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12Dec

Jail Time or Just a Fine? Understanding the Penalties of a DWI Misdemeanor

Do you get jail time or just a fine for a DWI misdemeanor?

That’s a good question and, like most good questions, it’s best answered with “that depends”.

Driving While Intoxicated (DWI), also known as DUI, or Driving Under the Influence, depends on a lot of things.

It depends on how intoxicated you are, whether it is your first offense, whether you were also driving without a license and/or under 21, and whether anyone else was harmed at the time.

Some States refer to the offense as an OWI, which stands for operating a vehicle while intoxicated.

We’re going to stick to using DWI in this article, to keep things clear.

It’s important to know what a DWI misdemeanor is, and it’s best to keep yourself informed. Read on to get a better understanding of what Louisiana law says about it.

Any vehicle, any substance

If you think DWI applies only to driving vehicles after having a few too many drinks, you would be wrong.

In fact, in Louisiana, the law prohibits the operation of a motor vehicle, aircraft, or watercraft if you have a BAC (blood alcohol content) of .08% or greater (or over 0% if under 21).

A BAC of .08% means that you have exceeded the legal limit of alcohol content in your blood and are considered intoxicated (drunk).

Lousiana’s zero-tolerance policy means that a DWI charge will also apply to anyone under the legal drinking age of 21 found to have a BAC of over 0%.

And it’s not just alcohol that you have to worry about. You can be charged with a DWI misdemeanor

  • while under the influence of alcohol or controlled substances, such as marijuana, or
  • while under the influence of alcohol and a legally obtainable drug, such as over-the-counter remedies or prescription medication.

When is a DWI charge a misdemeanor?

A DWI is considered a misdemeanor, or lesser criminal charge, in Louisiana if it is the first offense. A first offense means that the driver has had no prior DWI convictions in the past ten years.

There are some exceptions to this general statement. For instance, some serious driving-related convictions (such as vehicular homicide) can act as a prior offense and increase the penalties for a DWI conviction.

Let’s first look at the lowest level of DWI misdemeanor, and what it means in terms of penalties.

Penalties – first-offense DWI misdemeanor

  • 48 hours in jail
  • A conviction is punishable up to six months in jail
  • house arrest may be possible instead of jail time.
  • The convicted person will also have to pay a fine between $300 and $1,000, with up to two years’ probation, depending on the court.
  • If the driver had a BAC of .08% or more, the arresting officer is supposed to seize the driver’s license and issue a 30-day temporary license. Any objection to the suspension must be made within 30 days of seizure. The driver’s license will then be suspended for 90 days. After 30 days of suspension, the driver can apply for a hardship license.

So, those are the basic penalties for a first DWI where the offender has a BAC of .08% or greater. However, if the BAC is at the next level of .15%, then different criteria and penalties apply.

Is probation possible with a first-offense DWI misdemeanor?

Yes. The part of the jail sentence can be suspended, and the offender placed on probation. Note that suspended jail sentences are not granted if the DWI conviction involved injuries or passengers younger than 13 years old.

If the court grants probation, the offender must:

  • serve 48 hours in jail or complete 32 hours community service, half of which involves garbage pickup on the street.
  • complete a court-approved substance abuse program. This is mandatory, and the course and comprises three courses in substance abuse, driver improvement, and a MADD victim impact panel program. There is an active MADD program located in Baton Rouge, LA.
  • At least 32 hours of community service, half of which must be garbage pickup on the street

Hiring an Attorney

Obviously, it is best to always avoid driving while intoxicated. But if you are charged with DWI, you’ll definitely want to hire a good attorney in Louisiana who has DWI expertise. A criminal defense attorney will tell you what your rights are and can help you make informed decisions. Your attorney will represent you in court and advise you every step of the way.

Harsher Penalties

The old saying, “the greater the crime, the higher the gallows” still holds true in that a first-offense DWI misdemeanor can attract harsher penalties than those listed above. This will depend on a number of factors, which we have detailed below.

