Felony DUIIs, Permissible Double Counting and Double Jeopardy

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

by: Ryan • March 7, 2011 • no comments

I once argued to the Oregon Court of Appeals that it constituted impermissible double-counting to enhance a crime from a misdemeanor to a felony by relying on prior convictions, and then use those same priors to move the defendant along the sentencing grid. The argument would eventually lose, but that day, the defendant was lucky because it was a state's appeal and there was a preservation problem.

Anyway, there's a new article explaining why, in fact, such double-counting should violate the double jeopardy clause. Will it win at the trial level? No. Will it win at the Court of Appeals? No. And I'm not sure the odds get any better higher up the chain. Still, if there's no reason not to preserve the issue, lightning can and does strike. Think of all the unexpected victories we've had from the past ten years, after decades of hitting our heads against the wall.