Challenging Prior DUII Convictions

This wikilog article is a draft, it was not published yet.

by: Eder.ben • June 30, 2011 • no comments

When someone is charged with felony driving under the influence of intoxicants, it is very important to challenge the prior DUII convictions. If your client was convicted of DUII or its statutory counterpart, it does not mean that the conviction is valid. This post is meant to be a guide for challenging DUII convictions that the state intends to use to enhance a misdemeanor DUII to a felony. There is no down side to challenging prior convictions because if the convictions are deemed valid by the court, you can stipulate to their admissibility to keep the priors out of the jury trial under ORS 813.326. The State has to accept your stipulation prior to trial.

Under 813.328, the defense must give notice of the intent to challenge the validity of the prior convictions at least seven days prior to the first date set for trial on the felony charge. You should file this notice in every felony DUII case. Order the prior convictions to examine the plea petition and court transcripts/records. It is also important to speak with your client regarding the prior convictions because they can help us determine the court procedure when records have been destroyed. This guide will walk you through the steps to make sure you that have done everything you can to try and invalidate a prior conviction.

OUTLINE

1. Order the prior convictions, including the audio and written records.
2. Examine the convictions to see if they are in fact DUII convictions or if they are statutory counterparts.
3. Send notice to the prosecutor at least 7 days in advance to the first trial setting that you intend to challenge the priors. Make sure you stipulate to the previous convictions before trial if a Judge determines the convictions are valid prior to trial.
4. Did your client plea without counsel? If yes, then was there a valid waiver of counsel?
5. If you client pled with or without counsel, then examine the record to determine if the plea was valid. The record should be examined in every felony DUII.

LEGAL ANALYSIS

After sending notice to the state that you intend to challenge the predicate offenses and you have ordered the court records, check to make sure the prior DUII conviction from another state is a statutory counterpart to Oregon's DUII statute.

• Was the burden of proof the same in that state as Oregon's standards?
• Was it actually a DUII conviction?
• Was it a diversion or a deferred sentence?
• Is the conviction under the other jurisdiction's general DUII statute or a lesser included offense?

The next step is to determine if your client pled to a DUII while appearing pro- se. Under State v. Probst, 339 Or 612, (2005), a lack of counsel is relevant but not dispositive when contesting prior convictions. The defendant has the burden to point to some evidence from her own testimony or otherwise tending to show that the absence of counsel resulted in an involuntary plea.

If the client pled without counsel the first inquiry is whether or not there was a valid waiver after knowing the dangers of self representation. If a defendant wishes to waive counsel, the Court has the obligation to make sure the waiver is a knowing and voluntary waiver of counsel. See ORS 135.045(c). A defendant must be advised that she can have counsel and the dangers of self-representation for the waiver to be valid. State v. McKenzie, 195 Or App 318 (2004). A trial court should engage in a colloquy with the defendant to make sure she understands the charge and the risks associated with acting without counsel. Under State v. Culver, 98 Or App 267 (2005), the Court held that if the record does not indicate that the waiver of counsel was knowingly made, the invalid waiver results in prejudice and the conviction is vacated. If you are dealing with an out of state prior conviction, it is important to determine that the other state has the same right to counsel as Oregon.

Speak with your client about their prior conviction.

• Did the lawyer explain how the case could be defended?
• Did they have an opportunity to see the state's evidence?
• Did they have a right to counsel?

If the records have been destroyed, your client's testimony will be important to challenge the conviction. If your client was advised of the dangers of self representation, the next question is whether or not the plea was valid. This analysis is the same for a pro se or plea with counsel. Review the court records to determine if the plea is valid. The key is understanding Federal Rule 11. Boykin v. Alabama, 395 U.S. 238, 89 S Ct 1709 (1969), and McCarthy v. U.S., 394 U.S. 459, 89 S Ct 1166 (1969), set forth what procedural safeguards must be followed when a defendant enters a guilty plea to a criminal charge. If these procedures are not followed, the guilty plea is invalid and may not be used to enhance defendant's punishment, see U.S. v. Tucker, 404 U.S. 443, 92 S Ct 589 (1972), or as proof of an element of the offense, McCarthy v. U.S., 394 U.S. 459, 89 S Ct 1166 (1969):

"We agree with petitioner that the District Judge did not comply with Rule 11 in this case; and in reversing the Court of Appeals, we hold that a defendant is entitled to plead anew if a United States district court accepts his guilty plea without fully adhering to the procedure provided for in Rule 11."

Stelts v. State of Oregon, 299 Or 252 (1985), analyzed these Supreme Court decisions regarding the procedure for obtaining guilty pleas and their validity as it applies to state criminal convictions. The Supreme Court stated not only that the federal rules and procedures for obtaining guilty pleas apply to the states via the Fourteenth Amendment to the U.S. Constitution, but also said that ORS 135.385 sets out the constitutionally acceptable procedure for obtaining a conviction pursuant to a guilty plea.