Excessive BAC Level & Driver’s License Suspension

If you’re convicted of a DWI charge based on a BAC of at least .15%, part of the penalty involves a minimum of 48 hours in jail that cannot be suspended

If the BAC is over .20%, the next level, then the 48 hours in jail is mandatory jail. The fine will be between $750 and $1,000, and an ignition interlock device (IID) must be installed for a period of 12 months after the driver’s license is reinstated.

If the driver had a BAC of at least .20%, the driver’s license will be suspended for two years, but the driver can apply for a hardship license after installing an IID.

If a violation of the child endangerment law has occurred, certain of the jail sentences cannot be suspended.

If you receive more than one suspension, the suspensions normally run concurrently. This means that the suspensions won’t be back-to-back.

Test refusal

Implied consent laws in Louisiana require all drivers lawfully arrested for a DWI to agree to a breath, blood, or urine test.

Unlawful refusal will result in your driver’s license being seized immediately and suspended for one year.

Unless the DWI involved bodily injury, you can still apply for a hardship license.

You are eligible to apply for a hardship license if you need the license for your livelihood. The hardship license authorizes you to drive to and from work, school, and home and may require an IID.

Some drivers may be eligible for what is called an IID restricted license. This license requires the use of an IID but normally comes with fewer restrictions.

If not already installed, the court will also order an IID for the duration of the probation period.

Second-offense DWI – Misdemeanor

A second DWI conviction attracts harsher penalties but follows the same principles.

  • A minimum fine of $750 to $1,000
  • 48 hours of the sentence must be served without benefit of suspension
  • 30 days of community service
  • The same re-education requirements exist in the case of a second time DWI.

Special penalty requirements for 2nd-time DWI:

  • If the BAC is over .15, then 96 hours of the jail sentence must be served.
  • If the BAC is over .20, then 96 hours of the jail sentence must be served, and the fine is $1,000. The driver’s license is suspended for 4 years, and an ignition interlock device must be installed for at least 3 years.
  • On the second offense, if there is a charge of negligent injury or vehicular homicide, certain jail sentences are mandatory. The prison term for the second offense becomes one to five years, with or without hard labor, and a fine of $2,000. Six months must be served without the benefit of suspension or parole.
  • The child endangerment penalties of the first offense also apply in the case of a second offense.

Is a DWI a felony in Louisiana?

In Louisiana, a drinking and driving charge is considered a felony when the offender has at least 2 previous DWI convictions within 10 years. A 3rd DWI, 4th or subsequent 4th DWI are all felonies with enhanced penalties upon conviction.

You Need Legal Expertise

As you can see from the above, knowing the ins and outs of the law are essential. If you are charged with a DWI misdemeanor as either a first or second offense, you are going to need the help of an attorney.

Baton Rouge has a criminal defense attorney who specializes in such cases.

He has a thorough knowledge of all the special circumstances related to DWI laws and penalties. Each case is different. If you’ve been charged with a DWI misdemeanor, it is in your best interest to contact criminal defense attorney Carl Barkemeyer as soon as possible.

Carl Barkemeyer wrote the published book on DWI: Practical Information for the Accused and Attorneys in Louisiana. He regularly gives lectures and advice to other attorneys regarding how to successfully defend clients for DWI.
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Louisiana DWI & Criminal Lawyers

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Louisiana criminal lawyers and DWI attorneys at the Barkemeyer Law Firm providing legal defense services for clients in Baton Rouge, Ascension, Livingston, Tangipahoa, Port Allen, Alexandria, New Orleans, Lafayette, Metairie, Kenner, Gretna, Hahnville, Chalmette, Slidell, St. Tammany, St. Charles, St. John, St. Bernard, Mandeville, Covington, Shreveport, Bossier, Jefferson, and all of Louisiana.

DISCLAIMER: The information on this website is not formal legal advice nor does it create an attorney-client relationship.

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