In every State, the punishment for a conviction of Driving Under the Influence of drugs or alcohol (DUI) is enhanced if the person has one or more prior DUI convictions. In most cases, the State can look back up to 10 years to see if there is a conviction on your record within that time period. What many people do not know is that a conviction in one State will usually count as a prior DUI in another State, but there are exceptions. So, when can a prior DUI be used in another State?
Language of the Statute
The first test to see if the prior conviction can be used is to look at the language of the DUI statute in the State where the prior DUI occurred. If the language of the DUI laws are identical in both States, then the conviction can be used. This used to be a big issue when the prohibited blood alcohol level was not the same in each State. For example, let’s say a person had a prior DUI conviction in Tennessee where the prohibited blood alcohol content (BAC) was .08% or higher. If that person was arrested for DUI in another State where the prohibited BAC was .10%, then the California prior could not be used. This example doesn’t really apply anymore because all States now have .08% as the limit for DUI’s, but it used to be a big issue. However, there is another common difference may keep a prior DUI from being used.
Some states prohibit both driving and/or “being in physical control” of a vehicle while impaired. In such a State, one could be arrested for DUI if found driving while impaired, and they could also be arrested if they were found behind the wheel of a parked car while impaired. In the latter example, even though they were not driving, they still had physical control of the vehicle. Other States, like California for example, only prohibit driving while being impaired.
So, if a person was prosecuted in California for DUI, and they had a prior from Utah (a “physical control” State), the Utah prior may not count because the law is not the same. However, the facts that supported the DUI may allow it to still be used.
Even in cases where the language of the law differs between states, a DUI prior may still be used if there is sufficient evidence from the “record of conviction.” Basically, the Prosecutor would have to prove that the facts that supported the out of state DUI would have also constituted a DUI in this State if the offense had been committed here. But, to prove this, the Prosecutor is limited to the facts as contained in “the record of conviction.” (ROC). The ROC consists of things like the Complaint, the sentencing Minute Order, Transcript of the Plea, etc. It does not, however, include the police report. So, let’s say the Prosecutor orders a certified copy of the ROC from the prior jurisdiction, and when he/she gets it, there is nothing in the record that indicates whether the DUI was for driving, or simply being behind the wheel of a parked car. In California, that conviction could not be used.
There are many scenarios in which a prior DUI conviction can be used, but there are also several instances in which it cannot. If you have a prior DUI conviction from another State, it is always a good idea to seek advice from a legal professional to make sure you do not plead to something you are not guilty of.