Can I avoid jail time for my DUI?
Can I avoid jail time for my DUI? That’s a question that I hear often. Note that the answer to this question discussed here applies to California law, and specifically, Orange County DUI cases, which is where our law firm focuses and practices.
It’s understandable that fear related to a DUI arrest revolves around the possibility of jail time. Losing driving privileges from a DUI is also another very common fear. No one wants to lose their job from a DUI arrest because you are in jail, or lose a job because you can’t drive, or have to explain to family, friends, or future employers that you have to serve a jail sentence.
Every law has a minimum and a maximum, and California Vehicle Code CVC 23152(a), or CVC 23152(b), or 23152(e) [for drug DUI cases] each have, for first time offenders, a minimum of zero jail time, and a maximum of six months (180 days) of jail.
Often, many public defenders, or even my fellow DUI lawyers in the community, will use this fact to scare you. “You are facing up to six months in jail!”, they will tell you, either to scare you into hiring them, or scaring you into taking a particular deal. Fortunately, in most cases, it is not true that you are facing jail time.
In Orange County, unlike other neighboring counties, you will not typically do jail time. However, there are some exceptions that should be discussed.
First, if there is anything that makes the DUI a felony, which for first-time offenses means a DUI with great bodily injury, it can carry jail time, due to the fact that it’s a felony. There are ways around that also, but it’s a very real possibility.
If there are any of the following, jail time is possible, but honestly, probably not probable, at all:
- A DUI with an accident (which the Orange County DA’s office usually handles by having community service done, plus restitution);
- A DUI with a child in the car (defined as anyone under age 18);
- A DUI defendant on probation (for anything that was a misdemeanor or felony);
- Any DUI with a prior;
- Speeding while DUI; or
- Being above a .16% blood alcohol (double the legal limit or higher)
As mentioned, those are enhancements, allowing the prosecutor to seek jail time, but except for the probation or priors, most would not cause jail time.
In other counties, however, a first time DUI is treated differently, as follows:
- With Riverside County DUI cases, all DUI cases, including first time DUI cases, get 10 days in the county jail if offered by the prosecutor at arraignment, or 5 days of the county jail, if offered by the judge, with the offer to serve that through the county work program.
- In San Bernardino County DUI cases, first time DUI cases generally have no jail time, but jail time is sometimes offered for the enhancements above.
- In Los Angeles County DUI cases, first time DUI cases carry no jail time in most cases, but the county park program, or jail time, is sometimes offeredfor more severe enhancements. Jail time is sometime offered, as the prosecutors and judges know that the overcrowding situation in LA jails means that a person serving any jail time sentence will do 10% or usually much less. 90 days often means serving 3 days or less, sometimes being just fingerprinted and released. 10 days would not mean an overnight stay typically.
- In San Diego County DUI cases, jail time is often given out IF there are any enhancements listed above. Usually that is easily converted to community service or any other alternative sentencing.