A second DUI offense: how a prior conviction changes the license case and the criminal case

A DUI charge is treated as a second offense when the law of the state bringing the charge counts an earlier offense as a prior. That turns on what the earlier offense was, where it happened, how it was resolved and when it occurred.

Each state defines these terms in its own statutes. Arizona's A.R.S. § 28-1387, for example, provides that an order of a juvenile court adjudicating a person delinquent is equivalent to a conviction for the purposes of that article. It also allows the allegation of a prior conviction for an act in another jurisdiction that would violate the Arizona sections it lists if committed in Arizona. Arizona's A.R.S. § 28-1382 provides that a second violation under that section does not include a conviction for an offense arising out of the same series of acts.

Texas takes its own approach. Tex. Penal Code § 49.09 provides that, for the offenses that subsection names, a person is considered to have been convicted if the person was placed on deferred adjudication community supervision for the offense. Its definition of an offense relating to operating a motor vehicle while intoxicated also includes offenses under the laws of another state that prohibit operating a motor vehicle while intoxicated.

The license consequences of a second offense run through a channel separate from the criminal case. The named state's statute decides which agency acts, what triggers it and what it does.

In Arizona, the license provisions in this guide are triggered by a conviction. A.R.S. § 28-3304 provides that the department shall immediately revoke a driver's license on receipt of a record of conviction, if the conviction is final, including a conviction or forfeiture of bail not vacated on a second charge under the Arizona sections it lists, among them A.R.S. § 28-1382, within the period the statute specifies. It covers the same situation where the driver was convicted within that period of a comparable offense in another jurisdiction. For a repeat extreme-DUI conviction, A.R.S. § 28-1382 provides that, on receipt of the court's report, the department shall revoke the driving privilege and require a certified ignition interlock device on any motor vehicle the person operates.

North Carolina's N.C. Gen. Stat. § 20-36 limits what the Division may consider. Apart from the commercial-vehicle and commercial-license exceptions it lists, it provides that no conviction of another motor vehicle law violation shall be considered in deciding whether to suspend or revoke, or for how long, once the period it specifies has elapsed from the date of that conviction.

Some statutes provide for limited driving during a revocation or suspension, under conditions. Whether that is available, and on what terms, comes from the specific state's law.

Arizona's A.R.S. § 28-1382 provides that, after completing a stated portion of the revocation period, a person whose driving privilege is revoked for a violation of that section and who is sentenced under its repeat-offense subsection is eligible for a special ignition interlock restricted driver license under a separate section of Arizona law. That eligibility is tied to the statute's own conditions.

Texas law handles a petition for an occupational driver's license through the courts. Tex. Transp. Code § 521.243 provides that, unless the petition is dismissed under a separate section, the clerk of the court shall send the attorney representing the state a copy of the petition and notice of the hearing if the petitioner's license was suspended, revoked or canceled following a conviction for one of the Penal Code offenses the section lists. A person who receives that notice may attend the hearing and present evidence for or against granting the petition. Whether a petition is granted is a matter for the court.

In the criminal court case, a prior conviction can change the grade of the offense, the minimum sentence the court must impose and the conditions attached to it. How it does so is set by the statute of the state bringing the charge.

Tex. Penal Code § 49.09 provides that a listed intoxication offense is a Class A misdemeanor with a minimum term of confinement if it is shown on the trial of the offense that the person has previously been convicted of an offense relating to operating a motor vehicle while intoxicated. Additional prior convictions, or a particular kind of prior, can make the offense a felony under the same section; that is covered in the guide to when a DUI becomes a felony.

Arizona's A.R.S. § 28-1382 sets out separate mandatory consequences for an extreme-DUI conviction where a qualifying prior falls within the statute's period, including jail, fines, assessments, community restitution and a traffic survival school course. Arizona's A.R.S. § 28-1387 also provides that if a person has previously been ordered to complete an alcohol or other drug screening, education or treatment program under that section, the judge shall order the person to complete such a program unless the court determines that alternative sanctions are more appropriate.

A prior does not enter a case automatically. Arizona's A.R.S. § 28-1387 provides that the court shall allow the allegation of a prior conviction or other pending charge filed a stated time before the case is actually tried, and may allow one filed later if the state makes available to the defendant a copy of any information obtained concerning it. Tex. Penal Code § 49.09 frames its enhancements around what is shown on the trial of the offense.

The lookback period is the window within which a prior counts, and its starting point differs among the named statutes. Arizona's A.R.S. § 28-1382 provides that the dates of the commission of the offense are the determining factor, irrespective of the sequence in which the offenses were committed, and A.R.S. § 28-3304 directs the department to use the date of commission. North Carolina's N.C. Gen. Stat. § 20-36 instead measures from the date of the earlier conviction.

Tex. Penal Code § 49.09 applies its ignition interlock subsection only to a second or subsequent offense committed within a period measured from the date the most recent preceding offense was committed. Where it applies, the court shall order a device installed on each motor vehicle the defendant owns or operates.

A commercial driver's license can add reporting duties. Ohio Rev. Code § 4506.18 provides that a driver holding an Ohio commercial driver's license who is convicted in another state or a foreign jurisdiction of violating a law or ordinance relating to motor vehicle traffic control, other than a parking violation, shall give written notice of that conviction to the bureau of motor vehicles and to the driver's employer within the period the statute sets. Violating that section is itself a misdemeanor. Ohio Rev. Code § 4506.21 separately requires the registrar of motor vehicles to notify the licensing authority in the holder's home jurisdiction after a final judgment of conviction of an out-of-state commercial license holder, and provides that a judgment is not final until the clerk enters it into the court journal.

Driving during a suspension or revocation raises its own issue. North Carolina's N.C. Gen. Stat. § 20-28.1 provides that, on notice of conviction of a motor vehicle moving offense committed while the driving privilege was suspended or revoked, the Division shall revoke the privilege for an additional period, with longer periods for later such revocations, subject to the exclusions the section lists. It also provides that a person may later apply for a license and that the Division may impose restrictions or conditions for the balance of the revocation period.

The statutes in this guide show how much turns on a particular state's text: what counts as a prior, which date starts the lookback, which agency or court acts on the license, and how a prior enters the criminal case. None of that can be read from a general description.

A lawyer licensed in the state where the charge is pending can explain how that state's law treats a specific record. Legal figures, such as the length of a lookback or a revocation, are not stated in this guide; they belong to each state's own law, and state-specific information is collected on the state pages.

• Whether an earlier conviction, juvenile adjudication, deferred adjudication or out-of-state offense counts as a prior under that state's law.
• Which date the state's lookback period is measured from, and whether a particular prior falls within it.
• What triggers the license consequences, which agency or court acts, and whether any restricted driving is available.
• How a prior must be alleged or proven in the criminal case.
• Whether a commercial driver's license creates separate reporting duties.

Deadlines, limits and penalty ranges are set by each state’s statutes, so this page does not state them. Each state page shows them with the official source and the date they were verified — or says plainly that a figure has not been confirmed yet.