Will I Have to Serve Jail Time for My DUI/DWI?

Factors that can come into play in determining whether you'll go to jail for a drunk driving conviction.

By , Attorney George Mason University Law School
Updated 11/19/2025
In many states, you can avoid jail time for a standard first DUI. But if you have prior DUI convictions or the current offense involves certain aggravating factors, the likelihood of spending at least some time in jail goes up.

Jail Time for a DUI Conviction

The amount of time, if any, a person will spend in jail for a DUI conviction depends on the number of prior DUI convictions, state law, and the circumstances of the current offense.

First-Offense DUIs and Jail

Jail time technically is a possibility for a first DUI in most states. In reality, few first DUIs will result in active jail time (other than the hours you spend in jail immediately after your arrest). Whether a DUI conviction will lead to jail depends on several circumstances. In many states—including Florida and Pennsylvania—jail time isn't mandatory (though it is possible) for a standard first DUI conviction where no one was injured or killed. (Fla. Stat. § 316.193; 75 Pa. Cons. Stat. § 3804 (2025).)

Even in states where jail time is mandatory for a first DUI conviction, the offender can sometimes avoid having to actually serve the time in jail by doing house arrest, community service, or some other alternative sentencing option.

Jail Time for Repeat DUI Offenders

Many states require one or more days in jail for a second or subsequent DUI offense. For instance, New Hampshire doesn't mandate jail time for a first DUI but requires at least 17 days in jail for a second DUI conviction within 10 years (60 days if the second offense is within 2 years of a first offense). A person who completes court-ordered substance use disorder evaluation and treatment will have 12 of the 17 days in jail suspended (30 days if it's a second offense within 2 years). (N.H. Rev. Stat. §§ 265-A:18, 651-2 (2025).)

And even in states where jail time isn't required by law for repeat offenders, judges almost always have the option, which they often exercise, of sentencing a motorist convicted of a second or subsequent DUI to serve time in jail.

The bottom line is that the likelihood of spending time in jail goes up substantially when you have prior DUI convictions.

DUI Aggravating Factors that Can Lead to Jail Time

Apart from prior convictions, lots of other factors can increase the likelihood of spending time behind bars for a DUI conviction. These factors might include accidents (especially when they involve injuries, death, or substantial property damage), a high blood alcohol concentration (BAC), and having minors in your vehicle at the time of a DUI offense.

For instance, in Virginia, a typical first DUI doesn't carry mandatory jail. However, a first offense with a BAC of .15 to .20 carries 5 mandatory days in jail. And a second offense with a BAC above .20 carries 10 mandatory days in jail. (Va. Code § 18.2-270 (2025).

Getting Help From a DUI Attorney

Whatever the circumstances of your case, it's a good idea to talk to an experienced DUI attorney as soon as possible. A qualified DUI lawyer can tell you how the law applies to your situation and help you decide on the best course of action.

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