Does an Out-of-State DUI Count as a Prior DUI?

Does a prior out-of-state DUI count when adding up the number of DUI convictions a person has? And what are the penalties for a conviction?

By , Attorney (George Mason University Law School)

Every state has laws that increase the penalties for driving under the influence of alcohol or drugs when a person has prior DUI convictions. But what if the prior convictions occurred in another state? This article explains how prior out-of-state DUI convictions can affect the penalties you'll face for a subsequent impaired driving offense.

How Do Prior Convictions Affect the Consequences of Subsequent DUI Offenses?

All states structure DUI penalties around the number of prior convictions. The consequences of a DUI generally get more serious with each additional prior. In other words, the penalties for a second offense are more severe than those for a first offense, the penalties for a third offense are more severe than those for a second offense, and so on.

In the next few sections, we discuss some of the specifics, including when prior convictions might not count against you.

How Prior DUI Convictions Bring More Serious Penalties

Generally, state DUI laws specify the minimum and maximum penalties—such as jail time, fines, and license conditions—for a DUI conviction. The severity of these penalty ranges and conditions depends primarily on the number of prior convictions.

For instance, a state might not have mandatory jail time for a for a first DUI, but its laws might impose a 10-day mandatory jail sentence for a second offense and longer mandatory sentences for third and subsequent offenses. Having prior DUI convictions might also result in:

  • higher minimum and maximum fines
  • longer license suspension periods
  • mandatory ignition interlock device conditions, and
  • the current offense being elevated to a felony conviction. (DUIs usually aren't felonies until the third or fourth conviction, but some states classify a second DUI as a felony.)

But these are just some of the possible ways prior convictions can affect DUI sentencing. The specifics of DUI laws differ by state.

Be Aware of "Washout Periods" for Prior DUI Convictions

Most states have "washout" periods (also called "lookback" periods) for prior DUI convictions. In these states, DUIs that are older than the washout period won't count as prior DUI convictions for increasing mandatory sentencing on a new DUI charge. In many states, the washout period is 7 or 10 years.

However, if you have a DUI conviction from 20 or 30 years ago, don't assume it can't come back to bite you. A handful of states don't have washout periods. In states without washout periods, past DUI convictions—potentially including convictions from other states—will always count as priors.

Do Prior DUIs Transfer From State to State?

Most states generally count out-of-state DUIs as prior convictions. However, there's one common caveat to this general rule: the DUI laws in both states must be substantially similar. In other words, the two states (the state where the prior took place and the state of the current offense) must define "driving under the influence" in substantially the same way.

Basically, the "substantially similar" rule aims to count out-of-state DUI convictions only if the same conduct could have led to an in-state DUI conviction. Put differently, an out-of-state DUI generally won't count if it's easier to convict a person under the other state's DUI laws.

States Might Have Different BAC Levels

Two DUI laws might not be considered substantially similar if they have different blood alcohol concentration (BAC) requirements.

In almost every state it's illegal to drive with a BAC of .08% or more (called a "per se DUI"). But in Utah, you can be convicted of a DUI with a BAC of .05% or more. So, if you're charged with a DUI in your home state and your only prior is from Utah, you'll likely be facing first-DUI penalties if your state requires substantial similarity. The prior probably won't count because the lower BAC threshold makes it easier to be convicted of a DUI in Utah than in your state.

Another place differing BAC levels can come into play is with underage DUI laws. All states have underage DUI laws, but the BAC thresholds to be convicted of an underage DUI vary by state. In many states, it's illegal for underage drivers to drive with a BAC of .02% or more. But other states use underage BAC levels of .01%, .03%, or any measurable amount of alcohol. If the prior underage DUI from another state had a lower BAC threshold than your current DUI charge, the out-of-state prior probably won't count against you.

States Have Different Definitions of "Under the Influence" and "Intoxication"

As previously noted, all states have BAC levels that correspond to per se DUI charges. But the DUI laws of all states also allow prosecutors to prove a DUI charge with evidence of actual driver impairment.

State laws have different definitions of "impairment," "under the influence," and "intoxication." One state might require that the prosecution prove only the slightest degree of impairment. But another state might require proof that alcohol or drugs actually affected a driver's ability to operate a vehicle. The state that requires proof that the ability to drive was affected likely will not count a DUI prior from a state that requires only the slightest degree of impairment.

States Have Different Requirements for Proving the "Operation" or "Driving" Element of a DUI

A DUI conviction requires more than a BAC or impaired driver. The prosecution must also prove the person operated or drove a motor vehicle (or a non-motorized vehicle in some states). Believe it or not, the "driving" element for a DUI conviction isn't the same in every state.

In some states, you can be convicted of DUI without ever putting the vehicle into drive. Some of these states require only operation—such as merely turning the engine on. Other states require only actual physical control—like having the keys in your pocket and sitting in the driver's seat.

DUI convictions involving operation or physical control often happen when people decide to "sleep it off" in the driver's seat of a car after a night of drinking. If they turn the car on to stay warm, a DUI conviction is possible in states requiring operation. If they don't turn the engine on, they still could be convicted in states requiring actual physical control.

But many other states require that you put the vehicle into motion to be convicted of DUI. These states might not count a prior DUI from a state where operation or physical control is all that's needed to convict.

Talk to a DUI Attorney

Because it can be difficult to know whether a prior DUI will count against you, it's normally a good idea to have a lawyer when you have a prior DUI conviction and are facing a DUI charge. A qualified DUI attorney can review your case, make sure your rights are protected, and help you decide on the best course of action.

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