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Misdemeanor vs. Gross Misdemeanor vs. Felony DUI Charges

Is a DUI a Felony?

This is one of the most frequently asked questions about drunk driving charges. While the answer to that question will depend on many factors, including state law, there are certain aspects about a case that might suggest the driver will face a felony DUI charge. Does the driver have prior convictions? Was someone killed or seriously injured in the accident?

Minnesota has a blood alcohol content (“BAC”) limit of 0.08 percent; however, there are different penalties for a DUI. The circumstances surrounding your DUI arrest will influence the penalty. Minnesota DUI statutes and case law defines aggravating factors as any one or more of the following:

• A blood alcohol content of .20 percent or greater
• A child under the age of 16 present in the motor vehicle at the time of the offense
• A prior conviction for impaired driving or an alcohol related driver’s license revocation (i.e. implied consent revocations) or suspension within the past 10 years of the current DUI offense.

Felony DUI charges and penalties can be severe and often have a statutory minimum number of days that you will be required to serve in custody, whether in jail, prison, or electronic home monitoring (EHM), if you are convicted.

You can get a free case evaluation right now with one of our experienced DUI attorneys. They can explain in detail whether you might be facing a felony DUI, gross misdemeanor, or a misdemeanor if you are convicted.

Sentencing for Felony and Misdemeanor DUI

Generally speaking, the major difference between a misdemeanor and a felony has to do with the penalties involved. The criminal penalties for a DUI or DWI offense in Minnesota are determined by the number of aggravating factors existing at the time the offense is committed. The fines and days listed in jail or prison are the maximum penalties.

Number of Aggravating Factors:
• None: 4th Degree DWI, misdemeanor and up to $1,000 fine and/or 90 days jail
• One: 3rd Degree DWI, gross misdemeanor and up to $3,000 fine and/or 1 year jail
• Two: 2nd Degree DWI, gross misdemeanor and up to $3,000 fine and/or 1 year jail
• Three:1st Degree DWI, felony (fourth offense only) and up to seven years incarceration and/or $14,000 fine

Further, a felony conviction can carry additional consequences. For example, many businesses will simply not hire convicted felons, which includes individuals convicted of a felony DUI.

One drunk driving charge can be very different from another. Call one of our knowledgeable criminal defense attorneys anytime (24/7) at 612-217-4357 and they will explain the penalties you might be facing.

Frequently asked questions

How will I know if I have to post bail?

Whether or not a Defendant will be required to post bail to be released from custody is determined at the Defendant’s first appearance before a judge, the arraignment. A judge is not required to set bail, and usually makes the determination of whether bail should be required in a particular case based on a variety of factors, including the Defendant’s criminal history, the severity of the offense, and the likelihood of conviction.

How do I post Bail?

To post bail, the Defendant must bring the bail amount in cash to the cashier’s office. If a bondsperson is posting a bail bond, he or she must swear under oath that the bondsperson has spoken to the Defendant and that the Defendant has promised to appear at the next court date.

What are my Miranda rights?

The case of Miranda v. Arizona provides that before a law enforcement officer can interrogate you while you’re in custody, the officer must read you very specific warnings:
• 1. you have a right to remain silent,
• 2. anything you say can be used against you in court,
• 3. you have the right to the presence of an attorney, and
• 4. if you cannot afford an attorney, one will be appointed for you at no expense to you.
These warning are to protect your 5th Amendment right against self-incrimination.

What are the Conditions of Release?

To address public safety concerns and in order to reduce the likelihood the accused reoffending, courts often place restrictions or conditions on the accused’s release. These conditions may include “stay away” orders, drug testing, a mental health evaluation, travel limitations, or surrender of firearms.

What is the Arraignment Process?

In the Arraignment Hearing, also called the Initial Appearance, the Judge or an attorney reviews the Complaint with the Defendant and explains his or her rights to representation, right to a speedy trial, and a jury trial where jail time could be imposed. The judge will set a future date for the Defendant to attempt to return to court or settle the case. If no bail or conditions of release have already been set, the judge will make the determination if and what conditions and bail are required for the Defendant’s release.

How Does a Prosecutor Decide Whether or Not to File Charges?

