How Likely is Jail Time for a First DUI in Virginia

There are FOUR main factors in your DUI first in Virginia that increase the likelihood of jail time:

1. JURISDICTION/LOCATION of your DUI
2. ENDANGERMENT LEVEL
3. BAC LEVEL
4. LACK OF LEGAL DEFENSE

JURISDICTION/LOCATION of DUI

Every jurisdiction is different in how they treat DUI offense, even first offenses. Some are a bit easier than others, and others are more strict about DUI offenses. The location or jurisdiction is important because it determines who your particular judge will be, and it also determines who your prosecutor will be.

When it comes to a DUI in Virginia, the prosecutor will determine whether to offer a plea agreement or not, and if so what that plea agreement will look like. So the prosecutor will have a say in what OFFER is made, if any. They are also important in determining how they view your case, and any potential legal defenses.

The judge will determine whether to accept or reject any proposed plea agreement. They will also determine your guilt or innocence if you decide to plead NOT GUILTY. And they will sentence you if there is no plea agreement and you are found guilty of DUI or DUI first in Virginia.

ENDANGERMENT LEVEL

This is probably the most important factor to consider when looking at the likelihood of jail time for a first DUI in Virginia. Both the judge and the prosecutor will consider this. You can think of endangerment as a spectrum. On the one end you may have a Virginia DUI case with no endangerment really. This would be a checkpoint stop where you drive through a checkpoint. The officer notices the smell of alcohol and asks you to take a breath test and you blow a .08 which is about the lowest level MOST officers charge DUI at. These cases do not involve a lot of endangerment because there is no driving behavior, weaving or tailgating and the BAC is very low. This would also be a case where someone MAY want to contest in court and MAY win based on the lack of evidence. So the endangerment is low, AND your have more legal defenses.

At the other end of the spectrum are cases where there is driving behavior such as weaving, tailgating, higher speeds, and there could be an accident as well. Accidents increase the endangerment level. If you have a higher speed accident that is even worse. And to top it all off you may have a high speed accident, with passengers and serious injury. And you can also have a higher BAC. The likelihood of jail is GREATLY increased for accident cases.

BAC LEVEL

BAC means your blood alcohol level. In Virginia if you are convicted of a DUI or a first DUI in Virginia your BAC plays a role in how the judge and prosecutor view your case. The lower the BAC the better. Many locations consider reducing or amending a Virginia DUI to a lesser charge where the BAC is .08-.10. That is a lower BAC level. It does not mean every Virginia DUI is reduced or amended at that BAC but the likelihood of a better result increases the lower the BAC level.

If you are found guilty of a BAC between .15-.20 the JUDGE MUST GIVE YOU JAIL TIME. This range, even for a first DUI in Virginia requires a MANDATORY MINIMUM 5 days in jail. Some judges will go above that but the MANDATORY MINIMUM is 5 days.

If you are convicted of a BAC above .20 so starting at .21 and up, it is 10 MANDATORY DAYS IN JAIL for a DUI first in Virginia.

LACK OF LEGAL DEFENSE

It is VERY important that you hire a specialized traffic lawyer who is WELL VERSED in VIRGINIA DUI LAW. At Leavitt & Martin, we have plead NOT GUILTY and won DUI cases in Virginia at elevated levels and also second offenses and more. These are cases that involved 20 days in jail or more and OUR CLIENTS WON their case.

If there is no legal defense, it can definitely impact what offer, if any the prosecutor makes. Prosecutors are LESS LIKELY to offer you no jail or a better outcome if you do not have a legal defense.

EXAMPLE: In Henrico, Virginia which is near Richmond, my Virginia DUI client was charged with a DUI with a highly elevated BAC of .24. The prosecutor offered the mandatory minimum, which for him was TWENTY DAYS IN JAIL. Based on an excellent legal defense, we entered a plea of NOT GUILTY. This scared the prosecutor because she was not prepared to try her case. She requested a continuance and we objected to that since we were in court and ready. The judge granted the continuance as they usually do.

The prosecutor then apparently reviewed the case more and realized we were serious about our legal defense and SHE OFFERED TO REDUCE THE CHARGE WITH NO JAIL AND NO LICENSE SUSPENSION JUST A FINE. To be frank, I think we would have won if we went to court but there was a risk the prosecutor could win and if she won my client would have gone to jail for 20 days. So my client accepted the plea agreement.

HIRE A SKILLED VIRGINIA DUI LAWYER

You will want a skilled Virginia DUI lawyer who can thoroughly evaluate your case and its merits, or lack thereof. I have had plenty of cases where I could build some level of legal defense. In fact, I would say that in MOST DUI cases I handle there is SOME legal defense. It is more a question of how strong the legal defense is.

But MOST CRIMINAL DEFENSE LAWYERS IN VIRGINIA DO NOT KNOW OR UNDERSTAND VIRGINIA DUI LAW. I once had an experienced criminal defense attorney talk about how DUI defense is holding hands with the client and that is all. I could not disagree more. Most DUI cases in Virginia are somewhat built on administering the STANDARDIZED FIELD SOBRIETY TESTS and believe it or not, but MOST POLICE OFFICERS DO NOT KNOW HOW TO PROPERLY administer these tests according to NHTSA standards.

Contact Leavitt & Martin for a free consultation at 804-873-4004.