Is a DUI a Felony in Virginia? Third Offense, Injury, Death

Yes, a DUI is a felony in Virginia in three situations: when the driver picks up a third DUI within 10 years, when the offense causes serious bodily injury or death, or when the driver already has a prior felony DUI conviction on record. Everything else — a first or second offense with no injury — is a Class 1 misdemeanor. Felony DUI brings prison time, mandatory minimums the judge cannot suspend, and an indefinite license revocation that has no automatic end date.

Third DUI Within 10 Years

This is the most common path from misdemeanor to felony. A third DUI committed within 10 years of the first is a Class 6 felony, punishable by one to five years in prison or, at the court’s discretion, up to 12 months in jail and a fine of up to $2,500.¹²

Whatever sentence the judge lands on inside that range, at least 90 days must be served, plus a mandatory minimum fine of $1,000. If all three offenses fell within a five-year window rather than 10, the mandatory minimum jail time doubles to six months.¹ The 10-year clock runs from the dates the offenses were committed, not from the dates of conviction.

Fourth or Subsequent DUI Within 10 Years

A fourth or later DUI within 10 years is still a Class 6 felony, but the mandatory minimum prison time jumps to one full year. That year cannot be suspended, and the judge no longer has the option of substituting jail time and a fine.¹ The practical difference between a third and fourth offense is 90 days versus a full year as the absolute floor.

DUI Causing Serious Bodily Injury

A DUI that causes serious bodily injury can be charged as a felony on its own, regardless of the driver’s record. Virginia defines serious bodily injury as harm involving a substantial risk of death, extreme pain, obvious disfigurement, or lasting loss of function in a body part or organ.³

The offense has two tiers. When the driving was reckless enough to show disregard for human life and caused serious bodily injury, it is a Class 6 felony punishable by one to five years in prison. When that same reckless conduct causes serious injury that leaves permanent and significant physical impairment, the charge elevates to a Class 4 felony carrying two to 10 years.³

DUI Causing Death

A DUI that results in someone’s death is charged as involuntary manslaughter, punishable by one to 10 years in prison or up to 12 months in jail and a fine of up to $2,500.⁴

If the driver’s behavior was extreme enough to show a reckless disregard for human life, prosecutors can charge aggravated involuntary manslaughter instead. That offense carries one to 20 years in prison with a mandatory minimum of one year that cannot be suspended.⁴ The line between the two often comes down to factors like an extremely high BAC, excessive speed, or driving on the wrong side of the road.

Any DUI After a Prior Felony DUI Conviction

Someone who has already been convicted of felony DUI, DUI maiming, or DUI-related involuntary manslaughter faces automatic felony charges on any future DUI, no matter how much time has passed. There is no lookback window here. The new offense is a Class 6 felony carrying a mandatory minimum of one year in prison and a mandatory minimum fine of $1,000.¹

Out-of-State Convictions Count

Virginia does not limit its felony lookback to in-state offenses. Prior convictions under any substantially similar law of another state or jurisdiction count toward the felony threshold.⁵ A driver with two out-of-state DUIs who picks up a third in Virginia is facing a felony, not a first offense. Virginia is a member of the Driver License Compact, so conviction records move between states.

Third Offense of Driving on a DUI-Revoked License

There is a separate felony trigger that does not require a new DUI at all. Driving after your license has been revoked or suspended for a DUI is a Class 1 misdemeanor on the first and second offense. A third conviction for driving on a DUI-revoked license within 10 years becomes a Class 6 felony.⁶ The crime is getting behind the wheel when you have been told you cannot.

Indefinite License Revocation

A felony DUI conviction triggers an indefinite license revocation, not a suspension with an automatic end date. The same revocation applies to anyone with three DUI convictions within 10 years.⁵ The driver is not eligible for a restricted license during the revocation.

Five years after the last conviction, the person can petition the circuit court to restore driving privileges.⁷ Restoration is not automatic. The court has discretion, and a documented record of rehabilitation matters.

When a DUI Stays a Misdemeanor

A first or second DUI with no serious injury and no prior felony DUI is a Class 1 misdemeanor, carrying up to 12 months in jail and a fine of up to $2,500. A second offense within five years carries a mandatory minimum $500 fine and at least one month in jail, with 20 of those days unable to be suspended. A second offense between five and 10 years after the first still requires the $500 minimum fine and one month in jail, with 10 mandatory days.¹ Serious, but not a felony — unless one of the triggers above applies.

1
Virginia Code Commission. Virginia Code 18.2-270 – Penalty for Driving While Intoxicated Subsequent Offense Prior Conviction
2
Virginia Code Commission. Virginia Code 18.2-10 – Punishment for Conviction of Felony
3
Virginia Code Commission. Virginia Code 18.2-51.4 – Maiming of Another Resulting From Driving While Intoxicated
4
Virginia Code Commission. Virginia Code 18.2-36.1 – Certain Conduct Punishable as Involuntary Manslaughter
5
Virginia Code Commission. Virginia Code 18.2-271 – Forfeiture of Driver’s License for Driving While Intoxicated
6
Virginia Code Commission. Virginia Code 18.2-272 – Driving After Forfeiture of License
7
Virginia Code Commission. Virginia Code 46.2-391 – Revocation of License for Multiple Convictions