Articles Links

DUI Priors Can Be Challenged

Any wet reckless or dui prior conviction that occurred within 10 years of the current offense date will be charged as a prior conviction.  Such priors dramatically elevate the potential punishment if convicted on the new case.  The law provides a mechanism to challenge priors.  

There are generally three components to establish the record of the prior (I've developed a 4th--more below).  The traditional three are 1) the waiver of rights form, 2) the court's docket sheet (clerk's record of what transpired and 3) the court reporter's transcript of what was actually said in court at the time of the guilty/no contest plea.    

In one very recent case in the Metro L.A. courthouse, my client was charged with DUI while having a prior and currently being on summary probatin in connection with that prior.  Part of my duty as counsel is to obtain the record on the prior.  In reviewing the record I noted that the Court Commissioner in San Fernando made some key mistakes.  The Commissioner also erroneously checked a box showing that he was a "Judge."  

I filed a detailed motion challenging the prior on constitutional grounds and the City Attorney's motion specialist filed a response vigorously opposing.  I then filed a Reply picking apart her opposition.  At the hearing on the motion, I pointed out that the Commissioner on the prior had been (according to a Google search on the Commissioner) disciplined for misconduct on the bench.  The Google search also showed that the Commissioner's defense to the misconduct charge was "momentary lapses."  I made those two words, momentary lapses, the theme of my argument to the court. 

Motion granted---prior declared unconstitutional meaning that it can never be used by any court or DMV.  

Rather than facing second offense sentencing and probation violation (150 days in jail), client received first offense sentencing.  Further, DMV could not use the prior to enhance license suspension. 

DMV hearing officer comment when client's record was updated showing that the prior was declared invalid: "Mr. Shultz, you take care of business!"

Clients comment: "Calling you was the best call I've ever made."  

In another case at LAX (Aug., 2013), client was charged with dui and having sustained two prior dui's within 10 years.  I ordered the waiver form and court's minutes and my very careful investigation showed that an Orange County Commissioner failed to make a key finding as to whether a rights waiver was knowing and intelligent.  The LAX court courageously granted my motion and struck the prior.  This then saved my client a year in jail.  

The following is a portion of the reply brief that I filed calling the prosecutor out for being downright nasty.  Enjoy---

"Advocacy has its limits.  It is undeniable that defendant is before the court on a third DUI case.  She has spotlighted in the pending motion certain inadequacies in the record of her first 2006 pro per conviction in Orange County and the people have responded.  Rather than carefully addressing defendant’s principal arguments, the people here, in the space of just over six pages, have instead attempted to inflame the passions and prejudices of the court in an effort to win denial not based on the issues, but because the people characterize defendant as a desperate, habitual drunk driver; i.e. a bad person who has no right to have a motion granted, no matter its merit.

The people state, repeatedly, as follows: “The Defendant makes numerous arguments in a desperate effort to convince the Court that one of her prior convictions should be struck, so she might escape the consequences of her third driving under the influence conviction.” (RB 3).  “Defendant is looking for any possible way to escape responsibility for her third driving under the influence offense.” (RB 5)  “Defendant is looking for anything, any technicality at all, that she can use to avoid the consequences of her habitual drunk driving.” RB 6)  “The people are entitled to present evidence at trial to establish that Defendant has committed three driving under the influence of alcohol crimes upon the People of the State of California within the last seven years.” (RB 7).  Counsel for the people, in this response,  employs an artifice, i.e appealing to passion and prejudice to guide the court away from the real substantive issues.[1]  

[1] Such advocacy violates Cal. Rules of Professional Conduct, Rule 5-200, which states, in relevant part:

 “In presenting a matter to a tribunal, a member:

 (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;”

The issues here are straightforward.  The waiver form (Exh. B) and court’s minutes (Exh. C) show that defendant was advised and then waived her constitutional rights.  However, the waiver form contains no finding, supported by an inquiry, that the waivers were knowingly and understandingly made.  The minutes state that defendant waived her rights to trial, a lawyer, confrontation and privilege against self-incrimination (Exh. C, p.2, item 13-16).  However, there is no finding by the court that defendant intelligently and voluntarily waived her right to counsel.  The minutes state:

“Court finds defendant intelligently and voluntarily waives legal and         constitutional rights to jury trial, confront and examine witnesses and to remain silent.”  (Exh. C, p. 2, item 17)

Can this plea be found valid without a memorialized court finding that defendant intelligently and voluntarily waived her right to counsel?  The answer has to be no.



 Lesson: DUI priors must be carefully investigated by a knowledgeable lawyer to give the client every possible chance to lessen penalties.  

As I mentioned, this client had two prior convictions, along with the current pending case.  In researching the priors, I noted that the privately retained attorney who represented client on the second case (an attorney not concentrating in DUI law) and who was in position to challenge the first prior did not bring a motion to challenge the prior alleged against his client. 

Why not?  I don't know for sure--my speculations are:

1) the attorney just didn't know that a prior could be challenged

2) the attorney did know a prior could be challenged but did not take the time to do his job properly or

3) the attorney reviewed the prior record and determined he could not win on a challenge. 

Not all priors can be effectively challenged, but a client at least needs a lawyer who has fought these battles before and has the interest and capability to assist his client in any way possible.  Websites just as mine here provide a degree of education as to what to look for and what can be done in various cases.  Use this knowledge to your benefit. 





(310) 456-1913
Free Consultation


Any Questions or Comments? (optional):
2+5=* So we know you are human.

SBN# 054551

Web Design By The Web Corner