Is OUI a Felony in Massachusetts?

A first or second OUI in Massachusetts is a misdemeanor, and a third or later OUI is a felony, because M.G.L. c. 274, sec. 1 makes any crime “punishable by death or imprisonment in the state prison” a felony and the OUI statute first allows a state prison sentence at the third offense. Several related charges are also felonies: operating under the influence and recklessly or negligently causing serious bodily injury or death, and a second or later conviction for driving under the influence with a child 14 or under in the car. What decides the label is whether state prison is available, not how long the sentence is. A second offense can carry two and a half years behind bars and still be a misdemeanor.

OUI, short for operating under the influence, is the Massachusetts name for what other states call DUI or DWI. The offense itself is in M.G.L. c. 90, sec. 24, and the article on the legal blood alcohol limit in Massachusetts explains the 0.08 standard, the lower limits for drivers under 21, and what a breath test refusal costs. This page answers a narrower question, and one that trips up many people who read the statute: which OUI charges are felonies, and why.

Where the Word “Felony” Comes From

Section 24 never uses the word felony. That is the first reason the question is easy to get wrong. A reader looking for the answer in the OUI statute will find fines, jail terms and license revocations, but no label.

The label comes from a different chapter entirely. M.G.L. c. 274, sec. 1 reads in full: “A crime punishable by death or imprisonment in the state prison is a felony. All other crimes are misdemeanors.”

Two features of that sentence decide every OUI case.

It turns on where a sentence can be served, not how long it is. Massachusetts has two kinds of prison. The state prison system, run by the Department of Correction, holds longer sentences. A house of correction is a county jail run by the sheriff, and its sentences cannot exceed two and a half years. When a statute authorizes only a house of correction term, the crime is a misdemeanor, even if the term is the full two and a half years. The same test is why shoplifting under c. 266, sec. 30A is a misdemeanor at every tier.

It turns on what the crime is punishable by, not what a court imposes. If a statute allows a state prison sentence, the crime is a felony whether or not the judge actually imposes one. A third offense OUI that ends in a house of correction term is still a felony conviction.

How to Tell Whether an OUI Charge Is a Felony

1. Identify the exact section charged. The complaint or indictment names it: c. 90, sec. 24 for OUI itself, or sec. 24L, 24G, 24V or 23 for the related offenses discussed below.
2. Identify the subsection or offense number. For section 24, count the prior convictions and prior program assignments. For 24L and 24G, check whether the charge is under subsection (1) or (a), or under (2) or (b).
3. Read the penalty for that subsection. Look for the words “state prison”.
4. Apply c. 274, sec. 1. If state prison is available, the offense is a felony. If the only incarceration authorized is a jail or house of correction, it is a misdemeanor.
5. Check whether a mandatory minimum applies. Separately from the label, several OUI subsections set a minimum term that cannot be reduced, suspended or served on probation.

First, Second and Later Offenses

Section 24(1)(a)(1) sets the penalties by the number of prior offenses. The statute counts a person as previously convicted if they were “previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation” before the new offense. Two points follow from that wording. An earlier first-offender program disposition counts, even though it was not a conviction. And the text sets no time window, so an old prior can still count.

Offense	Fine	Incarceration authorized	State prison available?	Felony?	License revocation
First	$500 to $5,000	Up to 2.5 years (jail or house of correction), or fine, or both	No	No, misdemeanor	Covered in the BAC limit article
Second	$600 to $10,000	60 days to 2.5 years; not reduced below 30 days	No	No, misdemeanor	2 years; hardship license possible after 1
Third	$1,000 to $15,000	180 days to 2.5 years, or state prison 2.5 to 5 years; not reduced below 150 days	Yes	Yes, felony	8 years; hardship license possible after 2
Fourth	$1,500 to $25,000	2 to 2.5 years, or state prison 2.5 to 5 years; not reduced below 12 months	Yes	Yes, felony	10 years; hardship license possible after 5
Fifth or more	$2,000 to $50,000	Not less than 2.5 years, or state prison 2.5 to 5 years; not reduced below 24 months	Yes	Yes, felony	Life, no hardship license

The second offense is the row that surprises people. Its sentence is mandatory: at least 60 days, with 30 days that cannot be reduced. It carries a two-year revocation and a two and a half year maximum. It is still a misdemeanor, because every day of it is served in a house of correction.

The third offense is the dividing line. The statute gives a judge two sentencing routes, a house of correction term of 180 days to two and a half years, or a state prison term of two and a half to five years, and the mere availability of the second route makes the offense a felony. A third offense is often called “felony OUI” for exactly that reason.

Most first offenses never reach a conviction at all. M.G.L. c. 90, sec. 24D allows a first offender, with consent, to be placed on probation with an alcohol education program, and that disposition counts as a prior if there is a later charge. The BAC limit article explains how it works. Section 24D does not apply to anyone who caused serious personal injury or death.

