Jail Time as a DUI Penalty

Authored by Wendy Witt, Esq.

I've Been Arrested for DUI, Will I Go To Jail?

Being arrested for DUI can be a total shock. One of the first things that comes to most folks' minds is, "Will I go to jail for this DUI?"

Jail time is a potential DUI penalty in all 50 states as well as the District of Columbia. Whether or not you will actually be sentenced to jail time, usually depends on three factors.

(Those same factors determine the length of any jail time as well.)

  1. The law of the state where you were arrested.
  2. Whether you have been convicted for DUI previously.
  3. Whether there are mitigating or aggravating factors.

Length of Jail Time Varies from State to State

Some states have mandatory jail time for a first DUI conviction and others do not - in addition, the length of potential jail time varies greatly, depending on state law.

For example:

  • In Florida, there is no mandatory minimum jail time for a first, second, or third DUI defense. However, there is a maximum of 6 months, 9 months, and 5 years, respectively.
  • In Massachusetts, a first offense is punishable by up to 2.5 years in jail - a second offense by 30 days to 2.5 years in jail - and - a third offense by 150 days to 5 years in jail.
  • In Colorado, the judge can hand down up to 90 days for a first DUI conviction - 90 days to 1 year for a second conviction - and - 70 days to 1 year for a third conviction.

Your DUI attorney will apply the relevant state law to your individual situation - and explain potential jail time - as well as other possible punishments.

DUI Jail Time is Based on Prior Convictions

As illustrated in our examples above, any previous DUI conviction will increase jail time. Many states have mandatory jail time for subsequent convictions.

If you are found guilty - your DUI attorney will seek to get you a sentence on the low end of the scale.

DUI Jail Time is Based on Mitigating and Aggravating Factors

State laws typically provide a wide range of DUI punishments, including jail time. Then the judge has discretion in handing down the specific sentence.

  • If there are mitigating circumstances, your jail time may be on the lower end of the punishment range.
  • If there are aggravating circumstances, your jail time will likely be on the upper end of the punishment range.

Here are some examples so you know what we're talking about when we mention "mitigating" and "aggravating" circumstances.

  • Mitigating factors would be:
    • Blood alcohol content (BAC) at or just over .08%.
    • No injuries and no deaths.
    • No property damage.
    • No children in your car.
    • First DUI offense.
  • Aggravating factors would be:
    • BAC way over the legal limit.
    • Injuries and death.
    • Property damage.
    • An accident.
    • Minors in your car.
    • Previous DUI convictions.

Your DUI lawyer will strive to emphasize mitigating factors and minimize aggravating factors.

Related topics

More articles about dui

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  • DUI Glossary

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  • Defenses to Drunk Driving

    Carefully review our in-depth guide to your DUI defense - we break down the most successful defenses.

  • What You Tell Your DUI Defense Lawyer

    Disclose absolutely everything to your attorney and if there is any doubt, disclose that too - here’s why.

  • Why You Must Hire a DUI Attorney

    Just one DUI conviction can cost you tens of thousands of dollars.

  • Penalties for a DUI Conviction

    Penalties typically depend on three factors - where you live, your criminal history and other mitigating or aggravating circumstances. Many offenders face more than just fines if convicted.

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