The good news is that the 10 year period for a prior begins to run at the time of your first arrest, not conviction, so, if your next arrest is more than 10 years later it cannot be used as a prior. The bad news is that prosecutors are often not aware of this, or worse, chose to ignore it, that is why you should not be surprised if you are charged with a DUI with a prior, but don’t worry an experienced attorney can get the issue resolved for you.
It is arrest date to arrest date, but I have had some try to use conviction dates if the arrest falls outside the 10 yr window. Be ready for that.
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The 10 year period runs from offense date to offense date, regardless of the conviction date(s). As a result, you are technically looking at a first offense under the law. However, it is very common for prosecutor's to seek additional jail time due to an out of time prior, especialy one that is so close to the 10 year period. Good luck.
Offense date to offense date. Surprisingly enough, this is not common knowledge to some Judges and prosecutors.
Vehicle code 23540 essentially states if a person is convicted of a DUI, and the "offense" occurs within 10 years of a separate "violation" that resulted in a conviction, that person shall be subject to enhanced punishment.
The language in the statute can be confusing as it uses "offense" and "violation" interchangeably. Some incorrectly argue "violation date" means the date of conviction, not offense. I have had cases where experienced prosecutors have incorrectly charged a prior on the conviction-conviction date theory. I have also had a very seasoned Judge tell me in one hearing on a motion to strike a prior, that during his entire career, he has ruled by conviction date. That motion was successful. However, if the prosecutor and the Judge have an incorrect view of the law, that would otherwise be in your favor, you should make sure you have an attorney that can obtain the proper result for you. If finances are an issue, you might want to go with a public defender at the arraignment, see how the case is charged in the complaint, obtain the discovery, and consult with a private attorney once you know what you are looking at.
Please feel free to call Attorney Peter Blair for a FREE consultation. (619) 525-7005. Law Office of Vikas Bajaj,... more
Please feel free to call Attorney Peter Blair for a FREE consultation. (619) 525-7005. Law Office of Vikas Bajaj, APC, specializing in Southern California Criminal Defense.
As answered below, it is Date of Conviction. In Michigan, this would be an OWI 1st Offense. However, you should know that some courts, depending on where the case is will still look to the prior conviction in terms of fashioning a sentence. Possibly just as important, you should also be aware, if you plead guilty to this offense, while a 1st, a future arrest and conviction will result in a possible Felony OWI charge.