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The defense lawyers at King, Campbell, Poretz PLLC have defended numerous 2nd or subsequent offense DUI charges where defendants face enhanced punishment upon conviction.[1]  While many factual defenses to these more serious DUI charges are the same as a standard 1st offense DUI, these cases must be carefully handled to attempt to avoid the enhanced penalties.

DUI Defense in Alexandria, Northern Virginia

The original court documents from any prior offense that can be used to enhance a defendant’s penalties should be obtained in every case and carefully scrutinized.  On a number of occasions, our lawyers have been able to raise challenges to prior offenses based on inadequately documented prior offenses.  For example, in the case of Mwangi v. Commonwealth, we successfully argued that an unsigned prior DUI conviction (which the judge had failed to sign) was not a final conviction, which resulted in the reversal of the defendant’s third offense DUI conviction.

DUI Reduction to a Misdemeanor

In another third offense felony DUI case, due to an unsigned prior offense, we obtained a reduction to a misdemeanor even though there appeared to be limited factual defenses to the DUI itself.

DUI Dismissal

In yet another, we determined that one of the offenses enhancing the matter to a felony was just outside the 10-year look-back period—upon successfully filing a motion to reduce the charge, we then obtained a complete dismissal on the grounds that the defendant was unconstitutionally stopped by the police officer.

However, the reduction of the offense to a misdemeanor was critical because it empowered the defendant to challenge the apparent unconstitutional stop of her vehicle.  We have also made constitutional and other technical challenges to prior offenses, which often aid in obtaining a better result for our clients.

Out-of-state DUI and Second or Subsequent Offense in Virginia

Out-of-state DUI offenses can also be used to enhance a Virginia DUI to a second or subsequent offense. We have successfully challenged the use of prior offenses from other states as not substantially similar to Virginia law and therefore ineligible to enhance the Virginia offense.

This takes a close reading of the out-of-state statutes and sometimes law to develop and highlight differences between the other state’s law and Virginia law.

Cox v. Commonwealth and Prior DUIs

That is, if another state’s DUI law “permits convictions for acts which could not be the basis for [DUI]convictions under Code § 18.2-266,” the out-of-state DUI cannot be used to enhance a Virginia offense.  See Cox v. Commonwealth, 13 Va.App. 328, 329 (Va. App., 1991)(holding West Virginia DUI ordinance not substantially similar where it “permits convictions for acts which could not be the basis for convictions under” Virginia law; ordinance allowed for conviction if one knowingly permitted another to drive one’s vehicle under the influence of alcohol).

Corley v. Commonwealth and DUIs under the Code of Federal Regulations

Prior federal DUIs obtained under the Code of Federal Regulations can also be subject to attack—we successfully knocked our a federal prior in a Fairfax County case because federal law is not substantially similar to Virginia law “[b]ecause the federal drunk-driving regulation permits a conviction for conduct that would not result in a conviction under Code §18.2-266.”  See Corley v. Commonwealth, Record No. 0421-02-4 (Va. App. 2003) at 4-7.

A prior federal DUI obtained under the CFR also can be attacked because it is a petty offense (maximum penalty 6 months or less) that does not permit the defendant a right to trial by jury—a Virginia defendant faces up to one year in jail for a DUI and has a right to trial by jury.

DUI Case Note

[1] While a first offense DUI often results in no active jail time upon conviction, a second offense DUI committed within 10 years, while still a class 1 misdemeanor, carries a 10 day mandatory minimum jail sentence.  A second DUI offense committed within 5 years (also a class 1 misdemeanor) carries a 20 day mandatory minimum jail sentence.   There are additional penalties if a second offense is committed while the defendant has an elevated BAC—a BAC of .15 or higher carries an additional 10 mandatory days and a BAC of .21 or higher carries an additional 20 mandatory days.  The license suspension term for a second offense is significant—three years with restricted driving privileges available after 4 months if the offense was committed within 10 years and 1 year if the second offense was committed within 5 years of a first offense.  Ignition interlock is required upon the issuance of a restricted license after a second offense DUI.

A third or fourth offense DUI offense in Virginia is a class 6 felony (maximum penalty of 5 years in prison). Va. Code §18.2-266/270.  A third offense within 10 years carries a 90 day mandatory minimum jail sentence.   If the third offense is committed with 5 years, it carries a 6 month mandatory minimum jail sentence.  A fourth offense DUI committed within 10 years of the prior offenses is also a class 6 felony that carries a 1 year mandatory minimum.  A defendant’s license, upon being convicted of a felony DUI, is indefinitely revoked and can only be reinstated upon judicial order after a minimum suspension period of 5 years and the fulfillment of other conditions.  A person may be eligible, under certain conditions, to obtain a restricted license upon conviction of a felony DUI after a period of 3 years.  See Virginia Code §46.2-391 et seq. out-of-state or federal DUI conviction within the last 10 years.

Defending a 2nd or Subsequent Offence DUIs