I got a second DUI or third DUI.  What now?  Prior Offenses and Repeat DUI Offenses.  

If you got, in the last 7 years, a prior DUI or Physical Control conviction, and are now charged with DUI, you will face mandatory minimum (“enhanced”) sentencing if you are convicted of the new DUI or Physical Control charge.  This is also true – that you will face substantially greater penalties this time for your new DUI, including significantly more jail time, larger fines and considerably longer driver’s license suspension, if your prior conviction was for any reduced charge that was amended down from a DUI or if your prior DUI was a deferred prosecution (which is not a conviction, but is a prior DUI conviction equivalent).

All of this is governed by RCW 46.61.5055, a long, complex statute, called the “Alcohol and Drug Violator – Penalty Schedule,” viewable online at:  http://app.leg.wa.gov/rcw/default.aspx?cite=46.61.5055, which defines “prior offense.”  Prior offenses include a conviction within 7 years for one of the following if the original charge was a DUI or Physical Control:

DUI;

Physical Control;

Reckless Driving (if that conviction was amended from a DUI charge);

Reckless Endangerment (if that conviction was amended from a DUI charge);

Negligent Driving in the First Degree (if that conviction was amended from a DUI charge);

Deferred Prosecution (notwithstanding successful completion and dismissal without conviction 5 years after entry of your deferred prosecution order);

Vehicular Homicide or Vehicular Assault;

Operating a Commercial Motor Vehicle with THC in System;

Operation of a vessel under the influence of intoxicating liquor, marijuana, or any drug (Boating Under the Influence, aka “BUI”);

Operating an Aircraft Under the Influence;

Operating a Snowmobile Under the Influence; or

Operating a Golf Cart (or any similar non-highway vehicle) Under the Influence.

Note that prior Reckless Driving and negligent Driving charges that were not aver amended down from DUI or Physical Control are not “prior offenses” for purposes of mandatory enhanced subsequent/repeat DUI sentencing – only those that were amended down from DUI or Physical Control, whether within the last 7 years or not.  (This refers to the jail time, fines and driver’s license suspension only because a conviction of Reckless Driving or Negligent Driving in the First Degree will require you to get an Ignition Interlock Device installed on your vehicle).

Additionally, if you have several previous Reckless driving or “Neg. 1” convictions, or both, or an otherwise bad prior driving record, the prosecutor will see that and may well ask for more jail time on your new DUI.  Whether they get it from the judge at your sentencing in the face of skillful DUI defense opposing that request, or before the sentencing, after I negotiate with them and explain the weaknesses of their case against you for trial and the reasons for them not to ask for any more jail time than the mandatory minimum is another question.   Also (and obviously), if your case goes to trial and we win, there is no sentencing and your priors of course are irrelevant no matter what they were or when they occurred.  But please understand that not every case can be won at trial and that many DUI defense attorneys take, in my personal legal opinion, too many weak cases to trial when a discreet, certain outcome is possible through plea negotiation.  So, while dismissal must always be the first goal, if it is just not there to prevail at trial, your attorney should directly advise you of that reality before YOU make the decision of whether to have your case go to trial or not.  After all, it is you, not your attorney, that has to live with the final result and the sanctions imposed if you lose.  To be sure, winning at trial is wonderful, glorious and the biggest relief imaginable for a client charged by the government with a DUI or any other criminal offense.  However, losing at trial can be harsh and sometimes defendants convicted at trial feel the sentencing is punitive, too.

This area of the law is constantly changing and is confusing.  Most clients tell me they feel better after my in-depth initial consultation and case evaluation at which I try to simplify the law and apply it to their unique individual case.  It is, however, a complex legal topic so please call for a free initial consultation and case assessment.  Call me to discuss your case or to make a time to come in and go over your specific case with me and I’ll carefully and logically explain your situation, options and the best defense strategy or strategies for you.  I have developed several strategies, working with my experts, forensic psychologists, physicians and other treatment providers that will avoid jail for many clients who are appropriate for such approaches.  We’ll cover that, too, when we meet or talk by phone.