"In November, 1972, the Criminal Law Revision Commission submitted to the Legislative Assembly its final draft and report on the 'proposed criminal procedure code'. As we have noted many times, the work of the commission is a valuable source of legislative history. See, for example, State v. Garcia, 288 Or 413, 416, 605 P2d 671 (1980). At pages 154 and 155, the commentary to the section that has been codified as ORS 135.385 states that the section is based on Boykin v. Alabama. The commentary further makes it clear that the section is also based on McCarthy v. United States. We conclude that ORS 135.385 was intended to lead a trial court through a catechism that would ensure that a defendant's waiver is a constitutionally valid plea of guilty." Stelts v. State, supra, at 258-9.

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"In Boykin v. Alabama, supra, the court, while noting that in McCarthy it had been concerned with the duty of a federal judge under Rule 11, held that federal constitutional rights are involved in a state criminal trial: 'The question of an effective waiver of a federal constitutional right in a proceeding is, of course, governed by federal standards. Douglas v. Alabama, 380 U.S. 415 422'" Stelts v. State, supra, at 260.

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"The court went on to hold that 'prejudice inheres in a failure to comply with Rule 11 [of the Federal Rules of Criminal Procedure]" Stelts v. State, supra at 260.

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"The dissenters in Boykin appraised the effect of the decision as follows: 'The Court thus in effect fastens upon the States, as a matter of federal constitutional law, the rigid prophylactic requirements of Rule 11 of the Federal Rules of Criminal Procedure.' The majority did not disavow that characterization of the effect of its opinion." Stelts v. State, supra, at 260.

The thrust of the Oregon Supreme Court interpreting the Fourteenth Amendment as it applies to the procedure in accepting guilty pleas is that if Rule 11 of the Federal Rules of Criminal Procedure or ORS 135.385 is not scrupulously followed, the guilty plea is invalid. If the plea is invalid, it may not be used to enhance punishment or as proof of an element of the offense.

Boykin, (where the Supreme Court determined the validity of a state court guilty plea),McCarthy v. U. S. and Stelts v. State, supra, all hold that in order for a guilty plea to be constitutionally valid, the procedure in taking the plea must comply with Rule 11 of the Federal Rules of Criminal Procedure.

The procedure set out in Rule 11 of the Federal Rules of Criminal Procedure is as follows:

"(b) Considering and Accepting a Guilty or Nolo Contendere Plea.

1. Advising and Questioning the Defendant. Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath and the court must address the defendant personally in open court. During this address, the court must inform the defendant of and determine that the defendant understands the following:

• (A) the government's right in a prosecution for perjury or false statement to use against the defendant any statement that the defendant gives under oath;
• (B) the right to plead not guilty, or having already so pleaded, to persist in that plea;
• (C) the right to a jury trial;
• (D) the right to be represented by counsel - and if necessary have the court appoint counsel - at trial and at every other stage of the proceedings.
• (E) the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self incrimination, to testify and present evidence and to compel the attendance of witnesses;
• (F) the defendant's waiver of these trial rights if the court accepts a plea of guilty or nolo contendere;
• (G) the nature of each charge to which the defendant is pleading;
• (H) any maximum possible penalty, including imprisonment, fine and term of supervised release;
• (I) any mandatory minimum penalty;
• (J) any applicable forfeiture;
• (K) the court's authority to order restitution;
• (L) the court's obligation to impose a special assessment;
• (M) the court's obligation to apply the Sentencing Guidelines, and the court's discretion to depart from those guidelines under some circumstances; and
• (N) the terms of any plea agreement provision waiving the rights to appeal or to collaterally attack the sentence.

1. Ensuring That a Plea is Voluntary. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats or promises (other than promises in a plea agreement).
2. Determining the Factual Basis for a Plea. The court must determine that there is a factual basis for the plea.

In order for the state to use any prior conviction, the Court must find that the plea complied in all respects with Rule 11 of the Federal Rules of Criminal Procedure as well as ORS 135.385. The legislative history in adopting ORS 135.385 informs courts and prosecutors that for a plea to be constitutionally valid it must comply with ORS 135.385. This finding of compliance may not be inferred or determined from a silent record on any aspect of the requirements of Rule 11 set out above if the record of the plea is presented to the Court for determination of its validity and that record is lacking in the requirements set forth in Federal Rule 11. When the available records are produced and the records show a lack of compliance with Federal Rule 11, "presumption of regularity" as set forth in State v. Probst, supra, no longer applies. In the instant case, each of the alleged prior convictions of defendant that the prosecution intends to use to enhance the penalty must be measured for validity by applying the record of the guilty plea to all the requirements of Rule 11 of the federal Rules of Criminal Procedure.

Under Rule 11 of the Federal Rules of Criminal Procedure, it may be a requirement that the State provide a tape recording or other proof that defendant was addressed personally in open court regarding the voluntary nature of his plea, an understanding of the nature and elements of the charge, and whether it was based upon being advised of all of the potential ramifications of his plea as set forth in Federal Rule of Criminal Procedure 11(b)(1)(A-N).