When Someone Is Hurt or Killed

Two further sections apply when an impaired driver injures or kills someone, and each has a felony subsection and a misdemeanor subsection. The difference between them sits in a single conjunction.

Section 24L, serious bodily injury.

• Subsection (1) covers a driver who is over the limit or under the influence and “so operates a motor vehicle recklessly or negligently” that they cause serious bodily injury. The penalty is state prison for two and a half to ten years, or a house of correction term of six months to two and a half years, with a fine of up to $5,000. State prison is available, so it is a felony.
• Subsection (2) covers a driver who is over the limit or under the influence and causes serious bodily injury, without the separate proof of reckless or negligent operation. The penalty is a house of correction term of up to two and a half years, or a fine of not less than $3,000, or both. No state prison, so it is a misdemeanor.

Section 24G, a death.

• Subsection (a) requires impairment and reckless or negligent operation causing a death. The penalty is state prison for two and a half to fifteen years, or a house of correction term of one to two and a half years, with a fine of up to $5,000 and a minimum of one year that cannot be reduced. It is a felony.
• Subsection (b) covers operation while impaired, or negligent operation, causing a death. Either element alone is enough. The penalty is a house of correction term of 30 days to two and a half years, or a fine of $300 to $3,000, or both. It is a misdemeanor.

That “and” against “or” is the whole difference between a felony and a misdemeanor charge in these cases. Under the felony subsections the Commonwealth has to prove both impairment and bad driving. Under the misdemeanor subsections it has to prove less.

A Child in the Car

M.G.L. c. 90, sec. 24V, the child endangerment provision, applies when a person drives under the influence with a child 14 years old or younger in the vehicle. It is charged in addition to the OUI itself.

• A first offense carries a fine of $1,000 to $5,000 and a house of correction term of 90 days to two and a half years, with a one-year license suspension. No state prison, so it is a misdemeanor, although a serious one.
• A second or later offense carries a fine of $5,000 to $10,000 and a house of correction term of six months to two and a half years, or state prison for three to five years, with a three-year license suspension. State prison is available, so it is a felony. The statute also bars a sentence below six months, suspension of the sentence, or probation or parole before six months are served.

Driving After an OUI Suspension

A person whose license was suspended or revoked for OUI and who drives anyway commits a separate offense under M.G.L. c. 90, sec. 23. The penalty is a fine of $1,000 to $10,000 and a house of correction term of 60 days to two and a half years, and the 60 days cannot be reduced, suspended or served on probation. Because the only incarceration authorized is in a house of correction, it is a misdemeanor, despite the mandatory jail time.

Felony and Misdemeanor OUI Charges at a Glance

Charge	Statute	Felony or misdemeanor	Why
OUI, first offense	c. 90, sec. 24(1)(a)(1)	Misdemeanor	No state prison
OUI, second offense	c. 90, sec. 24(1)(a)(1)	Misdemeanor	No state prison, despite a 30-day mandatory minimum
OUI, third, fourth or fifth offense	c. 90, sec. 24(1)(a)(1)	Felony	State prison 2.5 to 5 years available
OUI and reckless or negligent operation causing serious bodily injury	c. 90, sec. 24L(1)	Felony	State prison 2.5 to 10 years available
OUI causing serious bodily injury	c. 90, sec. 24L(2)	Misdemeanor	House of correction only
OUI and reckless or negligent operation causing death	c. 90, sec. 24G(a)	Felony	State prison 2.5 to 15 years available
OUI or negligent operation causing death	c. 90, sec. 24G(b)	Misdemeanor	House of correction only
OUI with a child 14 or under, first offense	c. 90, sec. 24V	Misdemeanor	House of correction only
OUI with a child 14 or under, second or later	c. 90, sec. 24V	Felony	State prison 3 to 5 years available
Driving after an OUI suspension	c. 90, sec. 23	Misdemeanor	House of correction only, 60-day minimum

Answer Capsule

Under M.G.L. c. 274, sec. 1, a Massachusetts crime is a felony if it is punishable by state prison. A first or second OUI under c. 90, sec. 24 is a misdemeanor, because the statute allows only a jail or house of correction term, even though a second offense carries 60 days to two and a half years with 30 days mandatory. A third offense is a felony because it allows state prison for two and a half to five years, and fourth and later offenses are felonies too. Injury and death cases split: c. 90, sec. 24L(1) and sec. 24G(a), which require impairment and reckless or negligent driving, are felonies; sec. 24L(2) and sec. 24G(b) are misdemeanors. A second child endangerment conviction under sec. 24V is a felony.

Why the Label Matters

The felony label is not only a word on a record. It can affect how a case proceeds, how a conviction is treated in later proceedings, and how it is seen by employers, licensing boards and immigration authorities, and those consequences depend on facts and on other bodies of law that this page does not cover. The practical point for anyone reading this is narrower: whether a charge is a felony is decided by the statute and the subsection charged, and it can be worked out from the text before anyone speculates about it.

