Is Jail Time Required in a Georgia DUI Case?

Can a Person Avoid Serving Time in Jail After a DUI Arrest in Georgia?

Typically, a DUI charge in the state of Georgia is a misdemeanor offense. Regarding the requirements for the sentencing of misdemeanors, O.C.G.A. § 17-10-3 provides guidance. Subsection (c) provides, in its relevant part, that “[c]onfinement during the nonworking hours of a defendant during any day may be counted as serving a full day of the sentence.” Therefore, under the plain meaning of the misdemeanor sentencing statute, a Defendant convicted of a misdemeanor and sentenced to a day in jail may get credit for a full day even if they did not serve 24 hours in custody. 

In particular reference to violations of Georgia code section 40-6-391, or DUI offenses, there is a distinction between DUI cases in which there is a chemical test that exceeds .08 for a driver over age 21 and cases in which there are no such results. O.C.G.A. § 40-6-391(c)(1)(B) requires a Defendant convicted of a DUI offense to serve, “ [a] period of imprisonment of not fewer than ten days nor more than 12 months, which period of imprisonment may, at the sole discretion of the judge, be suspended, stayed, or probated, except that if the offender's alcohol concentration at the time of the offense was 0.08 grams or more, the judge may suspend, stay, or probate all but 24 hours of any term of imprisonment imposed under this subparagraph.” 

Thus, a critical distinction exists between DUI less safe offenses and DUI per se offenses (where a person had an alcohol concentration of .08 or more) concerning a 24-hour minimum jail requirement. It is clear under Georgia law that no jail time is required for a DUI – less safe conviction. 

In Costin v. State, 269 Ga. App. 632 (2004), the Defendant pleaded guilty to driving under the influence of alcohol to the extent it was less safe for him to drive. The trial court sentenced him to 12 months in jail but probated all but 24 hours of the sentence. The Defendant had already served 11 hours in jail and requested the trial court to waive the remainder of his jail time, but the trial court refused, arguing that O.C.G.A. § 40-6-391 mandated a minimum 24-hour jail sentence. The Defendant appealed this finding, contending that the trial court misconstrued the Code section. Id. 

The Georgia Court of Appeals reviewed O.C.G.A. 40-6-391 and explicitly disagreed with the trial court. The Court of Appeals found that the law did not require an imposition of a 24-hour jail sentence for a DUI – less safe offense. Id. 

The Court reasoned that “[c]riminal statutes, which are construed strictly against the State, must be read according to the natural and obvious import of their language, and their operation should not be limited or extended by application of subtle and forced interpretations.” Id., at 633. 

The Court of Appeals found that the trial court misinterpreted the statute and refused to consider the Defendant's request that it waive the remainder of his jail time. Although the trial court was not required to suspend or probate any portion of the Defendant's jail time, the Court held that the trial court errs whenever it refuses to consider viable sentencing options, and this is a failure to exercise its discretion. Id., at 634.

Finally, a trial court may not refuse to consider a Defendant's request to waive jail time. In Wilcox v. State, 257 Ga. App. 519 (2002), the Court held that a trial court's use of a mechanical sentencing formula or policy as to any portion of a sentence amounts to a refusal to exercise its discretion and therefore is an abdication of judicial responsibility. A trial court is required to exercise discretion rather than apply inflexible rules. It was held that a rigid sentencing policy based solely on the crime with which the defendant is charged is not a reasonable exercise of judicial discretion.


There is no jail time requirement for a Defendant convicted of a DUI less safe offense, and it is an abuse of discretion for the court to fail to consider honoring a DUI less safe Defendant's request to waive jail time. 

That being said, a judge can lawfully sentence someone to up to 12-months in jail, even if it is that person's First Georgia DUI

Choosing the Best DUI Lawyer

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At the Law Office of Richard S. Lawson, we have offices conveniently located throughout metro Atlanta and throughout Georgia. If we do not have a convenient office, we will come to you. We practice throughout Metro Atlanta and North Georgia. If your case is in an area we do not serve, we will find you an attorney in your area free of charge. Our office is part of a State-wide network of Georgia DUI Lawyers. Contact us 24/7 for immediate legal help. Our attorneys are standing by. Your DUI Case will not defend itself. Your Best Georgia DUI Defense Begins Here!