RCW 46.61.5055 defines “prior offense” as follows:

(14) Definitions. For purposes of this section and RCW 46.61.502 and 46.61.504

(a) A “prior offense” means any of the following: 

(i) A conviction for a violation of RCW 46.61.502 or an equivalent local ordinance; 

(ii) A conviction for a violation of RCW 46.61.504 or an equivalent local ordinance; 

(iii) A conviction for a violation of RCW 46.25.110 or an equivalent local ordinance; 

(iv) A conviction for a violation of RCW 79A.60.040(2) or an equivalent local ordinance; 

(v) A conviction for a violation of RCW 79A.60.040(1) or an equivalent local ordinance committed in a reckless manner if the conviction is the result of a charge that was originally filed as a violation of RCW 79A.60.040(2) or an equivalent local ordinance; 

(vi) A conviction for a violation of RCW 47.68.220 or an equivalent local ordinance committed while under the influence of intoxicating liquor or any drug; 

(vii) A conviction for a violation of RCW 47.68.220 or an equivalent local ordinance committed in a careless or reckless manner if the conviction is the result of a charge that was originally filed as a violation of RCW47.68.220 or an equivalent local ordinance while under the influence of intoxicating liquor or any drug; 

(viii) A conviction for a violation of RCW 46.09.470(2) or an equivalent local ordinance; 

(ix) A conviction for a violation of RCW 46.10.490(2) or an equivalent local ordinance; 

(x) A conviction for a violation of RCW 46.61.520 committed while under the influence of intoxicating liquor or any drug, or a conviction for a violation of RCW 46.61.520 committed in a reckless manner or with the disregard for the safety of others if the conviction is the result of a charge that was originally filed as a violation of RCW46.61.520 committed while under the influence of intoxicating liquor or any drug; 

(xi) A conviction for a violation of RCW 46.61.522 committed while under the influence of intoxicating liquor or any drug, or a conviction for a violation of RCW 46.61.522 committed in a reckless manner or with the disregard for the safety of others if the conviction is the result of a charge that was originally filed as a violation of RCW46.61.522 committed while under the influence of intoxicating liquor or any drug; 

(xii) A conviction for a violation of RCW 46.61.5249, 46.61.500, or 9A.36.050 or an equivalent local ordinance, if the conviction is the result of a charge that was originally filed as a violation of RCW 46.61.502 or 46.61.504, or an equivalent local ordinance, or of RCW 46.61.520 or 46.61.522

(xiii) An out-of-state conviction for a violation that would have been a violation of (a)(i), (ii), (x), (xi), or (xii) of this subsection if committed in this state; 

(xiv) A deferred prosecution under chapter 10.05 RCW granted in a prosecution for a violation of RCW46.61.502, 46.61.504, or an equivalent local ordinance; 

(xv) A deferred prosecution under chapter 10.05 RCW granted in a prosecution for a violation of RCW46.61.5249, or an equivalent local ordinance, if the charge under which the deferred prosecution was granted was originally filed as a violation of RCW 46.61.502 or 46.61.504, or an equivalent local ordinance, or of RCW46.61.520 or 46.61.522

(xvi) A deferred prosecution granted in another state for a violation of driving or having physical control of a vehicle while under the influence of intoxicating liquor or any drug if the out-of-state deferred prosecution is equivalent to the deferred prosecution under chapter 10.05 RCW, including a requirement that the defendant participate in a chemical dependency treatment program; or 

(xvii) A deferred sentence imposed in a prosecution for a violation of RCW 46.61.5249, 46.61.500, or 9A.36.050, or an equivalent local ordinance, if the charge under which the deferred sentence was imposed was originally filed as a violation of RCW 46.61.502 or 46.61.504, or an equivalent local ordinance, or a violation of RCW46.61.520 or 46.61.522

If a deferred prosecution is revoked based on a subsequent conviction for an offense listed in this subsection (14)(a), the subsequent conviction shall not be treated as a prior offense of the revoked deferred prosecution for the purposes of sentencing; 

(b) “Treatment” means alcohol or drug treatment approved by the department of social and health services; 

(c) “Within seven years” means that the arrest for a prior offense occurred within seven years before or after the arrest for the current offense; and 

(d) “Within ten years” means that the arrest for a prior offense occurred within ten years before or after the arrest for the current offense. 

Phillip L. Weinberg

Phillip L. Weinberg
Phillip L. Weinberg
I have more than 20 years of experience defending my clients' rights. I handle all cases personally from start to finish, ensuring that each of my clients gains the full benefit of my many years of experience. At my firm, there are no associates right out of law school showing up in court knowing practically nothing about you or your case, I know my way around the courts and how they work. Throughout my career, I have learned that the best approach is not always the most aggressive one, though sometimes there is no other choice. My first goal in every case is the dismissal of my client's charge(s). In many situations, however, I have found that negotiation offers better opportunities for success.When you work with me your case will never be passed off to a paralegal or a less-experienced associate. I am a solo practitioner and always have been.