I suppose I can really only to speak to criminal defense in and around Austin, but the general answer to this question is going to be “No”. We need to dig a little deeper though.

Assuming, as the question does, that the person has never been arrested before, and is charged with a first time offense of DWI, Possession of Marijuana, Theft, or some other non assaultive offense, most judges will grant the defendant probation, even if they go to jury trial and lose. And most cases, fewer than five percent, end up going to jury trial; most criminal cases are wrapped up in some form of plea bargain, whether it involves being convicted, deferred probation, a reduction of charges, or even an agreed dismissal.

Unfortunately, there are too many attorneys who speak with potential clients in a manner that implies that jail is a likely outcome, if they do not accept the prosecutor’s offer of a conviction and probated (no jail) sentence. While it’s occasionally true that severe aggravating circumstances might make jail a likely scenario, my experience is that for first time offenders, that’s unusual.

Another thing I tell my clients in the initial meeting is that it’s the conviction itself that is often the real punishment, not the probation that a judge might give as a likely sentence. I’m not minimizing the time, effort, expense and hassle that probation may cause a person, but the truth is that most of my clients can stay out of trouble for a while, perform some community service, and if necessary, report once a month for a short visit with a probation officer.

But once the judge convicts you, that’s it. No Expunction, no destroying the records, no Motion for Non-Disclosure, no sealing the criminal history. And the conviction follows you around for the rest of your life. So while asking “Am I going to jail?” is a standard and reasonable question from someone facing the “criminal justice system” for the first time, perhaps “Is there anything I can do to get this off my record completely?” would be a more important one.