Peter Odom
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Use of Prior Convictions/Prior Misconduct at DUI/DWI Trials

The statutes of almost all states provide for an increased penalty against a person convicted of a second or subsequent charge of drunk driving, with additional penalties ranging from higher fines to mandatory imprisonment and mandatory suspension of a person’s driver’s license. Since prior convictions are elements of the enhanced offense, they must be charged and proven by the prosecution.

Convictions following constitutionally adequate guilty pleas and guilty verdicts or findings following trials constitute prior offenses for purposes of enhancement statutes. Most courts consider a conviction and sentence imposed after a plea of nolo contendere (“no contest”) to have the same force and effect as a conviction entered after a guilty plea or after a trial.

In addition to prior convictions in the home state, a prior conviction for an offense related to driving while intoxicated (DWI) or driving under the influence (DUI) in another state is usually given full force and effect in the state of the new conviction. The only limitation upon use of a DWI/DUI conviction in another state is that the foreign offense must be substantially equivalent or a statutory counterpart to the home state’s offense.

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For purposes of enhancement statutes, a conviction includes entering into a diversion agreement in lieu of further criminal proceedings, such as an alcohol or controlled substance education, treatment, or rehabilitation program. Finally, a typical enhancement statute limits the use of prior convictions that occur only within a fixed number of years (usually 5 to 10) prior to the charge of the last offense.

In general, the existence of a prior conviction must be alleged in the charging document in order to confer jurisdiction upon a court. Moreover, the prior convictions must be proven by the prosecution according to the criminal standard, “beyond a reasonable doubt.”

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