I had a Neg 1 a few years ago so this new DUI is my first offense...not so fast!

Many times I will be asked the question, "I had a DUI arrest a few years ago, but it was dropped to a Reckless Driving, so this new DUI is a first offense right?" Well, the answer may surprise many because it is no!  This new DUI is a second offense even though you were not convicted of the original DUI.

It is a second offense in this scenario because the person was previously charged with a DUI and it was amended to one of the crimes which are considered "prior offenses" under the statute (RCW 46.61.5055 (14)).

What that means is the old DUI reduced to Reckless Driving or Negligent Driving counts against them if they are convicted of this new DUI.  A new conviction will significantly increase the DUI penalties one may face (even if the original charge of DUI was amended to one of the prior offenses, if it was within 7 years from or after the date of the original arrest, it will count against them).

A prior offense means a conviction within seven years for one of the following crimes if the original charge was a DUI or Physical Control:

• A previous conviction for a DUI
• A previous conviction for Physical Control
• A previous conviction for Reckless Driving (if amended down from DUI or Physical Control)
• A previous conviction for Reckless Endangerment (if amended down from DUI or Physical Control)
• A previous conviction for Negligent Driving in the First Degree (if amended down from DUI or Physical Control)
• A completed Deferred Prosecution (even if it was dismissed after 5 years per statute)
• A previous conviction for Vehicular Homicide
• A previous conviction for Vehicular Assault
• A previous conviction for Opertaing a Commercial Motor Vehicle with THC in System
• A previous conviction for Operation of a vessel under the influence of intoxicating liquor, marijuana, or any drug (Boating Under the Influence - BUI)
• A previous conviction for Operating an Aircraft Under the Influence
• A previous conviction for Operating a Snowmobile Under the Influence
• A previous conviction for Operating any non-highway vehicle Under the Influence - Golf Cart, ATV, etc.

If your original charge was Reckless Driving, Reckless Endangerment or Negligent Driving in the in the First Degree and you were convicted, it does not count as a prior offense, only if it was originally charged as a DUI or Physical Control and amended down within or after 7 years from the date of arrest.

For example, if you were previously convicted of Reckless Driving and were then charged with a DUI, that Reckless Driving conviction does not increase sentencing penalties under the statute.

Another issue to note is that if you had a previous DUI within 7 years and were charged with a new DUI that was then amended down to Reckless Driving, Reckless Endangerment or Negligent Driving in the First Degree, that new conviction does not require any enhanced penalties but it would be considered a prior offense for any new DUI and if a Reckless Driving or Negligent Driving you would be subjected to a mandatory imposition of 6 months of Ignition Interlock. See RCW 46.20.720.

Figuring out what a prior offense is can be a difficult task and your Seattle DUI Lawyer needs to know how to apply any past convcitions or to make sure that something is not considered a prior offense when being sentenced for any DUI.
We are your Seattle DUI Attorneys and know all there is to know about DUI charges in Washington State so give us a call today to discuss your DUI or Physical Control case (425) 398-4323 or (844) DUI-GONE.
 

Read about Prior Offenses

Negligent driving conviction with a prior means 6 more months of IID (no matter if the 2nd was originally a DUI)!

Recently the legislature enacted changes to many DUI laws in our state and I wanted to note one in particular in which there is much confusion, Negligent Driving in the First Degree.  This statute holds that, among other things, anyone who is convicted of Negligent Driving in the First Degree with a "prior" must install an ignition interlock on their vehicle for an additional 6 months (see subsection (4) below):

  (1)(a) A person is guilty of negligent driving in the first degree if he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property, and exhibits the effects of having consumed liquor or marijuana or any drug or exhibits the effects of having inhaled or ingested any chemical, whether or not a legal substance, for its intoxicating or hallucinatory effects.

     (b) It is an affirmative defense to negligent driving in the first degree by means of exhibiting the effects of having consumed any drug that must be proved by the defendant by a preponderance of the evidence, that the driver has a valid prescription for the drug consumed, and has been consuming it according to the prescription directions and warnings.

     (c) Negligent driving in the first degree is a misdemeanor.

     (2) For the purposes of this section:

     (a) "Negligent" means the failure to exercise ordinary care, and is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or the failure to do something that a reasonably careful person would do under the same or similar circumstances.

     (b) "Exhibiting the effects of having consumed liquor, marijuana, or any drug" means that a person has the odor of liquor, marijuana, or any drug on his or her breath, or that by speech, manner, appearance, behavior, lack of coordination, or otherwise exhibits that he or she has consumed liquor, marijuana, or any drug, and either:

     (i) Is in possession of or in close proximity to a container that has or recently had liquor, marijuana, or any drug in it; or

     (ii) Is shown by other evidence to have recently consumed liquor, marijuana, or any drug.

     (c) "Exhibiting the effects of having inhaled or ingested any chemical, whether or not a legal substance, for its intoxicating or hallucinatory effects" means that a person by speech, manner, appearance, behavior, or lack of coordination or otherwise exhibits that he or she has inhaled or ingested a chemical and either:

     (i) Is in possession of the canister or container from which the chemical came; or

     (ii) Is shown by other evidence to have recently inhaled or ingested a chemical for its intoxicating or hallucinatory effects.

     (3) Any act prohibited by this section that also constitutes a crime under any other law of this state may be the basis of prosecution under such other law notwithstanding that it may also be the basis for prosecution under this section.

     (4) A person convicted of negligent driving in the first degree who has one or more prior offenses as defined in RCW 46.61.5055(14) within seven years shall be required, under RCW 46.20.720, to install an ignition interlock device on all vehicles operated by the person.

This subsection (4) now requires drivers who are convicted of a new Negligent Driving in the First Degree to install an ignition interlock device (for 6 months).  What many DUI attorneys have been mistakenly informing their clients is that only if the second/subsequent DUI is reduced to Neg 1 will they be required to install an IID.  Well, unfortunately, that is false information.  The Department of Licensing (DOL) will require anyone who has a prior offense as outlined in RCW 46.61.5055 who is convicted of a new Neg 1, whether it was originally charged as a DUI or Physical Control, to install the IID.  That means if someone is arrested for Neg 1 for say a .03 BAC, has a prior offense and pleads guilty, they will require an IID for 6 additional months.  This is the DOL's position!

Now, if a person has a prior, then picks up a new DUI which is reduced to Reckless Driving, they will have to have an IID for 6 additional months, but not if they were only charged with Reckless Driving (i.e., not amended down from DUI or Physical Control).  The lesson is, if you have a new Neg 1, even if it is not amended down, you are facing an additional 6 months of IID, regardless of any breath test! 

If you have been arrested for a DUI, Physical Control, Negligent Driving in the First Degree, Reckless Driving or other offense, call me, Nate Webb, your Seattle DUI attorney for a free consultation. (425) 398-4323

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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com