In Texas, if you have been convicted of drunk driving twice before, the third offense will be charged as felony DWI. But what if one or both of those prior convictions were in another state? Could Texas use those out-of-state convictions to charge you with a felony?
The answer is that it may depend on which state those prior convictions were in. The Texas Penal Code says you can be charged with a third-degree felony if you were previously convicted in another state "if the offense contains elements that are substantially similar to the elements" of intoxication manslaughter in Texas. In the adjoining section, the Code says you can also be charged with a third-degree felony if you've been convicted "two times of any other offense relating to the operating of a motor vehicle while intoxicated," but doesn't say whether convictions in other states count.
However, as a recent case in the Nebraska Supreme Court illustrates, the question of whether the drunk driving statute in the other state is substantially equivalent to ours is important. General principles of criminal jurisprudence are likely to require the prior convictions to be based on the same elements and evidence that would be required here.
In the Nebraska case, a Lincoln man had just been convicted of his fourth DUI offense, and under that state's law it is the fourth conviction that results in a felony-level sentencing enhancement. However, one of his prior convictions was for a Colorado offense called "driving while ability impaired" or DWAI.
In Colorado, DWAI is not as serious as DUI (driving with a blood alcohol level of .08 or higher). A DWAI charge is brought when police believe a person's driving was impaired by alcohol, but not as seriously. Generally, a blood alcohol level of between .05 and .08, along with other evidence of impairment, can result in a DWAI conviction. In fact, under Colorado's DWAI law, you can be convicted if your ability to drive is affected "to the slightest degree" by alcohol.
The Nebraska Supreme Court found that a Colorado DWAI conviction was not equivalent to a DUI conviction in Nebraska -- and it certainly isn't as serious as a DWI conviction in Texas.
Just as important in this particular case, the defendant had pled guilty to the DWAI. Prosecutors had tried to introduce evidence that he had been more than slightly impaired on that occasion but, since the man had pled guilty, those allegations had never been proven beyond a reasonable doubt.
"The theoretical possibility that a defendant's conviction for DWAI could have satisfied the Nebraska elements for DUI is not enough," wrote the court. "The prior out-of-state conviction must be for the offense of DUI."
If you've been arrested for DWI in Texas and have prior drunk driving convictions here or in other states, don't take chances. Call a lawyer right away to make sure you understand your rights.
Source: Lincoln Journal Star, "Court: Colorado case can't count toward Lincoln DUI sentence," Associated Press, Jan. 25, 2013