This question actually suggests a number of issues. Primarily people ask this question in the context of a first time DWI conviction. The short answer to this question is “No, there is no jail time for a first time simple DWI conviction.”
However, as with all issues related to criminal law, the issue is bit a more complicated than that. A first time conviction for aggravated DWI carries mandatory jail time. Moreover, a first time simple DWI offender can be jailed subsequent to a conviction and it is not unusual that this occurs, particularly in Albuquerque Metropolitan Court where we Collins & Collins, P.C. has the bulk of our DWI cases.
First Offender Program:
The DWI First Offender Program is based in statute. There are a number of mandatory sentencing provisions under the First Offender Program. Jail time is not among the mandatory provisions.
The mandatory provisions include such things as DWI school, Victim Impact Panel, community service, ignitions interlock device for one year, and the payment of court and probation costs. There are a number of other conditions that can be imposed at the discretion of the judge depending upon the circumstances.
Violation of any conditions imposed by the court, whether they are mandatory or discretionary, can and often do result in jail time. Before we get that issue, we should address the mandatory jail time on aggravated DWI.
Aggravated DWI is a typically a DWI involving a breath alcohol score of .16 or greater. In other words, a DWI is aggravated if the breath score is twice the legal limit or above.
However, DWI can be aggravated for other reasons as well. This would include DWI resulting in accidents and injury to another. Most common, a DWI is aggravated when the suspect refuses to submit to a breath or blood test under the New Mexico Implied Consent Act.
In the event that a person is convicted of aggravated DWI, there is mandatory jail time even on a first offense. The mandatory jail time for a aggravated first time DWI is 48 hours.
Violations of Conditions of Release:
Every DWI charge will result in conditions of release being set by the court while the case is pending. A condition of release basically means that these conditions must be met while the case is pending or the defendant will go to jail.
The standard conditions of release include the following: 1) no possessing or consuming alcohol or illegal drugs, 2) no further violations of law, 3) no driving without a valid license (which may include an interlock device following the MVD License Revocation Hearing. Other conditions may be imposed by the judge depending upon the circumstances including regular meetings with probation and random urine tests.
Violations of the conditions of release are taken very seriously. They are seldom tolerated. Repeated violations almost always result in jail time. If you are jailed on a violation of a condition of release, you can be held in jail until trial or until the case has otherwise concluded.
Violations of Probation (Terms of First Offender Program)
The First Offender Program is designed to give first time DWI offenders a break. However, the terms of probation are taken very seriously. Violations of the terms of probation will result in jail time. Like violations of conditions of release, repeated violations will almost always result in significant jail time.
How long can you go to jail on a violation of probation? The statute calls for a mandatory 48 hours for the violation of any condition of probation. In cases of serious violations or repeated violations, you will likely go to for the full 90 days allowed under the statute.
Keep in mind that any violation of probation can result in up to 90 days. The mandatory 48 hours is a minimum, not a maximum.
If you are facing a first time DWI, it is important to understand all the possible penalties that you may be facing. Equally if not more important, you need to understand how to avoid those penalties that can be avoided.
The Albuquerque DWI defense attorneys at Collins & Collins, P.C. are here to help. Give us a call or contact us online.