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Prior Convictions and DUI Defenses

Prior Convictions and DUI Defenses

Motions to Strike Prior Convictions 

Prosecutors used to argue, mistakenly, that criminal defendants in drunk driving cases did not have the right to strike prior drunk driving conviction sentence enhancement allegations on any grounds other than denial of the right to counsel. They placed reliance on a series of decisions which they misinterpreted.

In 1999, the California Supreme Court finally put the whole issue to rest with its decision in People v. Allen. In this case, the court reaffirmed the non-statutory right to make a motion to strike a prior conviction when it is alleged as a sentence enhancement in a later case.

Once again, the court has buried its holding in an exhaustive treatise on the subject, but a careful reading reveals that, with one exception, nothing really has changed.

The one exception referred to above is footnote 3, which says: “Even if the defendant can prove he did not waive his constitutional rights before pleading guilty, he must also plead and prove he was actually unaware of his rights, and that he would not have pled guilty had he known his rights. (People v. Tassell (1984), overruled on another ground in People v. Ewoldt (1994); People v. Cooper (1992)”

It is helpful to an understanding of the law related to motions to strike prior convictions for unconstitutionality to know that such law is divided into three categories:

Law related to the procedures that must be followed in the taking of guilty pleas;

Law related to the type of records that must be kept to indicate that the procedures were followed; and,

Law related to the procedures to follow for the motion itself.

CVC §§ 23624 (previously CVC § 23209) and CVC § 41403, set forth the procedural scheme for a motion to strike a drunk driving prior conviction sentence enhancement allegation on the ground that the underlying conviction is unconstitutional.

Both §§ 23624 and 41403 are discussed below in detail where appropriate.

A series of forms useable for most motions to strike a prior conviction allegation and a description of the procedures for the motion is also below.

CVC § 23624: General Rule—One Challenge Per Conviction

CVC § 23209 was renumbered to CVC § 23624, operative July 1, 1999, by Stats. 1998, Chap. 118, § 69, it expressly provides that there is only one challenge permitted against each conviction, except that “a subsequent statute or appellate decision having retroactive application affords any new basis to challenge the constitutionality of the conviction.”

It further provides that a conviction found unconstitutional may not be used in any other judicial or administrative proceeding and the DMV must strike it from their records.

Trial courts are mandated to report to the DMV any determination upholding or striking a prior conviction on constitutional grounds. CVC § 1803.

Section 23624 states that it applies only to convictions of §§ 23152, 23153, 14601 and 14601.2. But actually, because of the language of CVC § 23620, it also applies to convictions under Harb. & Nav. C. §§ 655(b), (c), (d), (e) and (f) (drunk boating) and PC §§ 191.5 and 192(c)(3) (vehicular manslaughter intoxicated).

CVC § 41403: Procedure for Motion to Strike Unconstitutional Conviction

CVC § 41403 lays out the pleading requirements and hearing procedure for a motion to strike an unconstitutional conviction.

The statute, by its own terms, applies to those offenses that CVC § 23624 applies to and which are listed above.

In addition, it also applies to CVC § 14601.1 and CVC § 23103, as specified in CVC § 23103.5 (wet reckless).

CVC § 23620 is limited to “this division [11.5], section 13352, and Chapter 12 (commencing with Section 23100) of Division 11.”

Thus, the CVC § 41403 procedure is not applicable to drunk boating and manslaughter prior convictions.
Burden of Proof on Defendant

CVC § 41403 puts the by-a-preponderance burden of proof on the defendant.

Placing the burden of proof on the defendant is permissible under the U.S. Constitution (Parke v. Raley (1992).

Consider Pros and Cons

Consider your chance of winning before deciding to do a motion to strike a prior conviction allegation in a drunk driving case.

The defendant only gets one shot at each conviction (see discussion above). That means if you lose, the conviction cannot be challenged again without new authority. But if you win, you not only get the enhancement allegation removed from the complaint.

Not a Trial Motion

It is not uncommon for attorneys to confuse the issue of the trial on the fact of the enhancement allegation with the separate issue of the right to strike an unconstitutional one. Constitutional validity is not at issue in the trial on the fact of the enhancement conviction.

Do not wait until a jury trial or trial to challenge the constitutionality of a prior conviction alleged as a sentence enhancement. See People v. Vallejo (1991)

You should file a noticed motion prior to trial, but if you do not, file it to be heard at the sentencing hearing. See: CVC § 41403(c).

Advice to Aliens

Misdemeanor drunk driving convictions usually do not involve moral turpitude and usually don’t involve drugs. They don’t generally result in deportation, but there may be a situation where the alien defendant would not have entered the plea if he had been advised of the deportation possibility.

PC § 1016.5 requires a court taking a plea to provide the accused with three admonishments as to immigration consequences, and the failure to do so can be a basis for vacating the plea

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