DUI prior time excluded while defendant in jail
In a South Dakota DUI case, South Dakota v. Powers, decided on December 10, 2008, the Supreme Court of South Dakota held that Mr. Power’s prior DUI conviction which was outside of 10 years could lawfully be used for sentence enhancement purposes because during the intervening period he was incarcerated. In South Dakota, the time you spend in jail or prison for a DUI does not count towards the 10 year look-back period.
From the opinion:
The second sentence of SDCL 32-23-4.1 plainly states that the ten-year period excludes any period of incarceration for a prior violation of SDCL 32-23-1. This language does not require that the period of incarceration must relate to the oldest violation. Instead, the language requires the exclusion of any period of incarceration for any violation of SDCL 32-23-1. Therefore, Powers's twenty-one month incarceration for the 2002-2003 convictions was correctly excluded from the calculation, and the 1996 conviction was properly considered in determining the number of Powers's prior convictions.
Analysis:
In DUI cases throughout the country, the look-back period during which prior convictions may be used to enhance a current sentence is trending upwards. My prediction is that within the next decade, some states will adopt a lifetime look-back period even for misdemeanor DUI convictions.
Prosecutors, judges and most of the public take the stance that if you get one DUI it could be an accident or a fluke. However, most people should learn their lesson after a single DUI arrest.
In this case, Mr. Powers was on his fifth DUI arrest. There are not many judges in the country (heck, there aren’t many DUI defense lawyers) that feel that a 5-time DUI defendant should be given a break. South Dakota’s exclusion of incarceration for calculation of the look-back period is novel, but it makes sense in many respects.
As DUI sentences grow longer and longer (some states, like Arizona, incarcerate people for 45 days or more on some first offense DUI cases), people are released from jail with much less to lose. Having already lost jobs and potentially more while they are in jail or prison, they are more likely to repeat. That’s a fact. The look-back period is meant as a deterrent, and there is nothing to deter while the person is serving time.
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