Penalties for a Second DUI Conviction within 5 Years

What are the penalties for a Second DUI Conviction?

The answer to this question depends on how long ago your last DUI arrest was (that resulted in a conviction).

The DUI law "looks back" to the last DUI arrest (that resulted in a conviction) and determines if this current DUI arrest was within the last 10 years of the last arrest.

The DDS, however, "looks back" to your last DUI arrest (that resulted in a conviction) and determines if this new DUI arrest was within the last 5 years of the last arrest. Most people (and some lawyers) mistakenly think the date of the conviction is what matters, but it doesn't. What matters is the dates of arrest.

The penalties for a 2nd DUI conviction if this arrest was within the last 10 years (or within the last 5 years) will come from two different sources: (1) the DUI law; and (2) the DDS rules.

(1) DUI law (10 year "look back" rule):

The DUI law "looks back" to the last DUI arrest (that resulted in a conviction) and determines if this current DUI arrest was within the last 10 years. This is covered by OCGA 40-6-391(c)(2).

OCGA 40-6-391(c)(2) says:

(2) For the second conviction within a ten-year period of time, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted:

(A) A fine of not less than $600.00 and not more than $1,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation;

(B) A period of imprisonment of not fewer than 90 days and not more than 12 months. The judge shall probate at least a portion of such term of imprisonment, in accordance with subparagraph (F) of this paragraph, thereby subjecting the offender to the provisions of Article 7 of Chapter 8 of Title 42 and to such other terms and conditions as the judge may impose; provided, however, that the offender shall be required to serve not fewer than 72 hours of actual incarceration;

(D) Completion of a DUI Alcohol or Drug Use Risk Reduction Program within 120 days following his or her conviction; provided, however, that if the defendant is incarcerated and such program cannot be completed within 120 days, it shall be completed within 90 days of his or her release from custody. The sponsor of any such program shall provide written notice of the Department of Driver Services' certification of the program to the person upon enrollment in the program;

(E) A clinical evaluation as defined in Code Section 40-5-1 and, if recommended as a part of such evaluation, completion of a substance abuse treatment program as defined in Code Section 40-5-1; and

(F) A period of probation of 12 months less any days during which the person is actually incarcerated;

With respect to the DUI law, the two big points are if you are convicted of a second DUI within 10 years, the DUI law says you must receive a sentence of:

90 days to serve in jail (not to be reduced below 72 hours of actual incarceration).
30 days of community service (240 hours).

(2) DDS rules (5 year "look back" rule):

DDS "looks back" to your last DUI arrest (that resulted in a conviction) and determines if this new DUI arrest was within the last 5 years.

If it was within five years, there are two important points:

the DDS will suspend your license for 18 months.
You cannot get a work permit for 120 days. After 120 days, you are eligible for an ignition interlock limited permit.

Take a look at the DDS Manual's rules on a 2nd in 5 DUI convictions:

Summary

Because the DUI law and the DDS rules have two different "look back" time periods, the courts and the DDS may treat you differently. For example, if your last DUI arrest was within the last 10 years, but not within the last 5 years, the court will sentence you to at least 72 hours of actual incarceration, but DDS will treat you as though this is your first DUI (meaning you are eligible for a work permit immediately).