Out-of-State Priors


Generally, if someone suffers a California DUI conviction and within 10 years suffers another in California, the prosecution will use the first conviction to enhance the penalties of any subsequent convictions. However, if you have an out-of-state prior DUI charge or driving while intoxicated (DWI), as it is commonly referred to in some states, and you are arrested in California on suspicion of DUI, the prior may or may not be used as an enhancement against you.

The out-of-state prior offense may only be used as a prior for purposes of enhancing a subsequent California conviction if the conduct of the person that substantiates the out-of-state conviction meets the elements of a California DUI charge.

For example, the Florida statute for DUI states in pertinent 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 within this state and…[t]he person is under the influence of alcoholic beverages…when affected to the extent that the person’s normal faculties are impaired…”

This statute is different than California’s in two ways, the first of which is a difference in the level of impairment required for a conviction. California requires an appreciable degree of impairment. This is a higher standard than Florida’s “to the extent that the person’s normal faculties are impaired” standard. In other words, a person may be deemed “impaired” by Florida’s standard yet deemed not impaired under California’s standard.

The second difference is that Florida is a “dominion and control state.” Florida’s statute requires only that someone have dominion and control over the vehicle. Someone can have dominion and control over a vehicle by merely sitting in the driver’s seat. California, on the other hand, requires volitional movement of the vehicle. This means that California requires that someone voluntarily and actually drive the vehicle. Again, someone may be convicted under Florida’s statute by sitting in the vehicle while intoxicated, whereas in California they would not. Thus, if someone was convicted in Florida for sitting in their car while intoxicated, that conviction may not be used in California as a prior for purposes of enhancements.

Given the ramifications of having a prior DUI conviction when someone is charged for a present DUI, one would be remiss if they did not look into whether an out-of-state conviction qualifies as a California DUI prior.

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