Prosecutors have limited resources and cannot pursue every case they are presented. Thus prosecutors tend to only file charges in cases where they believe they can prove beyond a reasonable doubt that the Defendant is guilty of the crime(s) alleged.

What Happens if the Police Officer Does Not Read Me My Rights?

Many people in Minnesota believe that if a police officer does not read you your rights, your case will get dismissed. Unfortunately for people charged with a crime, this is not true. “Your Rights”, also known as Miranda Rights, only apply if the officer asks you questions while you are in custody. This is often referred to as custodial interrogation. This means if you are in the officer’s or the police department’s custody, and not free to leave, and an officer asks you questions without first reading you your Miranda Rights, your statements cannot be used against you at trial. However, if you are i) not in custody or ii) you are arrested and you are not read your Miranda Rights, that does not mean you the charges against you will be dismissed, it only applies to your statements being admissible at trial, i.e. things you tell a law enforcement officer that is against your interest. This is the only example of where Miranda Rights apply. If they are not read to you, it does not mean your case is dismissed, however, it could mean that your statements cannot be used against you at your trial, but the big misconception is “if the officer does not read me my rights, my case is dismissed.” This belief is not true.

The Pros and Cons of a Plea Bargain?

The vast majority of criminal convictions are the result of negotiated pleas. Only a very few criminal cases go to trial. What are the advantages of plea bargaining for a Defendant? For a defendant charged with a crime, plea bargaining allows the opportunity for a lesser or reduced sentence and/or penalty, along with the possibility of being convicted of a less severe offense. If the plea allows for a conviction of a less severe crime, then the defendant will have fewer and/or less serious convictions for offenses listed on his or her criminal record. Obtaining a plea bargain also provides the Defendant with certainty in the outcome of the case as opposed to the wildly divergent possible outcomes should a case go to trial. If the defendant is represented by one of our firm’s experienced criminal defense attorneys, he or she may also save lots of money by avoiding the costs of a long drawn out trial by agreeing to a plea bargain. Although a plea bargain is the most common resolution to criminal cases, sometimes the Defendant is better off going to trial. The burden placed on the prosecution to prove its case beyond a reasonable doubt is a high threshold and if the prosecution fails to meet that burden, the Defendant must be found “not guilty.” After a Defendant has been charged, a verdict of “not guilty” is often the only way he or she can be free of any punishment imposed by the state. Although most criminal matters handled by our experienced criminal attorneys end in a plea bargain favorable to our clients, we are also experienced in the courtroom setting and are not hesitant to bring a Defendant’s case before a jury.

What is the Difference Between Felony and Misdemeanor Charges?

The main difference between a felony and a misdemeanor charge is the penalties which may be imposed. In Minnesota, misdemeanors are crimes punishable for a year or less in custody, and felonies are crimes for which an individual can be punished for more than a year in prison or county jail. But the incarceration resulting from a felony is not the only consequence of the conviction. Even after the felon pays his debt to society, he or she is still unable to obtain a firearm, certain licenses, and will often have trouble finding employment.

How do I know if I need a Criminal Defense Attorney?

Any person accused of a criminal charge, no matter the level of offense, will benefit from speaking with an experienced Minnesota criminal defense attorney. Even if you do not end up hiring the attorney to represent you in court, a free consultation will help a defendant become informed about the charges filed, the process, defenses available, possible plea bargains that may be offered, and the consequences in the event of conviction. When a defendant is charged with more serious charges (i.e. Gross Misdemeanor and Felony), an experienced criminal defense attorney at our firm is imperative to assist with negotiating a plea bargain, or preparing your case for trial. A criminal defense lawyer should also be able to identify important pretrial issues, such as objecting to harmful evidence being introduced against you, and to bring the appropriate motions which could significantly improve a defendant's case, or even result in charges being dismissed.

How much does a criminal defense attorney cost?

The cost of an experienced Minnesota criminal defense attorney can vary substantially, depending upon multiple factors, such as: the jurisdiction (i.e. Hennepin and Ramsey County are different from Blue Earth and Stearns County, and both are different from Federal Court), and the type of criminal charges which have been filed (or expected to be filed) against you. A criminal defense attorney will usually require a larger retainer fee for a complex case than for a simple case. The amount of a retainer will also usually increase in relation to the severity of the charge(s) filed against you. In some cases, a lesser charge may require a larger retainer, when the defense attorney expects to file lots of motions and challenge evidence the prosecution plans to use against you, or when expert witnesses will be needed. After your free case evaluation with one of the experienced attorneys at Tarshish Cody, PLC, the attorney can a customized estimate as to the appropriate amount to charge for your specific case. Our experienced Minnesota criminal defense attorneys are available to discuss your case with you right now and you can call them anytime (24/7) at 612-217-4357.

