Prior
convictions, which are better termed
enhancements for separate offenses, stay on
your record for ten years or more, and can
be charged for seven to ten years from the
time of the first offense to the time of the
second offense.
With
current DUI's, we can get the records on any
separate or prior conviction, and it is
possible in some circumstances to have those
stricken from your present case, or even
stricken or vacated from your driving record
al together as though they never took place.
This requires
a fairly complex procedure of getting the
records from the prior jurisdiction and
reviewed for various procedural and
constitutional defects. Further care should
be taken in doing this, because if you
happen to be on probation in the prior
jurisdiction, the attempt to get the prior
records will "tip off" the prior
jurisdiction that you have a new DUI, and
may result in a violation of probation on
the first case, in addition to the current
problems. So, such action should be taken
only by an experienced lawyer.
Often prior convictions, if they cannot be
vacated or stricken, can be deleted for
purposes of sentencing and fines, as can
probation violations, failures to appear,
and other types of violations and the
savings in fines alone may more than pay
your attorney's fees. A collateral attack of
a prior conviction is not an appeal of that
conviction; it is simply a mechanism for
defense attorneys to use to prevent the
prior conviction from enhancing the
penalties the clients faces in the current
case.
For example,
if you, the defense attorney, are
representing a person charged with fifth
offense (a felony), and you discover the
client did not have an attorney or waive
counsel in his fourth offense case, he
should be sentenced as a fourth offense
misdemeanant, as opposed to a fifth offense
felon. The conviction for fourth offense
will remain on his record, but it cannot be
used for sentencing purposes if it is
properly challenged.
If prior dui
convictions exist, we can challenge them. A
prior conviction must have met due process
requirements. The rights to counsel, jury
trial and confrontation must have been
fulfilled or have been knowingly and
understandingly waived. In cases where prior
conviction resulted from a guilty plea, the
waiver of rights is often not adequate. If
the defendant is pardoned, he or she may not
receive an enhancement at sentencing when
convicted for another DUI.
Prior convictions can complicate your
situation and an experienced attorney can
help navigate you to the best outcome.
If you or
someone you care about has been charged with
a felony, and has a prior criminal record,
it is critical to consult with a skilled
criminal defense attorney right away. Call
The Sheena Law Firm today to discuss your
case.
