Out-of-State prior DUI may not qualify as a California prior

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California law makes it unlawful for any person who is under the influence of an alcoholic beverage or has a Blood Alcohol Content of 0.08 percent or greater to drive a vehicle. However, any sentence and suspension for a DUI violation is enhanced if the accused has a qualifying prior conviction for a DUI occurring within 10 years.

Under state law, DUI related convictions from other states may qualify as a prior conviction if the other state's statute has all the same elements as those defined as priors in California. It is possible to challenge an out of state prior based on the difference in the elements of the charges. The California Court of Appeals provides insight into the requirement of priors having the same elements in People v. George Wesley Self, 040412 CAAPP4-1 D058656.

An out-of-state prior conviction

In the Self case, a San Diego County Deputy Sheriff arrested a suspect for drunk driving. The driver was subsequently charged with a DUI with priors, one of which was an alleged Arizona prior conviction under Arizona law in 2007. The driver moved to dismiss the out of state prior Arizona conviction allegation, arguing that the offense did not constitute a qualifying prior conviction in California. The Court overruled the driver, admitting the Arizona prior conviction into evidence. Following a trial, the defendant was convicted on all counts including the prior Arizona conviction allegation. The driver appealed.

An equivalent violation?

The Court of Appeal noted that under the Arizona law under which the driver was convicted, it was unlawful for a person to drive or be in actual physical control of a vehicle while under the influence, if the person was impaired to the slightest degree. Notably, the Arizona law did not include a blood alcohol content (BAC) level, but it could be inferred that a conviction under the law indicated a BAC of less than 0.08 because other provisions of the state's law criminalized driving with specific BAC levels over that amount.

Because the Arizona law criminalized impairment "to the slightest degree," it did not contain the same elements as the California law, which required an appreciable degree of impairment. The judgment and the driver's Arizona guilty plea made it clear that he was not convicted of crimes requiring an appreciable degree of impairment because boxes on the forms referencing crimes with BAC elements of 0.08 percent or greater were not checked, and another charge of operating a vehicle with a BAC of 0.15 percent or greater was dismissed by the Arizona Court. There was no evidence in the record to support a finding the Arizona offense constituted an equivalent violation of the applicable California statute.

The Arizona prior allegation which resulted in a penalty enhancement had to be reversed. The state did not prove the driver had a qualifying prior DUI conviction in California.

Seek experienced counsel

A DUI conviction can have serious consequences and much greater penalties with prior convictions. If you are accused of DUI, it is important that you take immediate action and seek experienced counsel who knows what to do in order to achieve the best result possible in your case.

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