Motion to Strike Prior Convictions/Bifurcate Jury Trial

The skilled DUI / DWI defense lawyers at The Kavinoky Law Firm have the experience needed to use pretrial motions to the accused drunk driver's advantage in a California drinking and driving case. One motion that can be employed is a request to strike prior convictions for driving under the influence from the defendant's record.

Prior DUI / DWI convictions have a dramatic impact on every aspect of a drinking and driving case - from bail to sentencing. California has a 10-year "washout" period for driving while intoxicated convictions, meaning that if a person is arrested for drunk driving within 10 years of a prior offense, the second arrest will be charged as a multiple DUI / DWI. If that second arrest occurs more than 10 years later, then the second arrest is treated as a first offense.

Punishment for a multiple drunk driving offense can include jail sentences, large fines, attendance at mandatory alcohol education classes, and other repercussions. When someone suffers a second, third, or fourth offense within a 10-year span, the punishment exposure goes up dramatically.

Drivers are sometimes charged with a second- or third-time offender even though their previous cases are still being resolved in the courts. The California Legislature has declared that the timing of court proceedings should not impact the courts in imposing enhanced penalties for multiple offenses.

For example, a defendant may be in the midst of a second-time DUI case and get arrested for a third drunk driving offense. 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.

Because of this pitfall, a driver facing multiple unresolved DUI cases may want to consider requesting 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 DUI offense, the court must grant bifurcation if the defendant makes the request in a timely manner.

In some instances, prior driving under the influence convictions can transform a misdemeanor drunk driving charge 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 to challenge a prior conviction, the defense lawyer must be fully informed 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 cannot be used by the prosecution to seek enhanced punishment, such as those convictions that have been determined to be invalid under the U.S. Constitution. 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 per prior conviction, and the court's ruling is binding on the prosecution, the defendant, and the DMV in all future judicial and administrative proceedings. Failure to obtain the records in a timely manner may result in denial of the motion to strike or its postponement until the time of sentencing. An experienced criminal defense drunk driving attorney will employ an effective motion to strike prior convictions in an attempt to prevent past acts from increasing punishment in a California driving while intoxicated case.

A motion to strike a prior conviction 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 California lawyer experienced in defending multiple DUI / DWI cases will evaluate any prior convictions to determine whether they can be stricken from the defendant's record to avoid additional punishment.