An “aggravating factor” is a circumstance that can increase the severity of a criminal charge. With regards to a DWI charge (often called driving under the influence, or DUI), the presence of aggravating factors can be used to enhance a DWI charge from a misdemeanor to a gross misdemeanor, and, in some cases, to a felony.

Aggravating factors for a DWI are:

  1. A prior impaired driving conviction, or a loss of license (suspension, revocation, or cancellation) related to an impaired driving offense, within ten years (each qualified prior impaired driving incident within ten years is counted as a separate aggravating factor);
  2. An alcohol concentration of .16 or more as measured within two hours of driving; or
  3. A child under the age of sixteen in the vehicle if the child is more than thirty-six months younger than you.

Additionally, although a refusal is not technically an aggravating factor, if you refuse to submit to a chemical test of your breath when police have probable cause to believe you have committed a DWI (and they have arrested you, you have crashed, you are driving a commercial vehicle, or you have failed or refused a preliminary breath test (often referred to as a PBT)) it has a similar effect as an aggravating factor. This also applies to refusals to submit to a test of your urine or blood when the police have a warrant.