Will I Go to Jail for a DUI in Florida?

Understand the Jail Risks, Penalties, and Defenses in Florida DUI Cases and Why Early Legal Representation Matters

When someone asks me, “Will I go to jail for a DUI in Florida?”, the answer depends on several factors. Your prior history, the facts of the case, whether anyone was injured, and even how your case is handled in the local courthouse can all impact the outcome. As a Florida DUI defense attorney, I’ve represented hundreds of clients across the state and havehelped many of them avoid jail, even in cases where it seemed like a jail sentence was certain.

Let me walk you through what the law says, what you’re facing, what defenses may apply, and why hiring a private DUI attorney could be the difference between jail time and a second chance.

What the Law Says About Jail Time for DUI in Florida

Florida law lays out mandatory and potential penalties for DUI offenses under Florida Statutes § 316.193. Whether it’s your first offense or your fourth, this statute outlines exactly how the penalties escalate, including jail time.

First DUI Offense – Jail Is Possible

“Any person who is convicted of a violation of subsection (1) shall be punished… by imprisonment for not more than 6 months.” – § 316.193(2)(a)

If your blood alcohol level (BAL) is 0.15 or higher, or a minor was in the car, the maximum jail time increases to 9 months. While first-time offenders don’t always serve jail time, some counties do push for at least a short stint behind bars unless a deal is worked out early.

Second DUI Offense – Jail Is More Likely

“By imprisonment for not more than 9 months. If the BAL was 0.15 or higher or a minor was in the vehicle, not more than 12 months.” – § 316.193(2)(a)2

If the second conviction happens within five years of the first, there’s also a mandatory minimum of 10 days in jailunder § 316.193(6)(b).

Third DUI Within 10 Years – Felony and Mandatory Jail

“A person who is convicted of a third violation… within 10 years… commits a felony of the third degree… shall be punished by imprisonment for not less than 30 days.” – § 316.193(2)(b)1

This level of offense becomes a felony and brings much harsher penalties. A conviction almost always means jail or prison time unless you successfully fight the charge or negotiate a lesser offense.

DUI with Injury or Death – Felony with Extended Incarceration

“A person who… causes or contributes to causing serious bodily injury… commits a felony of the third degree.” – § 316.193(3)

DUI Manslaughter is a second-degree felony, punishable by up to 15 years in prison, and carries a mandatory minimum of 4 years in prison under § 316.193(3)(c)3.

This is why I always emphasize that DUI charges should be taken seriously, even for first-time offenders. One poor decision or an aggressive prosecution can change your entire life. If you don’t have a strong defense from the very start, you might end up in jail—even if you’ve never been in trouble before.

A Real Case We Handled: No Jail on a Second DUI with High BAC

A client came to us after being arrested for DUI in Hillsborough County. It was his second DUI, and his breath test came back at 0.18—more than twice the legal limit. He had a prior conviction four years earlier in a different part of Florida. He assumed he was facing 10 days in jail minimum. The prosecutor offered 20 days, citing the high BAC and prior record.

We got to work right away. We requested video from the arresting officer’s dash cam, reviewed calibration records for the breath test machine, and subpoenaed the arresting officer’s disciplinary history. We found inconsistencies in the traffic stop report and identified issues with how the breath test was administered. Ultimately, we were able to get the prosecutor to drop the DUI to a reckless driving charge with probation and no jail time. The client kept his job and never spent a day in custody.

Without aggressive private defense work, he would’ve served jail time and possibly lost his professional license.

Why a Private DUI Defense Lawyer Can Help You Avoid Jail

The public defender system in Florida is overburdened. While many public defenders are knowledgeable, they don’t always have the time or resources to challenge every detail in your case. In contrast, I start every DUI defense by identifying every legal and factual defense available to you.

Whether the issue is an illegal traffic stop, faulty breathalyzer results, or mishandled evidence, I work to uncover the problems in the state’s case. That kind of effort requires dedicated attention—something only a private attorney can offer you from the start.

Common DUI Defenses That Can Keep You Out of Jail

Illegal Stop or Lack of Probable Cause

If the officer pulled you over without a legal reason, any evidence collected afterward can be suppressed. This often results in the case being dismissed or reduced.

Faulty or Unreliable Breath or Blood Tests

Breath machines must be maintained and calibrated according to strict protocols. If the equipment was faulty or used incorrectly, the results may not be admissible.

Medical or Health Conditions

Certain medical issues—like acid reflux, diabetes, or neurological disorders—can mimic signs of intoxication or even interfere with breath test results.

Miranda Violations and Improper Questioning

If the officer failed to advise you of your rights during the arrest or pressured you into making statements, those admissions might be suppressed.

These defenses are only effective when they’re uncovered early. That’s why I always recommend calling a lawyer the moment you’re arrested—or even if you just suspect charges are coming.

