An attorney who specializes in defending drunk driving cases typically makes one or more pretrial motions before taking the case to trial. One such motion is a request to strike prior convictions for DUI / DWI from the defendant’s record.
Prior convictions can have a dramatic impact on every aspect of a drinking and driving case from bail to sentencing. In California, there is a 10-year “washout” period regarding Driving Under the Influence convictions, meaning that if a person is arrested for a DUI offense within ten years of a prior offense, the second drunk driving arrest will be charged as a second-offense DUI. If that second arrest occurs more than ten years later, then the second arrest is simply another first-time DUI.
Possible punishments for multiple DUIs include jail sentences, large fines, attendance at mandatory alcohol education classes, and other punishments which restrict the ability to drive. When someone suffers a second, third, or fourth offense within a ten-year span, the punishment exposure goes up dramatically.
Some drivers have even been charged as a second- or third-time offender even though their previous cases have not been resolved. The California legislature has declared that the timing of court proceedings should not affect the ability of the court to impose enhanced penalties for multiple offenses.
For example, a defendant may be in the midst of a second-time DUI case, which can sometimes take several months to conclude. If, during that time, the driver is arrested for a third DUI offense, then the court in the third case can sentence the defendant as a third-time drunk driver, even though the defendant has not been convicted as a second-time DUI driver. The only hard and fast rule is that the offenses occur within a 10-year span.
One option for a driver facing multiple unresolved DUI cases is to request a bifurcated trial. This is where a prior is tried separately from, and after, the DUI charges. Because prior convictions are enhancements and not elements of the Driving Under the Influence offense, the court must grant bifurcation on the defendant’s request. A bifurcation motion must be brought in a timely manner to be considered.
In some instances, what would otherwise be a misdemeanor will instead turn into a felony, with the possibility that the judge in the case will impose time in state prison. That is why it is critical that a skilled DUI attorney analyze any prior convictions to determine the best defense.
Before deciding whether a challenge should be made, defense counsel must obtain information about the prior conviction. This is usually achieved by a written request from the convicting court. The type of documentation the court will usually provide includes minute orders, the defendant’s written waiver of constitutional rights, and possibly transcripts of prior plea proceedings.
Some prior convictions are not allowed to be used by the prosecutor to seek enhanced punishment. For example, those convictions that have been determined to be invalid under the U.S. Constitution cannot be used for enhancement purposes. Juvenile convictions also cannot be used for enhancement purposes.
Crimes that qualify as prior crimes include the common DUI charge (California Vehicle Code Section 23152, DUI with injury (VC 23153), “wet reckless” (VC 23103.5), out-of-state DUI convictions (VC 23626), federal DUI convictions (VC 13352d), Boating under the Influence (Harbors and Navigation Code Section 655), and those DUI convictions that have been dismissed per Penal Code Section 1203.4 (the expungement provision).
Only one constitutional challenge is allowed on a prior conviction, and the court’s ruling is binding on the prosecution, the defendant, and the Department of Motor Vehicles (DMV) in all future judicial and administrative proceedings. The failure to obtain records in a timely fashion may result in denial of the motion to strike or its postponement until the time of sentencing. An experienced criminal defense drunk driving attorney can ensure that a motion to strike prior convictions is effective, and prevent past acts from increasing DUI punishment.
The procedure to strike a prior conviction and the hearing on the motion is based on a written motion and must state the specific constitutional rights the defendant is alleging will be violated by the prior conviction being used to enhance punishment. For example, the defendant can assert that the prior guilty plea was not voluntarily and intelligently offered.
A lawyer experienced in defending multiple DUI / DWI cases can evaluate prior charges and determine whether they can be stricken from the defendant’s record to avoid additional punishment.