Accidents or Prior DUI’s Lead To Felony Charges
In Florida, we have seen a push by prosecutors to enhance DUI charges.
Any DUI related to a crash or accident, or property damage are being treated much more severely by the courts and typically, the prosecutors are asking for jail time on more and more DUI cases.
We have also seen an increase in the number of cases being transferred to the felony level, because of physical injuries or because the defendant has prior DUIs.
A third DUI typically qualifies as a felony if the last DUI occurred within the last 10 years. Many people incorrectly believe that all three DUI priors must have occurred within the 10 year period.
But under Florida Statutes 316.193, if it is an offense within 10 years of the second DUI, regardless of when the first DUI occurred.
You could have a DUI from 30 years ago, and still qualify to be charged with a felony with the potential penalty of up to five years in prison.
While receiving the maximum statutory sentence is unlikely, I can tell you from experience that in many local counties like Okaloosa County, Walton County, and Santa Rosa County, prosecutors and as well as judges take a “jail policy” approach to handling these cases.
This so-called policy means that they want serious jail time on DUI cases which for starters in a lot of cases is a year in county jail or state prison.
Not being much of a fan of politically biased sentencing policies in the criminal justice system, I have focused my efforts toward helping my individual clients with their individual cases, looking for ways to create defenses to help protect them against these harsh punishments.
The first area to explore is the legal nature and validity of the prior DUI convictions.
The first question is whether or not the client had an attorney present at the time of the plea or prior DUI conviction date. The reasoning here is that if someone was not properly advised before entering the original DUI plea, then it would not be fair to charge them with enhanced penalties for a subsequent DUI later.
It is the responsibility of the prosecution to verify these prior DUIs and prove that the defendant was either adequately represented by an actual attorney or fully waived their right to counsel and was properly questioned by the trial judge.
This requires noting the attorney of record, the judgement and sentence, along with accompanying fingerprints that were taken on the date of the conviction.
If the prosecutor cannot provide these documents, then the prior DUI will not be properly certified to be used against the defendant in the criminal proceeding.
So when this occurs, I would recommend filing a Motion to Dismiss (or otherwise formally request that the court to reduce the charge).
Another way to accomplish this, depending on your situation, is to file a Motion to Transfer the case to misdemeanor court, also known in Florida, as County Court.
The latter method, the Motion to Transfer, is utilized more as a way to escape the jurisdiction of a particularly difficult or harsh prosecutor or judge.
A prior, uncounseled DUI conviction may not be used to enhance a present DUI offense to a felony where the defendant had a right to counsel in the prior proceeding. Davis v. State, 710 So.2d 116 (2d DCA 1998), Kirby v. State, 765 So.2d 723 (1st DCA 1999), Riggins v. State, 789 So.2d 509 (1st DCA 2001).
However, in some cases, the defendant may need to file an affidavit that would assert that he or she did not waive counsel. Angel v. State, 769 So.2d 494 (4th DCA 2000).
If you or a family member has been arrested for felony drunk driving in Fort Walton Beach, Destin, Defuniak Springs or elsewhere in Okaloosa County or Walton County, call my office for a free evaluation (850) 362-6655.