Most people know that a California DUI is a “priorable” offense. In simple terms, this means that if you pick up another DUI within ten years, the penalties increase automatically.
As a baseline, here’s how California DUI penalties generally break down:
- First DUI: Three to five years of summary (informal) probation, up to six months in jail, fines between $390 and $1,000, completion of a court-approved three-month DUI program, and a six-month driver’s license suspension.
- Second DUI (within 10 years): Three to five years of summary probation, a minimum of 96 hours up to one year in county jail, fines between $390 and $1,000, an 18-month DUI program, and a two-year license suspension.
- Third DUI (within 10 years): Three to five years of summary probation, a minimum of 120 days up to one year in county jail, fines between $390 and $1,000, a 30-month DUI program, and a three-year license revocation.
With that framework in mind, an important question often comes up:
Can a prior DUI from another state be used to turn a current California DUI into a “second” or “third” offense? As with many legal questions, the answer is: it depends.
The Key Issue: Do the Facts Match California Law?
An out-of-state DUI conviction may only be used as a prior in California if the conduct that led to that conviction would have constituted a DUI under California law.
In other words, the court does not just look at the name of the offense or the fact that another state labeled it a DUI or DWI. The court must compare the elements of the out-of-state statute to California’s DUI law and determine whether the underlying conduct satisfies California’s requirements.
This is where many out-of-state priors fall apart.
Florida as an Example — and Why the Differences Matter
Florida provides a clear example of how this analysis works.
Florida’s DUI statute states, in relevant part:
“A person is guilty of the offense of driving under the influence… if the person is driving or in actual physical control of a vehicle… when affected to the extent that the person’s normal faculties are impaired…”
At first glance, that may sound similar to California law. In practice, it is different in two important ways.
1. The Level of Impairment Required
Florida requires impairment “to the extent that the person’s normal faculties are impaired.” California, by contrast, requires impairment to an appreciable degree.
That distinction matters. Florida’s standard is less strict. A person could be deemed impaired under Florida law but not impaired to an appreciable degree under California law. If the conduct proven in the out-of-state case would not meet California’s impairment standard, the conviction cannot be used as a prior.
2. “Actual Physical Control” vs. Actual Driving
Florida is what is known as a “dominion and control” state. Under Florida law, a person does not need to actually drive to be convicted of DUI. Sitting intoxicated in the driver’s seat — even in a parked car — can be enough.
California law is different. California requires volitional movement of the vehicle. In other words, the person must actually drive. Simply sitting in the driver’s seat while intoxicated does not qualify as a DUI in California.
This difference alone often determines whether an out-of-state conviction can be used to enhance a California case.
Putting It Into Context: A Real-World Example
Imagine this scenario:
In 2019, John Doe is arrested and convicted in Florida after being found drunk and unconscious in the driver’s seat of a parked vehicle. Seven years later — still within California’s ten-year washout period — John is arrested in California after officers observe him swerving on the freeway.
Despite the prior conviction, prosecutors cannot use the Florida DUI to increase the penalties in the California case. Why? Because the conduct that led to the Florida conviction — sitting in a parked car — would not satisfy California’s requirement that the person actually drive.
Change one key fact, however, and the result changes.
If John had been stopped in Florida after driving and convicted under Florida law, that prior conviction could be used to make his California DUI a second offense, subject to enhanced penalties.
Florida Is Just One Example
Florida is not unique. Many states have DUI or DWI laws that differ in meaningful ways from California’s.
Some states criminalize being intoxicated while merely in control of a vehicle. Others use different language to define impairment. Some allow convictions without proof of actual driving.
Because of these variations, an out-of-state DUI is never automatically a valid prior in California. Each prior must be analyzed individually, based on the statute and the facts of the case.
Impairment DUI vs. BAC-Based DUI
California DUI law includes two different theories of prosecution:
- Driving while impaired, and
- Driving with a blood alcohol concentration of 0.08% or higher.
Out-of-state DUI convictions may also be based on impairment, a per se BAC violation, or both. Whether a prior qualifies can depend on which theory was used and how that state’s law defines and proves it.
Differences in testing procedures, statutory presumptions, or timing of chemical tests can all affect whether an out-of-state BAC conviction aligns with California law.
Again, the label of the offense is not enough — the underlying elements matter.
Who Has to Prove That a Prior Conviction Qualifies?
This is an important and often overlooked point.
The prosecution bears the burden of proving that an out-of-state conviction qualifies as a prior DUI under California law. That often requires producing court records, police reports, charging documents, or transcripts showing exactly what conduct led to the conviction.
If those records are unclear, incomplete, or unavailable — which is common with older cases — the prosecution may be unable to meet its burden, and the prior cannot be used for enhancement.
The Ten-Year “Washout” Period
Even if an out-of-state DUI would otherwise qualify, it must still fall within California’s ten-year lookback period. Generally, the ten years run from arrest date to arrest date.
If the prior offense occurred outside that window, it cannot be used to increase the penalties in a current California DUI case, regardless of the facts.
Why You Need a DUI Lawyer When an Out-of-State Prior Is Involved
The difference between a first and second DUI conviction in California can mean mandatory jail time, years of additional license suspension, and significantly longer DUI programs. Because of those stakes, out-of-state DUI priors should never be assumed to automatically apply.
Successfully navigating this issue requires specialized knowledge and experience. That’s where we come in.
With offices across Southern California, our firm has the experience and resources to provide a thorough, strategic defense in complex DUI cases. When an out-of-state prior is at stake, having the right lawyer can make the difference between a first-offense sentence and far harsher penalties.
Call (562) 330-4173 to discuss your case in a free consultation.
