DUI With Prior Conviction: What Constitutes A Prior Conviction

DUI Attorneys in Orange County                           

Being
arrested for a DUI is bad enough. But when you have a prior DUI
conviction on your record, it gets exponentially worse. Any experienced Orange County DUI Lawyer will tell you that while a first-offense DUI in
Orange County generally will NOT draw any jail time—if there was no child in
the car, no extremely excessive speed, and no accident—a “second offense” will
usually result in 45 to 60 days in the Orange
County jail. A prior DUI
only counts if it occurred within ten years of the present DUI. The more prior
convictions a defendant has, the worse it gets. A fourth offense within ten
years is a “wobbler”, meaning it can be charged as a misdemeanor or a felony.
However, Huntington Beach DUI Lawyers know that in Orange County a fourth
offense is almost always charged by the District Attorney as a felony and is
punishable by up to three years in the state prison.

However, not
all prior DUI convictions can be considered prior offenses for sentencing
purposes. A conviction for DUI in another state can sometimes be successfully
challenged by a skilled Santa Ana DUI Lawyer. You see, the DUI laws in other
states almost always read slightly different than the California DUI law found
at California Vehicle Code Sections 23152 (DUI) and 23153 (DUI
with injury). If it is
possible for the other state’s law to be violated without violating California’s
DUI law, then the prior out-of-state conviction cannot be considered a prior
conviction in the Orange County court.

For example,
Dan was convicted in 2013 of DUI in Nevada under a statute that made it illegal
to “operate” a motor vehicle with a blood-alcohol level of 0.08% or more. Then,
in 2014 Dan was arrested for drunk driving in Orange County. The DA at the Harbor
Justice Center alleged that Dan had a prior conviction in Nevada and therefore
wanted to punish Dan with a 60-day jail sentence. But Dan’s Irvine DUI Attorney explained to the judge that Nevada’s law made it illegal to
sit in a motor vehicle with the keys in the ignition if the person was at a
0.08%. This is different from California’s law which requires actual movement
of the vehicle before a defendant can be convicted of DUI. Since the Nevada law
could be violated by conduct that does NOT constitute a DUI in California, the
prior Nevada conviction can’t be used as a prior conviction against Dan. Even
if Dan was actually driving in Nevada when he was arrested, it doesn’t matter.
The Nevada conviction still cannot be considered a prior DUI conviction under
California law.

The term “prior
conviction” is actually misleading. The new term is “separate offense”. The
reason for the change in terms is because of a change in the law. It is no
longer necessary that the conviction of the first DUI occur BEFORE the conviction
of the second. For example, Dylan was arrested in San Clemente in November of
2013. This was Dylan’s first DUI arrest. While Dylan’s San Clemente DUI Lawyer was litigating his case in the Harbor Justice Center,
Dylan was arrested for another DUI in Huntington Beach in March of 2014. Dylan,
with the help of his Westminster DUI Lawyer immediately pled guilty to the
second DUI in the West Justice Center BEFORE the DA learned of his first arrest
for DUI. Since Dylan had no prior convictions, the Huntington Beach DUI was
treated as a first offense and Dylan go no jail time. However, when Dylan and
his Orange County DUI Attorney return to the Harbor Justice Center,
the DA has now learned of his conviction of the Huntington Beach DUI at the West
Justice Center. The DA now amends to the Complaint alleging a “separate violation”
and now treating Dylan as a second-offender. Even though the “first violation”
actually occurred AFTER the San Clemente DUI, Dylan will be sentenced as
someone with a prior DUI conviction.

If you are
charged with DUI in Orange County, call The
Law Offices of EJ Stopyro at (949)
559-5500 for a free and confidential telephonic consultation with an
experienced DUI Attorney. You can also visit our website at www.ejesquire.com. We have meeting offices
throughout Orange County but our main offices is located at 32072 Camino
Capistrano, 2^nd floor, San Juan Capistrano, CA 92675