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Bench Book - 3.2.1.6.3 What Constitutes Second and Subsequent Conviction of Driving While Impaired?

Particular attention should be paid to offenders convicted of a second or subsequent offense of driving while impaired (DUI and DWI offenses). Because various states’ laws differ widely on what constitutes a second or subsequent conviction, the Commission has issued ICAOS Advisory Opinions to clarify the application of the ICAOS to such offenders. Thus, even if the sentencing court deems a second or subsequent conviction to be a “first conviction” for sentencing purposes, the Commission considers the actual number of convictions not the manner in which the conviction may be treated for sentencing purposes by individual state laws. An offender convicted of a second or subsequent offense but sentenced as a first-time offender is nevertheless an offender subject to the ICAOS. See ICAOS Advisory Opinion 7-2006.