Generally speaking, they are fairly rare, but because we are kind of a destination place, especially in the winter, we do tend to get a lot of people from colder locales like Illinois and Colorado and we tend to get a lot of people moving here from California, so it is absolutely possible. I’ve had three new DUI cases in the last month in which people have come in with out-of-state prior convictions. It is not as simple as saying they have one there, so this is their second; it takes research and it knowing exactly what to look for; the interesting thing is, prosecutors seem to fight the defense lawyers on it.
The prosecutors don’t necessarily care that it doesn’t translate, even though that’s what the law says; all they know is, if someone has a prior conviction, they look at the facts and will sometimes ask the judge to only look at the facts, even though case law is perfectly clear and the judge cannot do that. In the last two cases I dealt with who had prior DUI convictions from another state, the prosecutor fought me on it and no matter how many times I explain the law and show them it’s crystal clear, they fight me.
They just say they believe that they can prove it when it’s crystal clear they can’t. I’m in the middle of a case right now in which I may be filing a motion asking that the prosecutor pay my client’s attorney’s fees because it is so crystal clear and I may be asking the court to order sanctions against the prosecutor for improperly fighting me on something that is so obvious.
What Are the Common Reasons for an Out-of-State DUI?
It’s the same reason anyone gets a DUI; they made a mistake and they either took responsibility for it or went to trial and were convicted. Different states have different laws, although right now being above a 0.08 blood alcohol content (BAC) is pretty universal. Most states have a DUI law based on having a BAC at or above a 0.08 tested within two hours of driving, although other aspects are not as clear; they’re not universal. What I am dealing with right now is a case in which the person was previously convicted of DUI in Illinois, which distinguishes someone who is under the influence of alcohol as compared to someone who is under the influence of alcohol and is impaired to the slightest degree. They make that distinction, while Arizona does not.
New Hampshire has attempted DUI, which Arizona is still trying to figure out; we have attempted DUI, but it’s a new idea out here; it’s something that I actually touched on at a seminar a couple of months back; I was trying to explain to defense attorneys that attempted DUI is an actual thing, something we should be fighting for if it helps our clients. People stopped thinking about attempted DUI decades ago because of a certain case that came out that seemed to give the indication that there was no such thing as an attempted misdemeanor DUI, but times have changed.
Now that the laws have changed, we have this ability to argue to the jury for attempted DUI if we feel it’s in our client’s best interest, but just because they technically have a prior DUI conviction from another state does not mean it translates to Arizona law.
If Someone Has a First Time Out-of-State DUI, Is it Better than Having One in their Own State?
Some states’ laws can be harsher. Realistically, if an Arizona resident is charged with DUI in another state, it’s unlikely they need an Arizona attorney. I talked to someone last week who was very concerned with that exact situation; at some point the Arizona Motor Vehicle Division will probably find out they have been arrested and possibly convicted in another state and they will probably suspend the person’s license because of that, but Arizona won’t inflict any sort of punishment.
We won’t apply fines and fees, or require counseling or ignition interlock device; that person will have to follow the laws of the other state. If an Arizona resident goes to California and they are charged with and convicted of DUI, California law will prevail as far as jail time, fines and fees, counseling, ignition interlock device; they may have to do some of those things in Arizona, like install the ignition interlock device, do the counseling or do the jail time, but Arizona itself won’t punish them other than possibly suspending their license once they find out that there is a conviction from another state.
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