Does a NY DWAI Count as a Prior Offense of DUI in PA?
Posted in DUI on July 25, 2025
Case Background: Commonwealth v. Pombo
Yes. In Commonwealth v. Pombo, the defendant was convicted in Pike County of DUI (controlled substance) and driving while his license was suspended due to a prior DUI. At sentencing, the Commonwealth sought to apply Pennsylvania’s mandatory minimum penalties for a third offense DUI, citing Pombo’s two prior New York convictions:
2007 conviction for Driving While Ability Impaired (DWAI)
2008 conviction for Driving While Intoxicated (DWI)
The trial court, however, only counted the 2008 DWI, treating the DWAI as too dissimilar to Pennsylvania’s DUI statute. As a result, Pombo was sentenced as a second-time DUI offender, which carried a lighter minimum sentence of 90 days in jail. The Commonwealth appealed, arguing that both prior convictions should have been counted.
The Superior Court’s Ruling: “Substantially Similar” Is Enough
The Superior Court disagreed with the trial court’s approach and explained that Pennsylvania’s DUI sentencing law changed in 2004. Under the new law (75 Pa.C.S. § 3806), a prior offense includes not just prior Pennsylvania DUIs but also those from other states that are “substantially similar” to Pennsylvania’s law. This is a lower threshold than the previous requirement, which only counted out-of-state offenses that were “equivalent” to Pennsylvania’s.
The court relied heavily on the Pennsylvania Supreme Court’s earlier decision in Wroblewski v. Commonwealth, which held that New York’s DWAI is substantially similar to a Pennsylvania DUI for license suspension purposes. The Superior Court applied the same logic to sentencing and concluded that New York’s DWAI conviction should be treated as a prior DUI offense under Pennsylvania law.
Why This Case Matters
This decision has major implications for anyone with out-of-state alcohol or drug-related driving offenses, especially from states like New York, where there are multiple levels of impaired driving offenses (DWAI, DWI, Aggravated DWI). New York DWAI convictions can count as prior offenses for DUI sentencing in Pennsylvania. Courts will look at whether the prior offense is “substantially similar” to Pennsylvania DUI—not whether it’s identical.
Facing a DUI in Pennsylvania With Prior Out-of-State Convictions?
If you’ve been charged with DUI in Pennsylvania and have a prior conviction in another state—especially New York—it is critical to have an experienced DUI defense lawyer who understands how out-of-state offenses are treated under Pennsylvania law.
At our firm, we fight to ensure that the law is applied correctly and that your rights are protected. Whether you’re looking to challenge the classification of a prior offense or reduce your exposure to mandatory jail time, we can help.
For a free case review, contact JD Law by email or leave a message at (814) 689-9139. Email is the preferred method of communication, as phone calls are directed to voicemail due to the high volume of spam and unsolicited calls.