Second DUI in California With an Out-of-State Prior Conviction

Attorney Answer

A Colorado DUI counts. If that conviction is within ten years of this offense, California treats it as a prior, and a second-offense conviction carries a mandatory minimum of 90 days in county jail.

Start with the reading. Cal. Veh. Code § 23152(b) provides that "[i]t is unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." A .082 result is above that threshold. How much above is not a defense in itself; questions about the device, the calibration records and the observation period are matters for your lawyer to examine in the discovery.

On the out-of-state prior, Cal. Veh. Code § 23626 provides that a conviction in any state that, "if committed in this state, would be a violation of Section 23152 or 23153," is a conviction of those sections for purposes of the Vehicle Code. The test is conduct equivalence — would what you did in Colorado have violated California's DUI statute — and the prosecution has to plead and prove the prior. It is not automatic, but distance does not defeat it.

If the prior qualifies and falls in the window, Cal. Veh. Code § 23540 sets the exposure: where the current § 23152 offense occurred within ten years of a separate qualifying prior that resulted in conviction, the punishment is 90 days to one year in county jail and a fine of $390 to $1,000, with the driving privilege suspended by the DMV under § 13352(a)(3) and the licence surrendered to the court under § 13550. Two details matter. The ten-year window runs from the date of the prior *offense*, not the date of the prior conviction — so pull the Colorado paperwork and check the offense date. And § 23540(b) lets the court disallow the § 13352.5 restricted licence if it finds you would present a traffic safety or public safety risk.

You have two separate cases. The breath result triggers a DMV administrative suspension proceeding that runs on its own track, with its own standard of proof, entirely apart from the criminal case. They can come out differently on the same stop, and winning one does not dispose of the other.

What you can do

1. Request the DMV hearing now, and ask for a stay of the suspension. This is the deadline closest to expiring. 2. Order the certified Colorado record of conviction — the charging document and the disposition. Under § 23626 that paperwork is what determines whether the prior counts. 3. Compare the Colorado *offense* date against the date of this offense for the § 23540 ten-year window. 4. Get the breath test paperwork: the device's calibration and maintenance logs, the operator's certification, and the observation-period notes. 5. Bring your driving record printout and the collision report to your lawyer at the first meeting. 6. Expect to surrender your licence to the court under § 13550 on a conviction, and understand that under § 23540(b) a restricted licence is not guaranteed. 7. Do not give a recorded statement about the crash to an insurer, and do not discuss it with anyone but counsel.

⏱ Time limits apply. The DMV hearing request comes first and expires fastest — typically about ten days from the date of arrest, printed on the notice you were given. It is separate from and much faster than the criminal case, and it will expire while you are waiting for your court date. The penalty provisions in Cal. Veh. Code § 23540 apply only on conviction, and how they apply depends on the dates in your specific records.