A criminal charge of DUI can be elevated in the seriousness of its consequences if a district attorney is successful in charging a prior conviction. In California, a prior conviction of another DUI or a lesser charge such as a “wet reckless” (which is an alcohol-related reckless — Vehicle Code §23103.5) which occurs within 10 years of a current offense (the 10 years runs from the offense date of the prior conviction to the offense date of the current case) can emanate from a case either in California or from another state.

To constitute a prior conviction from another state, a recent decision by the Court of Appeals held that a conviction in Arizona which makes it unlawful to drive while under the influence “if impaired to the slightest degree” does not qualify as a conviction which is equivalent to California’s Vehicle Code §23152(a), which is the most common driving under the influence charge. This decision is in agreement with a 2006 Court of Appeals decision, People v. Crane, which reached a similar decision in reference to a Colorado conviction. This line of decisions is encouraged by a leading Santa Rosa DUI lawyer, a Marin DUI lawyer and a Napa DUI lawyer.

In California, a DUI requires an appreciable degree of impairment and is generally described as the inability to drive with the care and caution of a sober person. In Arizona, a DUI occurs when a person is impaired “even to the slightest degree” and, therefore, is a lesser level than that which is required in California. Since the Arizona statute is not equivalent to California’s DUI stattute, the court ruled it cannot be used as a prior conviction.

The prosecution also attempted to qualify the Arizona conviction as a prior conviction in California pursuant to the second part of the California statute, Vehicle Code §23152(b) which is our per se statute which makes it illegal to drive, regardless of the driver’s ability, with a blood alcohol concentration of .08 or higher. In the Arizona case, the charge involving the per se blood alcohol level of the defendant was dismissed and therefore did not qualify as a prior conviction.

In summary, if an individual is charged with a DUI in another state, if the opportunity presents itself to plead to the general DUI statute as opposed to the per se .08 blood alcohol concentration section of the statute, pleading to the general DUI statute which is based on various levels of the ability to drive is probably the best choice to prevent that statute from being used in California as a prior conviction. Further, it always best to have a Santa Rosa DUI attorney, a Marin DUI attorney or a Napa DUI attorney analyze an out of state conviction to determine whether or not it can be used to elevate a DUI charge in California.

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