Motion to Strike Prior DUI Convictions

Alameda DUI Attorney-Michael Rehm (510) 418-0820

Available for free, confidential consultations 24/7 at (510) 418-0820


A recurring issue in DUI defense is the multiple offender with an out of state prior.  In order for an out-of-state prior to be used as a valid prior in California, the out of state statute must criminalize the same conduct.  In other words, you would have received a DUI in California if your behavior is the same. It seems a simple enough proposition and one that the district attorney would not have a hard time proving until one looks at the different statutes throughout the country. At last count, 43 states currently criminalize operating a motor vehicle. The courts have specifically ruled that there is a difference between operating a vehicle and driving a vehicle. Driving requires volitional movement of the vehicle. The vehicle has to move, no matter how slight the movement may be. Operating a vehicle requires less, it can be simply sitting in the drivers seat with keys in the ignition, exerting control of the vehicle.  California requires driving. California has one of the narrower statutes in the nation. Therefore, the district attorney has to prove that the defendant was actually driving the vehicle, if the defendant was convicted in one of the 43 states that criminalize operating.

How do they prove this? They are allowed to look at the record of the conviction, if it is still available, and nothing else. What constitutes the record? Generally it would be any abstract of judgment, any plea and waiver forms used, and the charging documents.   The police report would not be included and does not constitute the record.  Therefore it can be extremely difficult for the prosecution to prove an out-of-state prior and a potent weapon for your defense.  See the case of People v. Self for more information on this issue.  Also see Vehicle Code 23626 below that discusses out of state priors in the DUI context.


Vehicle Code 23626. Effect of Conviction in Another Jurisdiction

23626.  A conviction of an offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada that, if committed in this state, would be a violation of Section 23152 or 23153 of this code, or Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, is a conviction of Section 23152 or 23153 of this code, or Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code for the purposes of this code.


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