If a person suffers a California DUI conviction, any subsequent California DUI conviction within a ten year period carries with it an increased punishment.
Generally a first-time California DUI conviction carries three to five years of summary (informal) probation, up to six months in jail, between $390 and $1,000 in fines, completion of a court-approved three month DUI program, and a six-month license suspension.
A second-time California DUI conviction carries three to five years of summary probation, a minimum of 96 hours to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court-approved 18 month DUI program, and a two-year license suspension.
A third-time California DUI conviction carries three to five years of summary probation, a minimum of 120 days to a maximum of one year in county jail, between $390 and $1,000 in fines, completion of a court approved 30-month DUI program, and a three-year license revocation.
What if someone suffers, say, a Florida DUI conviction in 2007 and then gets arrested this year in California for DUI? Can the Florida conviction be used to increase the punishment in the California DUI conviction?
As the answer is with many legal questions: It depends.
It depends on whether the conduct that led to the Florida conviction (or any out-of-state conviction) meets the elements of a California DUI charge.
In Florida, the DUI statute reads:
“A person is guilty of the offense of driving under the influence… if the person is driving or in actual physical control of a vehicle within this state and…[t]he person is under the influence of alcoholic beverages…when affected to the extent that the person’s normal faculties are impaired…”
Florida’s statute requires that a person impaired “to the extent that the person’s normal faculties are impaired.” This standard is less strict than California. California requires that a person be impaired to an appreciable degree. Thus, a person may be deemed impaired under Florida’s standard, but not necessarily under California’s.
Florida’s statute also requires that someone drives or is “in actual physical control of a vehicle.” This makes Florida what is called a “dominion and control state.” A person can have dominion and control over a vehicle by simply being in the driver’s seat. California’s DUI law, on the other hand, requires that a person actually drive the vehicle. Therefore, a person can be convicted under Florida’s DUI law by sitting in the driver’s seat while intoxicated. However, someone sitting in the driver’s seat while intoxicated cannot be convicted under California’s DUI law.
Let’s put this into context as it relates to whether an out-of-state prior can be used to increase the punishment in a California DUI case.
In 2007, John Doe is arrested and convicted in Florida under Florida’s DUI law because he was drunk and unconscious in the driver’s seat of a parked vehicle. Seven years later (and within the 10 year “washout period”) in 2014, John Doe is arrested in California under California’s DUI law when he is spotted swerving on the highway by law enforcement.
Prosecutors will be unable to use John Doe’s Florida conviction to increase the penalties in his California case because the facts which gave rise to the Florida conviction would not meet the elements of California’s DUI law because California requires that a person actual drive the car.
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