Driving under the influence of drugs or alcohol is illegal in every state. The penalties for DUI can increase if a person gets an additional DUI, so it's important to know whether a DUI conviction counts as a first or repeat offense.
What counts as a first DUI differs by state. Obviously, if it's the first time you've ever been convicted of a driving offense involving alcohol or drugs, your current offense will count as a first DUI.
But, even if you have a prior DUI conviction, your new conviction might only count as a first DUI if the prior DUI is:
In some states, such as California, DUI convictions "wash out" after a certain number of years. For instance, in a state with a "lookback" period of ten years, a 12-year-old DUI conviction wouldn't count against you as a prior offense. Assuming you haven't had another conviction in those 12 years, the court would treat your current offense as a first DUI.
A prior DUI conviction from another state might not count when totaling the number of offenses. States like Virginia won't count a DUI conviction from another state as a prior unless the other state's DUI laws are substantially similar. (Va. Code § 18.2-270 (2023).)
Again, the upshot is that someone who actually has been convicted of DUI is considered a first-time offender for purposes of a new case.
All states have zero-tolerance laws. These laws make it illegal for drivers who are younger than 21 to have even a small amount of alcohol in their system.
For example, a state might have a law that makes it illegal to drive with a blood alcohol concentration (BAC) of .08% or more while also having a law making it illegal for a driver who is younger than 21 to have a BAC of .02% or more.
Whether an underage DUI conviction counts as a prior DUI conviction when someone faces a subsequent case depends on state law. In some states, the person facing charges is considered a first offender.
DUIs are serious charges, and many prosecutor offices are unwilling to drop a DUI charge unless the evidence is weak. And whether evidence is weak really depends on the facts of the case at hand. Perhaps the driver doesn't show many signs of impairment and has a low BAC, or maybe the testing device malfunctioned. But in many cases the evidence against the driver is relatively solid.
Instances of spotty evidence aside, some states have DUI first-offender and diversion programs that allow a court to dismiss a DUI charge after a defendant has completed specific requirements, such as probation or alcohol treatment. Completing those requirements can be a way to get the DUI charges dropped.
If a prosecutor or judge refuses to drop or reduce charges, or to allow diversion, a driver can fight a DUI in court and hope for dismissal through a not guilty verdict. But most cases do result in conviction, and going all the way to trial can be a risk. Again, it comes down to the specifics of your case.
The consequences of a DUI conviction are serious. Common penalties for a first-offense DUI often include:
Even if you aren't ultimately convicted of a DUI in criminal court, the Department of Motor Vehicles might still take away your license if there's evidence that you drove with a BAC of .08% or greater.
Also, there are lots of costs for a first-offense DUI, like attorney fees and insurance rate increases that can significantly raise the amount you'll actually end up paying.
Because of these serious penalties, it's normally a good idea to have a lawyer for a DUI case.