- 12-month license suspension
- Ignition interlock
Tier 2:
- 30 days – 6 months jail
- $750 – $5,000 fine
- 12-month license suspension
- Ignition interlock
Tier 3:
- 90 days – 5 years jail
- $1,500 – $10,000 fine
- 18-month license suspension
- Ignition interlock
Third Offense Felony
All Tiers (Felony of Third Degree):
- 1 – 7 years prison
- $2,500 – $15,000 fine
- 18-month license suspension
- Ignition interlock
- Consecutive sentencing if multiple offenses
What Is ARD in Pennsylvania?
Accelerated Rehabilitative Disposition:
First-time DUI offenders may qualify for ARD, a diversionary program that avoids conviction.
Requirements:
- First offense
- No accident with serious bodily injury
- No child under 14 in vehicle
- Completion of program requirements
Benefits:
- No criminal conviction
- Can expunge record after completion
- Shorter license suspension
- No jail time
Consequences: ARD acceptance counts as a “prior offense” for sentencing purposes if you get another DUI within 10 years.
Pennsylvania’s Implied Consent Law
75 Pa.C.S. § 1547:
By driving in Pennsylvania, you’ve automatically consented to chemical testing if arrested for DUI.
Refusing Tests:
Administrative Penalties:
- First refusal: 12-month license suspension
- Second refusal (within 10 years): 18-month suspension
Criminal Penalties: Refusal places you in Tier 3 (highest penalties) even if your actual BAC was lower.
With prior offenses, refusal triggers felony charges under Deana’s Law.
Deana’s Law (2022): What Changed
Act 59 (July 2022):
Key Changes:
Enhanced Grading for Refusals:
- Third refusal: Felony of third degree
- Fourth refusal: Felony of second degree
Consecutive Sentencing: DUI sentences must be served consecutively (not concurrently) if you have two or more prior offenses.
Sentencing Enhancements: Additional penalties for fourth or subsequent offenses.
License Suspension: 18-month suspension for first-degree misdemeanor and felony DUIs.
Your Rights When Stopped for DUI
During the Stop:
- Provide license, registration, insurance
- You can refuse field sobriety tests (walking, one-leg stand)
- You can refuse preliminary roadside breath test
After Arrest:
- Right to attorney before answering questions
- Chemical testing required under implied consent (blood or breath at station)
- Refusal triggers higher penalties
Important: Refusing the roadside preliminary breath test does NOT have the same consequences as refusing the official chemical test after arrest.
The Legal Process
1. Arrest: Charged with DUI, given preliminary hearing date.
2. Arraignment: Formal charges read, bail set (if necessary).
3. Preliminary Hearing: Commonwealth must show prima facie case. Judge determines if case proceeds.
4. Formal Arraignment: Arraigned on charges in Court of Common Pleas.
5. Pre-Trial Motions: Defense can file motions to suppress evidence, challenge stop.
6. Trial or Plea: Case goes to trial or negotiated plea agreement.
7. Sentencing: If convicted, judge imposes sentence within statutory guidelines.
Defense Strategies for Pennsylvania DUI
Challenge the Stop: Was there reasonable suspicion for the traffic stop?
Challenge Testing:
- Was blood draw lawful?
- Was breathalyzer properly calibrated?
- Were testing procedures followed?
Challenge Probable Cause: Did officer have probable cause for arrest?
Medical Conditions: Do medical conditions explain observations (diabetes, neurological disorders)?
Rising BAC Defense: Was BAC lower at time of driving than at time of testing?
Can You Expunge a Felony DUI?
Generally No:
Pennsylvania felony convictions cannot be expunged.
Exception:
ARD (even if later offense would be felony) can be expunged after completion.
Pardon:
Governor’s pardon is the only way to clear a felony DUI conviction from your record.
2026 Legal Developments
Status as of January 2026:
No new legislative changes to Pennsylvania DUI classification laws.
Deana’s Law (2022) remains in effect with enhanced penalties for repeat offenders who refuse testing.
Courts continue strictly enforcing consecutive sentencing requirements for defendants with two or more prior offenses.
Frequently Asked Questions
Is a first DUI a felony in Pennsylvania?
No. First-offense DUI is a misdemeanor unless it causes death or serious bodily injury.
How many DUIs until it’s a felony in PA?
Third DUI within 10 years is a felony of the third degree.
What if I refuse the breathalyzer?
First refusal: 12-month license suspension. Third refusal with priors: Felony of the third degree.
Does ARD count as a conviction?
Not for most purposes, but it DOES count as a prior offense if you get another DUI within 10 years.
Can I get a felony DUI reduced to a misdemeanor?
Rarely. Felony classification is based on prior offenses and aggravating factors, not negotiable.
What is the lookback period in Pennsylvania?
10 years from date of prior offense to date of current offense.
Do out-of-state DUIs count?
Yes. Substantially similar out-of-state convictions count as prior offenses in Pennsylvania.
What happens if I get a DUI with my child in the car?
First or second offense: Misdemeanor of first degree. With two or more priors: Felony of third degree.
Can I drive with an Occupational Limited License (OLL)?
Maybe. Eligibility depends on offense level and circumstances. Third and subsequent offenders face restrictions.
What is the maximum jail time for felony DUI?
Third-degree felony: Up to 7 years. Second-degree felony: Up to 10 years. First-degree felony (homicide): Up to 20 years.
Will I go to prison for a third DUI?
Likely. Third-offense DUI is a felony with mandatory minimum sentences ranging from 1 year to multiple years depending on tier and circumstances.
What are the fines for felony DUI?
Third-degree felony: $2,500 – $15,000. Second-degree felony: $5,000 – $25,000.
Key Takeaways
- Third DUI within 10 years = Felony of third degree (all tiers)
- Refusing tests with priors = Felony (third-degree with 2 priors, second-degree with 3+)
- DUI with minor passenger and 2+ priors = Felony
- DUI causing death = Felony (second or first degree depending on priors)
- Prior homicide by vehicle conviction = any new DUI is felony
- Deana’s Law (2022) enhanced penalties for refusals and repeat offenders
- ARD counts as prior offense for future DUI sentencing within 10 years
- Felony DUI cannot be expunged (except ARD)
- Consecutive sentencing required with 2+ prior offenses
- 10-year lookback period for prior offenses
Bottom Line
Pennsylvania takes DUI seriously, especially repeat offenses. While first and second offenses are typically misdemeanors, third offenses become felonies carrying up to 7 years in prison.
If you’re facing DUI charges—especially with prior offenses—consult an experienced Pennsylvania DUI attorney immediately. Felony convictions carry life-altering consequences: prison time, permanent criminal record, employment barriers, and professional license impacts.
The difference between misdemeanor and felony DUI isn’t just severity—it’s your future.
About the Author
Sarah Klein, JD, is a former criminal defense attorney with hands-on experience in cases involving DUIs, petty theft, assault, and false accusations. Through All About Lawyer, she now helps readers understand their legal rights, the criminal justice process, and how to protect themselves when facing charges.
Read more about Sarah