CAN I MOVE TO ANOTHER STATE? by Jon Scott Fox   April 2009

One of the little known consequences of a DUI conviction is that it can actually prevent you from moving to another state. The Interstate Compact for Adult Offender Supervision (ICAOS) was adopted in Washington state on April 16, 2001. This law was initially intended to ensure that any person convicted of a felony, who moves to another state, would be required to remain on supervision in the new state. However, in 2005 the law was expanded to apply to any individual who is convicted of a second offense DUI within his or her lifetime. Beyond this, the commission implementing the interstate compact has interpreted these provisions to include as a "second offense DUI" a deferred prosecution where the individual has a prior DUI offense. This is curious in that a deferred prosecution never becomes a conviction, if successfully completed. See ICAOS Advisory Opinion 6-2005.

In ICAOS Advisory Opinion 7-2006, the advisory committee defined what constitutes a "second or subsequent" DUI offense. Whereas in Washington State, our DUI laws essentially permit a judge to sentence an individual as a "first offense DUI" if the second incident occurred more than seven years from the arrest date on the first incident, ICAOS does not recognize any "washout" provisions. Thus, ICAOS is deemed to apply to an individual who has a current DUI conviction and who has a prior DUI conviction.

The law is detailed in RCW 9.94A.745 and associated statutes. Most of us presume that as citizens we have the constitutional right to move freely and relocate between the states as we see fit. That is true except in the case of a second offense DUI conviction and the ICAO. The following rather harsh language is taken from article 1 of the compact as adopted by Washington State: "(d) The compacting states recognize that there is no "right" of any offender to live in another state." This is one of the little known consequences of a second offense DUI conviction.

Under the Compact, a person convicted of a second offense DUI is not permitted to move to another state unless the following eligibility requirements are met:

1. The applicant is in substantial compliance with court obligations;
2. The applicant is a resident of the receiving State, or there is a family member in the receiving State with whom the applicant will reside; and
3. The applicant has employment in the resident state or a verifiable means of support.

An application for transfer under ICAOS may be viewed here and the 2008 ICAOS Rules may be viewed here.

The ICAOS 2008 Rules provide the legal definition of terms as used in the Compact:

"Resident" means a person who-

1. has continuously inhabited a state for at least one year prior to the commission of the offense for which the offender is under supervision; and
2. intends that such State shall be the person's principal state of residence, and
3. has not, unless incarcerated, remained in another state or states for a continuous period of six months or more with the intent to establish a new principal place of residence.

"Resident family" means a parent, grandparent, aunt, uncle, child, adult siblings, spouses, legal guardian, or step parent who-

1. has resided in the receiving State for 180 days or longer as of the date of the transfer request; and
2. indicates willingness and ability to assist the offender as specified in the plan of supervision.

An application for transfer to another state under ICAOS is submitted to the probation department that is monitoring the citizen convicted of the second offense (or more) DUI, along with an application fee. If the probation department denies the application, the applicant may bring the matter before a district court judge for review.

The procedures discussed here is do not eliminate temporary travel to another state; the intention of the Compact regarding second offense (or more) DUI convictions is to ensure that an individual who moves to another state will be adequately supervised in the other state, and that these arrangements are made before the individual moves. The Interstate Compact on Adult Supervision is geared towards people who intend to "relocate" and this term is defined in ICAOS Rule 1.101: "Relocate means to remain in another state for more than 45 consecutive days in any 12 month period." Therefore, it appears that temporary business trips to another state are not prohibited under the ICAOS rules, and this is specifically discussed in a recent ICAOS Advisory Opinion.

It must be said that the Compact, while well-intentioned and certainly good public policy for individuals convicted of felonies, is overkill in the case of an individual convicted of DUI, who at some time, perhaps even 20 years earlier, was previously convicted of DUI. However, the Compact itself represents the current legislative trend with respect to Washington state's DUI laws: a person convicted of a misdemeanor DUI offense will often suffer restrictions on his or her liberty that are equal to, and sometimes more onerous than, the restrictions that would be placed upon an individual convicted of a serious felony.

And now a disclaimer: The Compact is a myriad of rules and regulations, supplemented by Advisory Opinions that regulate the relocation of individuals subject to its provisions. This article only briefly outlines the provisions of the Compact and subsequent amendments to the Compact or court interpretations may change the accuracy of the information presented here. Don't rely upon this article as legal advice. Instead speak with a competent Washington State DUI attorney who is familiar with the act and who is willing to work closely with you to accomplish relocation.