Will I Go To Jail for a DUI?

We understand you are scared – anyone would be. After you read this you may feel better, and we encourage you to call our firm. This information is only a portion of what we know. This is a question we get asked all the time. I can offer answers to this question based upon the following qualifications:

I have litigated thousands of DUIs in two different states as both a prosecutor and a defense attorney and have also done many sentencing arguments for DUIs. I have litigated DUI trials in front of a jury over 20 times, and achieved many favorable verdicts for my clients.  I have been reading DUI police reports and spotting issues within them since the year 2000.

The simplest answer is:  You are probably not going to jail.  You are only MORE LIKELY  to go to jail if your case/situation fits into one of the three (3) most-common aggravating factors.

FACTOR #1 – Do you have any prior DUIs? 

At some point – everyone gets to the point where they have had too many second chances, too many bites at the apple, and a judge or a prosecutor runs out of patience with your behavior. This factor may or may not apply to prior offenses in other states. We are assuming any prior offenses that are known by the prosecution. Sometimes, state of Nevada prosecutors find out about these priors, sometimes they do not. However, in this day and age of free-flowing information, I would not count on any out-of-state priors staying unknown for long. Also, how many priors you have makes a difference, as does their recency, and their seriousness. Nevada law states what one may be looking at in terms of jail time as specified in the paragraphs below.

For a first conviction in seven years: $400 to $1,000 fine; jail term of not less than 2 days nor more than 6 months, or 48 hours to 96 hours of community service and if the driver is found to have a concentration of alcohol of 0.18 or more in his blood or breath, he must attend a program of treatment for the abuse of alcohol or drugs pursuant to the provisions of NRS 484.37945.

For a second conviction within 7 years: Jail term of 10 days to 6 months or residential confinement for not less than 10 days nor more than 6 months; $750 to $1,000 fine or an equivalent number of hours of community service while dressed in distinctive garb that identifies the offender as having violated the provisions of NRS 484.379; and the driver may be ordered to attend a program of treatment for the abuse of alcohol or drugs pursuant to the provisions of NRS 484.37945.

For a third offense within 7 years, a driver is punished for a Category B felony, by prison for one to six years; $2,000 to $5,000 fine. The 2005 Nevada Legislature increased the penalty for any subsequent offense. The biggest change to the law is the “once a felon, always a felon” provision of NRS 484.3792(2), which provides that when an individual has been once convicted of a DUI that was punished as a felony, all subsequent DUI arrests, whenever they occur and without regard to how many years have elapsed since the last DUI felony, will also be punished as felonies, but with increased penalties. All offenses which fall under this category are punishable as a Category B felony, with a sentence of 2 to 15 years in prison.

For the purposes of sentencing, it is notable that prior offenses need not be proven in the order in which the offenses occurred. For example, a person could be prosecuted for the offenses in any order. The last occurring DUI offense need not be the offense being punished as a felony. NRS 484.3792(3). Further, in Nevada, probation is not available for any felony DUI offense, and a sentence cannot be suspended, except for the portion of the sentence that exceeds the mandatory minimum. (NRS 484.3792(4). A prosecutor cannot reduce a DUI charge in a plea agreement unless he or she knows that the charge is not supported by probable cause or cannot be proved at the time of trial. This is where the importance of an experienced attorney may be critical for your case.

As you can see, Nevada law is written to potentially increase jail time if you have priors.

You can read the Nevada Revised Statutes by clicking this link.

Visit our website for more information on Nevada DUI law and defenses by clicking this link.

FACTOR # 2 – Was anyone injured – or killed as a result of this DUI?

Nevada law states that if you, the driver, cause the death of, or substantial bodily harm to, a person other than yourself, you are guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years and must be further punished by a fine of not less than $2,000 nor more than $5000. This is a non-probationable offense.

Whether this factor or statute applies is usually obvious on the face of medical records provided by the prosecutor. However, there is occasionally a dispute as to what constitutes “substantial bodily harm” (see below)

“Substantial bodily harm” means:

“Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ; or 2. Prolonged physical pain.”

Anyone who has ever had cracked ribs, a broken bone, a sprained ankle or even a soft-tissue injury to the neck knows that all of those can cause “prolonged physical pain”.

As a Rule of Thumb – the greater the alleged injury, the higher the likelihood that you may be going to prison or that the prosecutor is SEEKING jail or prison.

For more information on felony DUIs visit our website by clicking this link.

FACTOR # 3 – How much alcohol or controlled substance was in your system at the time of the offense?

Any breath sample above .150 ventures into the area of “twice the legal limit”. It’s a catch-phrase that prosecutors, judges and jurors know well. It involves the argument that anyone “should have known better” than to drive at that advanced stage of alcohol consumption. At that level the decision to drive cannot be characterized as an easy mistake i.e. it wasn’t a close call. The word “drunk” has no legal meaning, but that state-of-being is commonly associated with certain BAC levels in the .15 range and above. As a lawyer we all know, and many of us have said to jurors that “alcohol affects different people in different ways”. While that may be true, no matter how it affects a particular defendant, that person should DEFINITELY not be driving at those higher-than .15 BAC levels.

At the .15 level and above – (in my opinion) a defendant’s risk of going to jail or prison increases by at least 3x. It is an obvious reason for a prosecutor to argue that a judge should incarcerate someone, and it is a legally sufficient reason for a judge to agree and do it.

Nevada does have a requirement that the results be collected within two hours, and that rule is violated more often than one might expect.

The TWO HOUR RULE in NRS 484C.110(1)(c) provides that a person is guilty of DUI if he has a 0.08 or more BAC within two hours of driving. There is no two-hour rule for a DUI drugs or prohibited substance so the defendant’s blood need not be collected within two hours of his driving in such case.

Naturally the sooner the blood sample is collected after driving, the more accurate the test result will be.  Furthermore, Nevada requires a Chemical Dependency Analysis to be conducted if the defendant’s BAC was .180 or above.  This typically means more classes and treatment.


The above factors are what I considered the most when I was deciding to seek jail or prison – or make it part of a plea offer back when I was a prosecutor.  However, I learned over the years that these factors do not always mean one will ultimately go to jail or prison for a DUI.  These numbers do not guarantee certain sentencing outcomes, we can only discuss likelihoods. I learned that even with bad facts, an attorney may still find a defense to keep his or her client out of jail with a higher BAC, it just presents a greater challenge.

About the author:

Michael Anello is a licensed practicing attorney in Nevada and Florida.  A former prosecutor and corrections officer, he now spends his time defending clients charged with misdemeanor and felony DUIs at the Law Offices of Adam J. Graves.  He can be reached at 702-895-9111 or www.adamgraveslaw.com