What are the advantages of having a criminal defense attorney?

It can be hard to decide whether to hire an attorney for your case. Here are a few of the benefits of hiring one of our experienced Minnesota criminal defense attorneys, in the event you are facing criminal charges.
• Pleading Guilty Without an Attorney Is Often More Costly
There are many long term and short term consequences to pleading guilty to any crime in Minnesota. One of our experienced Minnesota Criminal Defense Attorneys can inform you of all the consequences and costs that may result from the criminal charges you are facing and assist you with making an informed decision about your case. Factoring in all the consequences and penalties you are facing from the criminal charges, the expense of hiring one of our attorneys is often less expensive than pleading guilty guilty without a fight.
• Time is Important, Delaying Can Hurt Your Case
Preparing an aggressive and successful defense for any criminal case requires a time commitment from your attorney. The earlier in the process you retain one of our firm’s criminal defense attorneys, the quicker he or she can begin to request discovery from the prosecutor, investigate and gather facts, and prepare an aggressive defense for your case.
• Going Through The Process Alone Is Hard
When you are charged with a crime, you are alone. Law enforcement officers, prosecutors, and judges are not there to help you or your case. Your lawyer is the only person with any influence in the courtroom that is on your side, throughout the whole process. A strong and powerful relationship between you and your attorney is built on communication and trust. You will need to trust your lawyer with important information and facts relating to your case, and also be able to rely on the advice given to you by your attorney.

Adam Goldfine, Esq
Criminal Defense

Felony, Gross Misdemeanor, Misdemeanor, DUI, DWI, Theft, Traffic Tickets, White Collar, Drug Crimes (Possession, Sale, Distribution) and more criminal offenses.

Adam Goldfine aggressively fights for his clients' rights. He knows the justice system inside and out. His communication ability is a powerful tool when dealing with opposing prosecutors, judges, and his clients. He represents clients of all walks of life, and does so both ethically and zealously.


William Mitchell College of Law, St. Paul, Minnesota, Juris Doctor of Law University of Kansas – Lawerence, Kansas, Bachelor of Arts


Minnesota State Bar Association

Proven results

Charge(s): 1st Degree DWI; Facing up to 7 years in prison and $14,000 Fine.
Result: Sentenced to 90 days in jail, complete treatment and probation, and No Fine.
Dakota County (Lakeville) / 3 Prior DUIs / Blood Alcohol Level: 0.18
Charge(s): Misdemeanor Theft
Result: Continuance for Dismissal
Dakota County (Apple Valley) / no prior / value taken: $45
Charge(s): 3rd Degree Burglary; Computer Theft; Terroristic Threats
Result: Computer Theft; Terroristic Threats
Blue Earth County
Charge(s): 5th Degree Possession
Result: Stay of Imposition
McLeod County / no prior / Methamphetamine

What our clients say about us

Even good people sometimes make mistakes and have run-ins with the law. Scott Cody and Adam Goldfine didn't treat me like a criminal, they treated me like a person and they had my back. If I ever have trouble with the law again, they are the first people I'm calling.

Brad S.*

I knew I didn't want to go to jail with two young children at home that needed me. Mr. Goldfine was compassionate and he explained my situation to the prosecutor. In the end, it all worked out and I am so thankful (and so are my kids).

Jenny T.*

You want an aggressive and experienced defense attorney for your case? It's going to cost some money (obviously), but Adam was very affordable and worked with my situation.


Adam Goldfine might be the first attorney I've hired that actually listened to my side of the story and let me make decisions for my case, unlike past attorneys that were thinking it's their way or the highway. I appreciate that.

Desiree B*

*Name was changed to protect the client's identity.

Gross Misdemeanor: Free Attorney Consultation

Have Your Case Analyzed by an Experienced Criminal Defense Lawyer in Minnesota

No-Obligation Consultation

Or Call Us Now!