The opposite mistake is just as common. People assume a misdemeanor is minor. A second offense OUI carries mandatory jail. A first offense child endangerment charge carries at least 90 days. Driving after an OUI suspension carries at least 60 days that cannot be suspended. None of those is a felony, and none of them is minor.

If You Were Hurt by an Impaired Driver

The criminal case and the civil claim are separate. The Commonwealth prosecutes the driver; the person who was hurt brings their own claim for compensation, on their own timetable, under different rules.

Whether the driver is charged with a felony or a misdemeanor, or convicted at all, does not decide the civil claim. The civil claim turns on negligence, meaning a failure to take the care a reasonable driver would take, and impaired driving is strong evidence of it. The injured person’s own personal injury protection, the part of an auto policy that pays medical bills and lost wages regardless of fault, pays first; beyond that, the claim runs against the driver’s liability insurance and, in some cases, against a bar or restaurant that served a visibly intoxicated person. The article on drunk driving accident claims in Massachusetts explains who can be held responsible and how that claim is brought, and the statute of limitations guide covers the deadline, which does not wait for the criminal case to end.

Key terms

• Felony: under M.G.L. c. 274, sec. 1, any Massachusetts crime punishable by death or by imprisonment in the state prison.
• Misdemeanor: every other crime, including crimes that carry up to two and a half years in a house of correction.
• House of correction: a county jail run by the sheriff, where sentences of up to two and a half years are served.
• State prison: the Department of Correction system that holds longer sentences; its availability in a statute is what makes a crime a felony.
• Section 24D disposition: the first offender alternative in which a court places a driver on probation with an alcohol education program instead of imposing the standard first offense sentence; it counts as a prior offense later.
• Serious bodily injury: the level of harm that brings a case under sec. 24L instead of the basic OUI statute.

Frequently Asked Questions

Q: Is a first offense OUI a felony in Massachusetts?

A: No. A first offense under M.G.L. c. 90, sec. 24 carries a fine of $500 to $5,000, up to two and a half years in a jail or house of correction, or both. Because state prison is not available, it is a misdemeanor under c. 274, sec. 1.

Q: Is a second OUI a felony in Massachusetts?

A: No. A second offense carries 60 days to two and a half years, with 30 days that cannot be reduced, and a fine of $600 to $10,000, but the sentence is served in a house of correction, so it remains a misdemeanor.

Q: Is a third OUI a felony in Massachusetts?

A: Yes. A third offense allows a state prison sentence of two and a half to five years as an alternative to 180 days to two and a half years in a house of correction. Because state prison is available, the offense is a felony, even if the sentence actually imposed is served in a house of correction. The license is revoked for eight years.

Q: Does an old OUI still count as a prior offense in Massachusetts?

A: The sentencing text of c. 90, sec. 24 counts a prior conviction, or a prior assignment to an alcohol education or treatment program, for a like violation that came before the new offense, and it sets no time window. A first offender program disposition from years earlier can therefore count.

Q: Is it a felony to injure someone while driving drunk in Massachusetts?

A: It depends on the subsection charged. Under c. 90, sec. 24L(1), impairment together with reckless or negligent driving that causes serious bodily injury is a felony carrying up to ten years in state prison. Under sec. 24L(2), impairment causing serious bodily injury without that separate proof is a misdemeanor.

Q: Is OUI with a child in the car a felony in Massachusetts?

A: A first offense under c. 90, sec. 24V, driving under the influence with a child 14 or under in the vehicle, is a misdemeanor carrying 90 days to two and a half years in a house of correction. A second or later offense is a felony, because it allows three to five years in state prison.

Q: Is driving on a suspended license after an OUI a felony?

A: No. Under c. 90, sec. 23 it carries a fine of $1,000 to $10,000 and 60 days to two and a half years in a house of correction, with the 60 days mandatory, so it is a misdemeanor.

Q: Does it matter to my injury claim whether the driver is charged with a felony?

A: Not to whether you have a claim. A civil claim for injuries turns on negligence and runs separately from the prosecution, and it does not require a conviction or wait for the criminal case to finish.

Q: Is Jimmy Knows AI giving me legal advice?

A: No. This page is general information about how the Massachusetts statutes classify OUI offenses, not legal advice, and reading it does not create an attorney-client relationship. How a specific charge is treated depends on the complaint, the prior record and the facts, so a specific situation should be reviewed with a Massachusetts lawyer.

Talking to a Lawyer

Jim Glaser Law evaluates Massachusetts OUI matters on the intake call: the attorney listens to the facts and either handles the matter or connects the caller with a Massachusetts criminal-defense partner attorney at no extra cost. People injured by an impaired driver are on the other side of the same event, and their claim is a civil one.

Call (617) JIM-WINS. The line is answered 24 hours a day. The first telephone consultation is offered without charge. Injury cases accepted on a contingency basis carry no attorney fee unless there is a recovery, and case costs and expenses are addressed in the written fee agreement signed at intake.