Criminal Defense Blog NYC

Prior Out-of-Country DUI Convictions

Posted by Bruce Yerman on December 30, 2017

 

Out of Country DWI vs. Out of State DWI

Prior out-of-country DUI convictions should not count as prior DUI convictions in New York.

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This is significant because in New York State, a person with one or more prior DUI convictions in the past 10 years can be charged with felony DUI rather than misdemeanor DUI, under Section 1193(1)(c) of the Vehicle and Traffic Law:

(c) Felony offenses. (i) A person who operates a vehicle (A) in violation of subdivision two, two-a, three, four or four-a of section eleven hundred ninety-two of this article after having been convicted of a violation of subdivision two, two-a, three, four or four-a of such section or of vehicular assault in the second or first degree, as defined, respectively, in sections 120.03 and 120.04 and aggravated vehicular assault as defined in section 120.04-a of the penal law or of vehicular manslaughter in the second or first degree, as defined, respectively, in sections 125.12 and 125.13 and aggravated vehicular homicide as defined in section 125.14 of such law, within the preceding ten years, or (B) in violation of paragraph (b) of subdivision two-a of section eleven hundred ninety-two of this article shall be guilty of a class E felony, and shall be punished by a fine of not less than one thousand dollars nor more than five thousand dollars or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment.

(ii) A person who operates a vehicle in violation of subdivision two, two-a, three, four or four-a of section eleven hundred ninety-two of this article after having been convicted of a violation of subdivision two, two-a, three, four or four-a of such section or of vehicular assault in the second or first degree, as defined, respectively, in sections 120.03 and 120.04 and aggravated vehicular assault as defined in section 120.04-a of the penal law or of vehicular manslaughter in the second or first degree, as defined, respectively, in sections 125.12 and 125.13 and aggravated vehicular homicide as defined in section 125.14 of such law, twice within the preceding ten years, shall be guilty of a class D felony, and shall be punished by a fine of not less than two thousand dollars nor more than ten thousand dollars or by a period of imprisonment as provided in the penal law, or by both such fine and imprisonment.

An E-felony DUI conviction is punishable by a maximum of 4 years in prison.  A D-felony DUI conviction is punishable by a maximum of 7 years in prison.  A regular misdemeanor DUI conviction is punishable by a maximum of 1 year in jail.  Clearly, a lot is at stake depending on whether an out-of-country DUI can elevate a New York DUI charge to a felony.

Without question, an “out-of-state” DUI can elevate a New York DUI conviction to a felony.  Section 1192(8) of the Vehicle and Traffic Law concerns treatment of out-of-state convictions, for purposes of upgrading a DUI to a felony:

8. Effect of prior out-of-state conviction. A prior out-of-state conviction for operating a motor vehicle while under the influence of alcohol or drugs shall be deemed to be a prior conviction of a violation of this section for purposes of determining penalties imposed under this section or for purposes of any administrative action required to be taken pursuant to subdivision two of section eleven hundred ninety-three of this article; provided, however, that such conduct, had it occurred in this state, would have constituted a misdemeanor or felony violation of any of the provisions of this section. Provided, however, that if such conduct, had it occurred in this state, would have constituted a violation of any provisions of this section which are not misdemeanor or felony offenses, then such conduct shall be deemed to be a prior conviction of a violation of subdivision one of this section for purposes of determining penalties imposed under this section or for purposes of any administrative action required to be taken pursuant to subdivision two of section eleven hundred ninety-three of this article.

The question is whether the phrase “out-of-state” includes “out-of-country”.  On first blush, the answer might appear to be yes: Canada, for example, is outside the U.S. (out of country), but it’s also outside New York State (out of state).

As of the date of this blog entry, no published cases in New York address this issue. However, there is a strong argument to be made against such an interpretation: several New York statutes use the phrase “out-of-state or out-of-country”, tending to indicate that “out-of-state” describes the territory between the New York State border and the US border, but not beyond; there would never be a need to use the phrase “out-of-state or out-of-country” if the phrase “out-of-state” included territory outside the US border.

Constitutional arguments also support such a conclusion.

Ordinarily, the District Attorney and the Court would not be aware of an out-of-country DUI conviction, as out-of-country convictions do not appear on New York rap sheets.  However, sometimes defendants confess such information while in police custody.  As always, “Never speak with police” is the best advice.

Although it shouldn’t elevate misdemeanor DUI to felony DUI, if the District Attorney becomes aware of an out-of-country DUI, there’s a substantial likelihood you won’t be treated as a first-timer if you’re arrested for DUI in New York.

Regardless whether the DA wants to treat you more harshly due to an out-of-country DWI conviction, out-of-country convictions should not elevate a New York DUI charge to a felony.


Bruce Yerman is a New York City criminal defense attorney.  If you'd like to discuss DUI charges, contact Bruce for a free consultation:

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Topics: DUI