How much jail time will I have to serve if convicted?
No one can tell you for sure. Many different factors play in to how much time the judge will give you. But you can estimate by working through the following steps:
STEP 1: See if mandatory minimums apply. (Mandatory minimum time means that the judge has to give you AT LEAST that much time if you are found guilty as charged. The judge cannot suspend mandatory time. Also, there is no “good time” credit for mandatory time – you must serve every day.)
A first DUI with no others in the last ten years with a blood alcohol concentration:
- at 0.14, or lower – none
- between 0.15 to 0.20 – 5 days
- at 0.21 or higher – 10 days
For two DWIs within five to ten years from arrest date to arrest date with a blood alcohol concentration:
- at 0.14, or lower – 10 days
- between 0.15 to 0.20 – 20 days
- at 0.21 or higher – 30 days
For two DWIs within less than five years from arrest date to arrest date with a blood alcohol concentration:
- at 0.14, or lower – 20 days
- between 0.15 to 0.20 – 30 days
- at 0.21 or higher – 40 days
For three DUIs within five to ten years from arrest date of the first DUI to the arrest date of the third DUI: 3 months
For three DUIs within less than five years from arrest date of the first DUI to the arrest date of the third DUI: 6 months
For four DUIs within ten years from arrest date of the first DUI to the arrest date of the fourth DUI: 1 year
Any DUI after ever receiving a felony DUI: 1 year
STEP 2: Add in other defined mandatory time.
ADD 5 extra mandatory days for each child, 17 or under, that you had in the vehicle with you when arrested for DWI.
STEP 3: Are there any “red flags” or aggravating facts that can add extra jail time? Judges commonly give extra jail time if any of these are present:
Accidents. Were people injured? Will they be in court to testify against you? Were any children? Was the accident unusually bad? (cars totaled, head-on) Has your insurance paid off any claims or are the victims left with the bills?
Driving behavior. Were you going excessively fast? Driving on the wrong side of the road?
Belligerence. Commonwealth Attorneys (prosecutors) commonly feel that they represent your arresting officer. If you mistreated the officer, he will say that you were “belligerent.” It’s sometimes “cop code” for “do not make a deal with this person.” Also, some judges will not grant weekend jail or even a restricted license if you mistreat an officer.
Multiple DUIs within a year. Two quick DUIs can add a lot of time on to your sentence. The longer you have between DWIs the less the chance for additional jail time.
History of drunk in public and drug use. The previous drug and alcohol use will concern the prosecutor and judge that there is a more serious problem.
Other illegal behavior during the DUI incident even if it was not charged. Leaving the scene of an accident, carrying a legally concealed handgun while intoxicated, reckless driving, etc.
Refusal charge. Some judges will require a weekend or two in jail in exchange for dismissing a Refusal charge.
Where you are; who you are before. The jurisdiction, judge and prosecutor can all make a big difference.
STEP 4: Subtract some non-mandatory days for “mitigating” or good factors.
Alcohol or drug treatment after an arrest. This is especially important for 2nd and subsequent DUIs. Sign up for VASAP (http://www.vasap.state.va.us/), go to A.A. (http://www.aa.org), or see if your insurance will pay for private counseling.
Little or no criminal history.
Good driving record. In Virginia, you can have up to a +5 rating on your driving report. Order yours at: https://www.dmv.virginia.gov/dmvnet/pin_maint/pin_logon.aspx?SESS=NEW
Military or community involvement.
Compelling life story.
STEP 5: What county or city are you charged in?
There are two jurisdictions in Virginia that commonly give jail time for ALL DWIs: Loudon County and Northampton. (This is accurate at the time of writing but things change! Talk to your attorney or call us if you are charged in one of these counties.)
STEP 6: Don’t count on these helping:
Driver improvement class. Driving while intoxicated is not usually perceived to be a problem with your driving as much as a problem with your drinking. Go to A.A. instead and keep a log of when you went.