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What is a Prior Offense?

What is a Prior Offense (for DUI purposes in Washington State)?

Here is a hypothetical many Washington State DUI Lawyers face at a consultation: A client may say, "I was arrested for DUI a couple of years ago but they gave me a Negligent Driving so this new DUI is a first offense right?" Well, the answer surprises a lot of people.  The answer is no, it is considered a prior offense, meaning you are facing significantly increased penalties if you are convicted of this new DUI and the date of arrest on the old DUI (even if amended was within 7 years of the date of arrest on this new DUI).

I'm also often asked "Since my prior DUI is outside of 7 years the judge has to give me only one day, right?" Well the answer is no! The judge has the authority to impose any sentence up to the maximum regardless of whether your prior is outside of 7 years and I have seen judges often add conditions or extra jail if it is close in time to 7 years. The 7 year period is just a legislatively imposed enhancement and the judge must impose that enhancement but can impose more if they choose. This is another reason it is important to have an experienced DUI attorney assist you with your case, especially if you have a prior offense. 

A prior offense is defined in RCW 46.61.5055 and it means any 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 amended from DUI)

Reckless Endangerment (if amended from DUI)

Negligent Driving in the First Degree (if amended from DUI)

Deferred Prosecution (even if dismissed after the 5 year period)

Vehicular Homicide

Vehicular Assault

Opertaing 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 - BUI)

Operating an Aircraft Under the Influence

Operating a Snowmobile Under the Influence

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

It is not a prior offense for enhanced sentencing purposes if your original charge was not a DUI or Physical Control and you are now facing a DUI.  For example, if you were previously charged and convicted of Negligent Driving in the First Degree and were subsequently charged with a DUI (even within a 7 year period) that Negligent Driving conviction is not considered a prior offense for sentencing purposes.

However, if your new DUI is amended to Negligent Driving in the First Degree or Reckless Driving you will face a mandatory period of time in which you will be required to install an ignition interlock device.  See, RCW 46.20.720. The IID is required even if your original charge of Neg 1 was a straight conviction and you have a new DUI reduced to Neg 1 or if you have a new conviction for Neg 1 within 7 years of the old Neg 1.  It's complicated, I know, so give us a call today to discuss (425) 522-4200.

Here is the definition of Prior Offense under the statute:

(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 or an equivalent local ordinance;

(v) A conviction for a violation of RCW 47.68.220 or an equivalent local ordinance;

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

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

(viii) 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 RCW 46.61.520 committed while under the influence of intoxicating liquor or any drug;

(ix) 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 RCW 46.61.522 committed while under the influence of intoxicating liquor or any drug;

(x) 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;

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

(xii) A deferred prosecution under chapter 10.05 RCW granted in a prosecution for a violation of RCW 46.61.502, 46.61.504, or an equivalent local ordinance;

(xiii) A deferred prosecution under chapter 10.05 RCW granted in a prosecution for a violation of RCW 46.61.5249, 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 RCW 46.61.520 or 46.61.522;

(xiv) 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

(xv) 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 RCW 46.61.520 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. 

 

 

Nathan Webb, Attorney at Law

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Nathan Webb is a Superb-rated Seattle Attorney by Avvo.com and has been repeatedly named a SuperLawyer Rising Star and recognized as a "Top Attorney" in Washington State by Seattle Met Magazine. He helps people with Auto Accident Injury claims, Social Security Disability Claims, DUI charges and civil traffic offenses throughout the Greater Seattle Metro Area

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