Q: I had a previous driving while ability impaired (DWAI) in New York. Would that count as a first DUI offense in Virginia?
A DWAI is considered a "traffic infraction" in NY and I wondering if it can be considered a first DUI offense in Virginia. I was just charged with a DUI in Virginia and the paperwork claims it's my second DUI within five years. If I was convicted of DWAI in NY, how could this be my second DUI offense if I have never been convicted of a DUI?
A: In Virginia, the Courts county any similarly written statute from another state as a previous offense for DUI. So if NY's DWAI is written substantially similar to VA's DUI laws, then it would be considered your second offense. However, if there is enough difference, you or your lawyer could argue that it should not be a second offense, but a first offense (and this is assuming that there are no other circumstances in your case that may lead to a different outcome such as dismissal or reduction).
Steve Miyares agrees with this answer
A: You definitely need to hire an experienced DUI attorney in VA to determine whether NY's DUI legislation is "substantially similar" (that is the test) to that of VA.
A: A second DUI conviction within 5 years would get you into minimum mandatory jail time. For this reason, it is really important for you to hire an experienced dui attorney who can obtain a copy of the NY legislation at the time you were convicted to determine whether it is "substantially similar" to VA law. If it not, you avoid the minimum mandatory jail sentence if convicted.
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