If you have a California license and picked up a DUI while traveling in another state there may be consequences for your license in this state. The Interstate Compact provides that a suspension in one state should result in a suspension in all other states.
First, understand that California has the power to impose a suspension of your license pursuant to Vehicle Code section 23626, if you sustain a conviction in any other state and that offense “would be a violation of VC23152 or VC23153.
What this means is the offense you were convicted of in the outside state must have the same elements of our DUI crime (VC23152 or VC23253).
The most frequent problem that is encountered is determining whether the out of state DUI has the same definition of “driving” when it comes to the elements of the offense. In California, “driving” means volitional movement of the vehicle. In other words, to prove “driving” in California the prosecution must prove the person actually moved the vehicle while they were in control, and at that time the person was either impaired by alcohol or at or above .08 BAC. Many other states do not share the same definition of driving.
So, if the crime of driving under the influence you were convicted of out of state involved mere “operation” or being “in control” of a motor vehicle the out of state DUI may not meet the equivalency requirement of VC 23626. Put another way, if the state where you got the DUI defines driving as simply being behind the wheel with the keys in the ignition, your out of state DUI may not qualify as a dui in California and therefore the California DMV may not have the legal authority to suspend you or use that offense as a prior conviction.
Assuming the out of state DUI meets the equivalency requirement and would be considered an offense here in California, the consequences are potentially as follows:
A first offense out of state DUI refusal could result in the completion of a 9 month alcohol program in California, in addition to any suspension term imposed. If it is simply a DUI without refusal, 6 month or 10 month suspension OR 30-day suspension with a 11 month restriction for work and classes OR 6 month IID without additional restrictions. All license reinstatements also require enrollment in an AB541 3 month alcohol program or longer depending upon blood alcohol level and proof of insurance (SR22).
Tips for out of state practitioner representing a client with a California Driver’s License:
When representing a California resident with a sister-state DUI/DWI we recommend the following when entering a guilty plea:
- Try to avoid any mention of “driving” on the record.
- Try to avoid the actual BAC or BrAC result getting on the record if it is .20 percent or higher.
- Try to avoid any chemical test refusal finding or admission.
- Advise the client that the CA DMV may take independent action on the license and require a 3, 9, or 18-month drinking driver school licensed in CA.
- Get the sister state suspension lifted as soon as possible because CA will suspend if it sees the sister state suspension and won’t reinstate until it’s lifted.
One of the biggest sources of frustration is when an out of state resident gets a DUI here and goes back to their home state and get a letter in the mail explaining their license is suspended or “cancelled” and will not be restored unless they complete an in state DUI program in California. Or another example is the person gets a DUI in California — then moves to another state where they satisfy the terms of your court ordered probation by waiting out the suspension period and compeleting an out-of-state DUI Program. They then find that regardless of whether you move back to California, no DMV in any state in the country will give you a driver’s license. The person facing a suspension can get very frustrated in trying to find out what to do.
The person has two options (1) come to California and complete the approved in person DUI classes (AB541 or greater), or (2) continue to reside out of state and request an application to terminate the action in California. So long as you live in California, California DMV will never accept completion of an alcohol class from another state. The in-person class must be taken in California even if the court accepted an out-of-state or online program in satisfaction of probation. (Note: DMV requirements and the Court probation conditions are separate.)
The “Application For Termination of Action”. California Vehicle Code 13353.5 allows the Department of Motor Vehicles (DMV) to terminate a DUI suspension or revocation for a person who is a resident of another state at the end of the suspension or revocation period. This will allow the person to apply for a license in their state of residence.
If you move out-of-state, you can call DMV Mandatory Actions Unit in Sacramento, California, at (916) 657-6525 and ask for a DL 4006 application for termination of action form or what was at one time called the “1650 waiver packet.” They will only mail this packet to the licensee at an out-of-state address (you will also have to prove you live out-of-state with a utility bill or such). The termination action removes the California hold, assuming an SR22 (DL 300) is also on file with DMV. (California Proof Requirement for Non-Resident). Once the action is terminated in CA your driving privileges can be restored in your home state. According to the DMV, you are eligible for termination of action under VC §13353.5 if all of the following applies to you:
- Any suspensions or revocations imposed against your driving privilege have concluded.
- Any Administrative Per Se (APS) restrictions are no longer in effect.
- Any court-ordered restrictions or DMV ignition interlock device (IID) restrictions are no longer in effect.
- All applicable Administrative Service fees have been paid.
Here is the link to the DMV website which contains the necessary forms and information
https://www.dmv.ca.gov/portal/driver-education-and-safety/dmv-safety-guidelines-actions/driving-under-the-influence/statewide-ignition-interlock-device-pilot-program/termination-of-action-for-out-of-state-residents/
If you come back to California within 3-years and want your license back, you will have to take the applicable in state California DUI class.
The above process is required only if you are convicted in Court for VC23152 or 23153, if you are not convicted in Court of one of these code sections but still sustained an administrative suspension due to having a .08 or higher breath or blood test, under 21 zero tolerance, or refusal, you may not need to get a 1650 waiver or worry about requesting a “termination of action” but will still be required to file an SR22, ride out the administrative suspension, which could be as long as 3 years, and pay the necessary reissue fees.
Matthew Ruff is a DUI Attorney in Los Angeles California with over 30 years experience defending clients charged with all manner of alcohol and drug related driving offenses.
