Can the prosecutor turn a misdemeanor DUI into a felony DUI after you’ve already been charged with a misdemeanor?
Yes. The prosecutor can change a charge of DUI to a felony DUI even after he or she charges you with a misdemeanor.
What are the reasons why a DUI can become a felony DUI?
If you are charged with misdmeanor driving under the influence, and it is your second or greater offense of driving under the influence, there is the realistic possibility that the prosecutor will upgrade your case to a felony. The difference between a misdmeanor charge and a felony charge is significant in both the opportunity at trial and sentencing.
You have an opportunity to have a trial on both a misdemeanor and a felony charge. However, it is preferable to proceed on a less serious charge because there is a lesser punishment involved should a person be found guilty. For example, for a felony DUI, the punishment could be up to three years or greater in the Illinois Department of Corrections.
Because the punishment on a felony is significantly greater, you and your attorney have to carefully weigh the possibility of winning versus obtaining a more significant sentence before you request a hearing or trial from a judge.
Is there a great chance that I’ll serve jail time on a felony DUI?
A misdemeanor judge rarely sends a person to jail. However, a felony judge sentences individuals to life sentences (for some crimes–not DUI’s), so it’s no big deal for a felony judge to hand you three years of prison. Felony judges handle murder, robbery, rape, and any other major cases. Your felony DUI case will be in the same room as these cases.
Therefore, as an attorney, I can take steps to try to prevent your DUI from being upgraded to a felony case. The most important step is to seek an early disposition of your case before a prosecutor can refer the case to felony review.
What can be done to stop the charge from being upgraded to a felony?
As an attorney, I can attempt to dispose of the case on the first court appearance. This means setting up the best possible deal and closing the case. Once a deal is entered and accepted by the judge, the prosecutor cannot charge you again with the same offense. Also, he or she cannot change the charge from a misdemeanor to a felony.
As each case presents its own set of facts, call me to discuss the specifics of your case.