Legal Question in DUI Law in California

I got charged with a DUI 7/29/09 2 months ago and when I went to court they were trying to charge me with a 2nd offense because of a prior DWAI driving while ability impaired from Colorado in 2004. I spoke with 2 local attorneys who both told me that the laws are different from Colorado to California and that they couldn't charge me with second offense. I need documents to back this up, and was told i could get them from, Case We the People Vs Crane. I did search on Case We the People Vs Crane and couldn't find anything pertaining to my case. Can you help, please anyone, thank you.

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Asked on 10/28/09, 10:59 am

1 Answer from Attorneys
Bruce Kapsack Kapsack and Bair - DUI Attorneys, Board Certified in DUI Defense

The District Attorney can and will charge as a second offense. The prosecution can charge anything they want, it is whether it can be proven that counts. In California in order to use an out of state offense as a prior the prosecution in California must show that the other state has (1) similar rules as to what constitutes a DUI and (2) that the other state allows for the same rights as does California.

Because I am Board Certified in DUI Defense, and a Regent in the National College for DUI Defense, I deal with these a lot. I know first hand that Colorado allows for prosecution of DUI at .05 AND that Colorado is a 'dominion and control' state where as California is a 'volitional movement' state. This means that (1) Coloradon has a lower standard of alcohol for DUI and (2) Colorado can prosecute for sitting in a parked car but California can not.

Therefore,, a good attorney can file the appropriate legal brief to disregard the Colorado prior.

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Answered on 11/02/09, 11:55 am


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