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Will an out-of-state DUI count as a prior DUI in California?

Under California's DUI laws, a second, third, or fourth DUI carries increasingly higher penalties. The law counts the number of DUIs within the past 10 years to determine how many prior offenses the driver has. Whether an out-of-state DUI counts as a prior offense depends on the state.

If the court considers a prior out-of-state DUI statute as “substantially similar” to California's DUI statutes, the out-of-state DUI may count as a prior offense. Even if the court does not allege a prior out-of-state DUI, the DMV may count a prior DUI in calculating the license suspension period.

A prior out-of-state drunk driving conviction can be challenged in court to reduce your penalties and reduce your license suspension period. If you are facing a California DUI with a prior DUI record from another state, contact the experienced East Bay California DUI lawyer Lynn Gorelick today.

What is a priorable offense in California drunk driving cases?

California has a 10-year lookback period for counting prior DUIs. For example, if a driver was arrested for a DUI on July 4, 2010, and later convicted, any DUI arrest before July 3, 2020, would count as a 2nd DUI.

A priorable offense for California violations includes:

  • Driving Under the Influence (Vehicle Code 23152a)
  • Driving With BAC 0.08% or Higher (Vehicle Code 23152b)
  • Wet Reckless (Vehicle Code 23103.5)*

The lookback period also includes prior drunk driving convictions in other states, if those convictions would have been considered a violation of California's DUI laws.  

*[A “dry reckless” is a plea option in some DUI cases. The benefit of a dry reckless compared to a wet reckless is the dry reckless will not count as a priorable offense for a subsequent DUI.]

Can I challenge an out-of-state DUI as a priorable offense?

You can challenge an out-of-state DUI as a priorable offense in your California DUI case. This is generally because the impaired driving statutes vary from state to state. An out-of-state DUI would only count as a priorable offense in California if it would be a DUI if it occurred in California.

Some states focus on being in “physical control” of the car or require impairment “to the slightest degree.” Depending on the situation, these DUIs that occurred in other states may not have been considered a drunk driving offense in California. However, it is up to your experienced California DUI defense lawyer to challenge the out-of-state convictions and show that they are not priorable offenses in your current case.  

Can the DMV extend my license suspension for a prior drunk driving conviction in another state?

The DMV license suspension process is separate from the criminal process. When the DMV learns of a DUI arrest or conviction, they may impose a license suspension. The license suspension period is based on the number of prior offenses.

DUI Offenses

DMV License Suspension

1st Offense

6 Months

2nd Offense (Within 10 Years)

2 Years

3rd Offense (Within 10 Years)

3 Years

The driver will then have to complete the steps required to reinstate their driver's license. A driver may also be able to get an ignition interlock device (IID) installed to get their driving privileges back immediately without having to wait out the suspension period.

Can I fight the DMV license suspension for a prior offense in another state?

Drivers with a prior offense in another state can also challenge whether that offense is priorable in California. Drivers generally have to request an administrative hearing to challenge the automatic license suspension. However, you only have 10 days to request a DMV hearing to challenge the license suspension after a California DUI arrest. Failing to file a formal request within the time period effectively waives your rights to challenge the initial suspension.

Similar to challenging a prior offense in the criminal case, your experienced DUI lawyer can challenge the use of a prior out-of-state drunk driving conviction as a priorable offense. Talk to your California criminal defense attorney about your case and make sure you file your DMV APS hearing request in time.

How does the DMV find out about an impaired driving arrest in another state?

California and most other states share information as part of the Interstate Driver's License Compact (IDLC). Under the IDLC, states can transmit information about traffic offenses, drunk driving arrests, criminal charges, convictions, and license suspensions to other states, including in California.

DUI Defense by East Bay Criminal Defense Lawyer

East Bay attorney Lynn Gorelick has more than 30 years of DUI experience and understands the difficulties of dealing with criminal charges in multiple states. If you are facing criminal charges for a DUI in the East Bay and have a prior drunk driving charge in another state, contact California DUI lawyer Lynn Gorelick today.

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