Does a Maryland DUI Count as a Prior Conviction for Virginia?

If you’re charged with a second offense DWI / DUI in Virginia, the Commonwealth has the burden of proving the prior offense. If that prior DUI is from Maryland, the Commonwealth will also have to prove that it is “substantially similar” to a Virginia DUI.

This is a critical issue that could make a big difference in your case. Knocking out the prior offense saves two years loss of your Virginia license, and it can save you from substantial jail time.

Is a Maryland DUI substantially similar to a Virginia DUI?

Yes, no, maybe.

Is that a clear enough answer for you?

Whether or not your Maryland prior DUI counts will depend upon a lot of facts that are unique to your case. The main issue is what specific Maryland statute you were convicted under.

If you were convicted of “per se” DUI in Maryland (Maryland Transportation Code § 21-902(a)(2)), then we have a strong argument to knock out the prior offense. U.S. v. Thomas found that the Maryland “per se” code section isn’t substantially similar to Virginia DUI, because the Maryland statute isn’t concerned with the alcohol content at the time of the vehicle operation.

But if you were convicted of general DUI in Maryland, there are some Virginia cases that side for the Commonwealth and conclude that the Maryland prior WOULD be similar enough to be a prior in Virginia.

What about a conviction of “driving while impaired” in Maryland? Will that count as a prior DUI for a Virginia case? I would argue that it’s not, since the Maryland cases explain that “driving while impaired” is a lesser degree than “driving under the influence.” And the Virginia DUI statute only prohibits driving while impaired if it impacts the defendant’s ability to drive safely.

Call me today to discuss your prior DUI and whether or not we might be able to knock it out at trial.

Photo by: JohnONolan

Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then, I have earned over 600 5-star reviews from happy clients on Google, Yelp, and Facebook. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

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