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Second DUI - will I go to jail?

One of the biggest concerns for many drivers who have been arrested for drunk driving is whether or not they will have to go to jail. In some states drivers can avoid jail time for a first time drunk driving charge; in other states the driver may have to go to fail for several days or longer. Many states allow probation or community service instead of jail. Laws vary by state and it is important to talk to a DUI lawyer if you have questions about the charges your are facing after a drunk driving arrest. So will you be going to jail for a second DUI conviction? It will depend on several factors.

1.    How long ago was your first drunk driving arrest?

  One of the main considerations after a second drunk driving arrest is how long ago was your first DUI conviction. States have various “look back” laws which determine whether or not this will be considered your first, second, or third DUI. For instance, in Oregon, Missouri, Mississippi, Montana, Louisiana, Kentucky, Illinois, Indiana, Idaho, Hawaii, Delaware, Colorado, and Alabama if you have been arrested for drunk driving within the last five years and you are arrested a second time, your second DUI arrest will be treated as your second drunk driving charge. But what if you had been arrested after eight years? In these states your second DUI arrest would be considered your first drunk driving charge. In some states a driver will not be so fortunate. States such as Vermont, New Mexico, Michigan, Massachusetts, and Kansas have life-time look back laws and a second DUI arrest will always be a second DUI conviction, regardless of whether the first drunk driving charge was one, two, ten or twenty years ago.

 2.    Were there aggravating factors in your drunk driving arrest?

  Some state laws may not typically result in jail time but may allow the courts to impose jail if the driver faces an aggravated DUI charge. There are many different factors which may be allow a driver to be charged with an aggravated drunk driving charge including:
  • High Blood Alcohol Concentration
What a state considers “high” can vary. Some states say that two or more times the legal limit is extremely high. Other states, such as Minnesota have determined that a blood alcohol concentration above .20% can be an aggravating factor.
  • Speeding
  • Minors Present at the time of the drunk driving arrest
The age of the child may differ by state. For instance, North Carolina considers anyone under the age of 16 to be a minor. In Kentucky a minor is considered anyone under the age of 12.
  • Driving on a Suspended License
  • Habitual DUI Offenders
The definition of habitual offender can vary by state but generally is defined as someone who has multiple DUI convictions and seems to have a “disregard for the law.” So will you face jail time for your second DUI? From the discussion above you can see it will depend on whether this drunk driving charge is considered your first or second DUI, whether your DUI arrest includes aggravating factors and the state in which you live.
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