The facts of a recent news story from Edgewood, Delaware are repeated countless times across the United States on a daily basis: a driver is arrested for driving under the influence and is found to have been previously convicted of DUI one or more times. In the story from Delaware, a driver was arrested for his fifth DUI offense after rear-ending another vehicle. This individual, though, is not unique. Surprisingly or not, it is not uncommon for driver drivers to have been arrested and charged with their sixth, seventh, or eighth DUI offense. The record likely belongs to Allen Warner of Wisconsin, who is believed to have accumulated 15 DUI convictions in his lifetime.
Penalties Increase for Each Subsequent DUI in California
Accumulating DUI convictions is no contest or game, however. Even having one previous DUI conviction can mean higher fines and longer jail sentences, at a minimum. In California, for example, a driver with no prior convictions for DUI can expect to spend no more than six months in the local county jail and be fined no more than $1,000. If that person is convicted of a subsequent DUI within 10 years of their first, then the person could serve between 96 hours and one year in jail, not including the other conditions that a court will likely impose, which can include longer probation and an ignition interlock device (note that some counties in California require an ignition interlock device for a first-time DUI). If the driver is convicted yet again, then they can expect to serve a minimum of 120 days in jail.
Drivers who have three or more prior DUI convictions and who are arrested for a subsequent DUI may be charged with a felony DUI in California. Also, once a driver has been convicted of a felony DUI, then each subsequent DUI arrest will be charged as a felony. Felony DUIs in California may result in the imposition of a three-year prison sentence on top of fines and fees, not to mention the likely other conditions that the court will impose.
There are collateral consequences to multiple DUI convictions in California as well. One’s first DUI conviction can lead to their license being suspended for 6 months; that time can increase to one year for a second DUI conviction and three years for a third conviction. As mentioned, other conditions may be imposed, such as AA meetings, a longer DUI program, a Hospital and Morgue Program, MADD’s Victim Impact Panel, and possibly even alcohol rehab.
Prior “Convictions” in California DUI Cases
In determining how many prior convictions a driver has accumulated, the prosecution will look at the driver’s driving record and criminal history. “Convictions” include not only DUI convictions from California, but also convictions from other states for offenses that would be considered a DUI in California. In order for an out-of-state conviction to count as a “prior,” the prosecution must produce a certified record or abstract of judgment from the jurisdiction where the prior, out-of-state DUI occurred. This evidence must clearly establish that the driver’s prior out-of-state conviction resulted from the defendant actually driving under the influence. A driver who was convicted in another state for being in “actual physical control,” for example, may be found to not have a prior “conviction” for purposes of California’s DUI law because California requires that a person actually drive the vehicle.
Defending Against a DUI Charge with Prior Convictions
In light of all of this, when a person is charged with their second, third, or fourth DUI in California, a defense strategy must not only analyze the evidence of the current DUI charge but also the evidence of the alleged prior DUI convictions. By doing so, the driver may be successful in avoiding some of the more severe penalties that accompany a DUI conviction with prior offenses even if the person is still found guilty for DUI in the present case.
There are two primary ways to defend against prior convictions that are being relied upon to enhance the severity of the current DUI. The first is to demonstrate that the prior out-of-state conviction is not comparable to a California DUI and should not be considered a prior conviction. As noted above, if the out-of-state offense would not be considered a DUI if it had occurred in California. This requires more than simply looking at how the out-of-state jurisdiction titles its statutes. Whether the out-of-state offense is called Operating While Impaired (OWI), Driving While Impaired (DWI), or Operating Under the Influence (OUI) is immaterial: what matters is if the conduct involved in the prior out-of-state incident would have been considered DUI under California’s laws. This is known as the equivalency test and is found at California’s Vehicle Code Section 15023(c).
A second avenue that may be available to drivers is to attack the evidence establishing the prior DUI conviction. In order for the prior conviction to count, there must be some objective evidence that the person was, in fact, convicted of DUI or a comparable offense. Citations, charging documents, and even financial records showing that the driver paid a fine or court costs are generally not enough to meet this burden in a criminal DUI case. Instead, certified records from the court where the prior conviction occurred, showing that the person either admitted guilt or was found guilty, is necessary.
There may still be other ways to keep a prior DUI conviction from affecting your present case. For example, if the prior DUI conviction did not occur within the preceding ten years, then it may not be able to be used as a prior conviction in the present case. Similarly, a court may not consider a prior DUI in California unless that was the offense of which the driver was actually convicted. If the charge in the prior case was amended and the driver actually pled to a lesser non-DUI offense, then that prior conviction may not be used to elevate the severity of the present DUI charge. This does not apply to a conviction for a “wet reckless.” Although a wet-reckless is a charge that is reduced from a regular DUI, it typically counts as a “prior” for purposes of future DUI charges.
Experienced Legal Assistance is Always Helpful When Dealing with DUIs
As you can see, when a person suffers a California DUI after they have already suffered one can create some very technical and nuanced legal issues to be hashed out in court. A California lawyer well-versed in the state’s DUI laws is best suited to help drivers facing their second, third, or fourth (or more) DUI charge. Having legal counsel who can analyze those prior convictions may mean the difference between spending a weekend in jail or spending the next several months behind bars.
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