Can I Get Jail Time for a Misdemeanor DUI Conviction?

The likelihood of ending up in jail for driving under the influence.

By , Attorney · University of San Francisco School of Law

For most DUI and DWI convictions—even a first misdemeanor drunk driving offense—jail time is a possibility. But the likelihood of receiving a jail sentence for driving under the influence generally depends on the circumstances of your case.

Here are some of the main factors that influence the probability of serving time in jail for a DUI offense.

How Misdemeanor DUIs Differ From Felony DUIs

Most DUI convictions are misdemeanors. With misdemeanors, the maximum jail time is usually one year. Depending on the circumstances, a misdemeanor DUI might or might not carry a minimum jail sentence.

Felony DUI convictions, on the other hand, generally carry at least one year in jail or prison. So, if you're convicted of a felony DUI, you can typically expect to serve at least some time behind bars.

In many states, a third or subsequent DUI is a felony. Also, in most states, certain aggravating factors like injuries and deaths can elevate any DUI to a felony.

Factors Making Jail Time More Likely for a Misdemeanor DUI

The DUI laws of every state are different and generally provide the minimum (if there is one) and maximum amount of time in jail for different types of DUI convictions. Below, we discuss some of the factors that can make jail time more probable for a misdemeanor DUI.

Prior DUI Convictions

Of all the factors that impact on DUI sentencing, the number of prior convictions is probably the most important. All states structure DUI penalties around how many prior DUI convictions the driver has. What counts as a second or subsequent DUI depends on state law. In some states, prior DUI convictions count only for a certain number of years. In other states, prior DUIs stay on your record and count as priors forever.

As you could imagine, the penalties you can expect for a first DUI are less severe than those for a second offense, the penalties you can expect for a second DUI are less severe than those for a third offense, and so on.

Putting all other factors aside, you generally won't serve much, if any, jail time for a first DUI conviction. For first DUI offenders, there are often programs (like DUI court) that can minimize the consequences of a conviction. With a second DUI conviction, jail time becomes more likely but can still be avoided in many cases.

However, when a driver is convicted of a third DUI, there's a high probability that a conviction will result in the driver spending some time behind bars. For example, in California and Tennessee, a third DUI conviction carries mandatory jail time of at least 120 days. And in Montana and Kentucky, anyone convicted of a third DUI is looking at a minimum of 30 days in jail.

DUIs Involving a High Blood Alcohol Concentration

Blood alcohol concentration (BAC) is another factor that can have an impact on whether a driver spends time in jail for a DUI conviction. For instance, for a second DUI in Illinois, there's mandatory jail time only if the driver's BAC was at least .16%. And Pennsylvania law imposes mandatory jail time for first DUIs only if the driver's BAC was .10% or more.

But even in states that don't explicitly provide more severe penalties for high blood alcohol concentrations, BAC is a factor that judges are likely to consider in deciding how to sentence a DUI offender. Also, drivers with high BAC might be less likely to receive a favorable plea offer from the prosecution.

DUIs Involving Accidents, Injuries, or Deaths

Judges and prosecutors aren't likely to be lenient to DUI offenders who caused an accident while driving under the influence—especially if someone was injured or killed. In fact, the laws of many states require substantial jail time for DUI offenses that resulted in serious injuries or deaths.

Illinois DUI offenders who cause great bodily harm, permanent disability, or disfigurement to another person can be convicted of a class 4 felony and face up to 12 years in prison. Similarly, in Vermont, DUIs involving injuries carry up to 15 years in prison.

Generally, causing the death of another person while operating a vehicle under the influence can result in DUI-enhancement penalties or vehicular homicide or manslaughter charges. In either scenario, the convicted driver is looking at quite a bit of time behind bars.

Avoiding Jail Time for a Misdemeanor DUI Conviction

Many states have programs and sentencing alternatives that allow DUI offenders to avoid having to serve time in jail. The details and availability of these programs differ by state. However, most of these programs fall into one of the categories discussed below.

First-Offender Programs

Lots of states have DUI first-offender programs. Generally, first-offender programs allow participants to avoid jail time (and maybe some of the other DUI penalties) but require participation in some sort of education or treatment program.

DUI- or Drug-Court Programs

DUI- and drug-court programs are typically geared toward repeat offenders. These programs normally involve fairly extensive treatment and sobriety monitoring requirements aimed at addressing underlying substance abuse issues. But successful participants typically can avoid some or all of the normal jail time for the conviction.

House Arrest

Some states allow judges to order house arrest instead of regular jail time. With house arrest, the offender might have to wear an electronic bracelet that monitors their location.

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