What About DUI Programs or Diversion? Will That Keep Me Out of Jail?

Some counties in Florida offer DUI diversion programs for first-time offenders. These are sometimes called “Back on Track” or “DUI Deferred Prosecution” programs. If you’re eligible and complete the program successfully, you may be able to avoid a DUI conviction and jail time altogether.

But these programs aren’t automatic. Prosecutors decide who gets in, and they often require legal negotiations. As your attorney, I can present your background, employment, and circumstances in a way that gives you the best chance of being accepted.

Even if diversion isn’t an option, I can often work out a negotiated plea to a lesser offense, such as reckless driving, which may carry probation, community service, and fines—but not jail.

Will I Go to Jail If I Refused the Breath Test?

Refusing a breath test in Florida has consequences, but it doesn’t automatically mean jail time. It does carry a one-year license suspension for a first refusal under Florida Statute § 316.1932, and prosecutors may try to use the refusal as evidence of guilt.

But I’ve successfully argued that refusals are not proof of impairment. In fact, I’ve had many cases where we challenged the legality of the arrest or stop, and the entire case was thrown out—breath test or not.

Why Jail Is Not Always the Outcome—If You Act Quickly

Many people assume that once they’ve been arrested for DUI, jail is inevitable. That’s simply not true. Most clients come to me feeling defeated, and they’re surprised to learn that there’s a path to avoiding incarceration, sometimes even avoiding a conviction entirely.

But the key is early and aggressive representation. From the first hearing to the final court date, having a private attorney makes a significant difference in how your case is handled, how the prosecutor approaches negotiations, and whether the judge is open to alternatives like probation or diversion.

Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have 30 office locations in Florida and serve all counties in Florida.

Florida DUI Jail Sentence Frequently Asked Questions 

Can you go to jail for a first DUI in Florida?

Yes, jail is a possible outcome for a first DUI conviction in Florida. The law allows up to six months in jail, or up to nine months if your BAC was 0.15 or higher, or if a minor was in the car. That said, jail is not mandatory on a first offense, and many people avoid jail through plea agreements, diversion programs, or by fighting the charge altogether. A private attorney can work to have the charge reduced or dismissed and can often help keep you out of custody.

Is there a mandatory jail sentence for a second DUI in Florida?

If your second DUI occurs within five years of your first, Florida law requires a minimum of 10 days in jail. The court must impose this time as part of sentencing, but there are sometimes alternatives available, including programs that substitute time served with treatment or community service. If the second offense happened more than five years later, jail is not mandatory, but the court can still impose up to nine months.

How much jail time do you get for a third DUI in Florida?

If your third DUI is within 10 years of a previous conviction, it becomes a third-degree felony with a mandatory minimum of 30 days in jail and up to five years in prison. If the third DUI is more than 10 years after the last one, it can still be charged as a misdemeanor, but the judge has discretion to impose jail time. These cases are extremely serious, and having a private defense lawyer can help you avoid prison by attacking the validity of prior convictions or negotiating lesser charges.

Can I avoid jail if I agree to probation or DUI school?

Yes, in many first or even second DUI cases, you can avoid jail if you accept probation, complete DUI school, and fulfill other conditions like community service and alcohol counseling. These terms are often part of a plea deal. It’s importantto have a lawyer who can negotiate effectively with prosecutors and present your circumstances favorably to the court.

Does having a high BAC guarantee jail time in Florida?

A BAC of 0.15 or higher increases the possible penalties, including a higher fine and more potential jail time. However, it does not guarantee jail. Prosecutors often push harder for jail in high BAC cases, but an attorney can raise challenges about how the test was conducted or whether the equipment was accurate. I’ve handled many high BAC cases that ended with no jail time.

If I caused an accident while driving under the influence, will I definitely go to jail?

Accidents complicate DUI cases and increase the likelihood of jail, especially if someone was injured. Causing serious bodily injury while driving under the influence is a felony in Florida, punishable by up to five years in prison. That said, jail is not guaranteed. In some cases, we’ve been able to show that the accident was not our client’s fault or that injuries were exaggerated. Early legal defense is critical in these situations.

Is jail time longer if I refused the breath test?

Refusing the test does not directly increase jail penalties, but it can make prosecutors and judges more aggressive. Refusal can also trigger a license suspension. The state might argue you refused because you knew you were impaired. That said, I’ve had many cases where refusal didn’t hurt the defense, and sometimes it actually helped avoid a DUI conviction.

How can a private DUI attorney help me avoid jail in Florida?

Private attorneys have time to focus on your case in a way public defenders often cannot. I review every piece of evidence, identify weaknesses in the prosecution’s case, and look for alternatives to incarceration, like diversion programs or lesser pleas. More importantly, I step in early—sometimes even before charges are filed—and begin building a defense that gives you the best chance to stay out of jail.

Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation

Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have 30 office locations in Florida and serve all counties in Florida.