San Francisco DUI Lawyer California DMV Hearing Attorney

• Introduction
• What To Do First
• Elements of the Offense
• BAC Calculator
• Misdemeanor DUI Case
  • Investigative Considerations
  • Miranda Warnings
  • Pretrial Motions:
    • Suppress DUI Evidence
    • Motion for Discovery
    • Pitchess Motions
    • Blood Sample Motion
    • Motion to Strike Prior
    • Miranda Violations
  • Plea Bargains
• Criminal Jury Trial
• Criminal Court Punishment
• Alternative Sentencing
• Sentencing Enhancements
• Refusal Cases
• Felony DUI Case
• Medication Cases
• Drug Cases
• Federal DUI Case
• Out-of-State Drivers
• Drowsy Driving
• Post-Conviction Relief
• Ignition Interlock Devices
• Motorcycles, Boats, Planes
• California Highway Patrol
• California DUI Resources

Motion to Strike Prior

In California DUI trial, criminal defense attorneys likely will make one or more pre-trial motions before taking a Driving Under the Influence (DUI), or Driving While Intoxicated (DWI) case to trial. One common motion is a request to strike prior DUI convictions from the defendant's record. An experienced California criminal defense attorney may convince the court to exclude one or more prior convictions and improve the driver's chances at trial.

Prior convictions dramatically impact every aspect of driving under the influence (DUI) cases, from bail to sentencing. California has a 10-year "washout period" for driving under the influence convictions, meaning that if someone is arrested for a DUI offense within 10 years of a prior offense, the second DUI arrest will be charged as a second offense. If the second arrest occurs more than 10 years after the first, it is simply a first-time DUI.

The potential punishment for multiple DUIs can be severe, including jail, hefty fines, mandatory alcohol education classes, installation of an ignition interlock device, and driver's license suspensions. Drivers arrested for a second, third, or fourth DUI offense within a 10-year span face increasingly serious punishment.

In some California DUI cases, drivers are charged as second- or third-time DUI offenders even though their prior drunk driving cases have not been adjudicated. The California Legislature has determined that the timing of court proceedings does not affect the ability of courts to impose enhanced penalties for multiple DUI offenses.

Therefore, a defendant may be in the midst of a second-time DUI case and get arrested for a third drunk driving offense. The court in the latest case can sentence the defendant as a third-time DUI, even though the defendant has not been convicted as a second-time DUI offender. The only hard and fast rule is that the offenses occur within a 10-year span.

However, there is an option for a defendant facing multiple unresolved DUI cases - defense counsel on behalf of the defendant may request a bifurcated trial. This is a request to the court to try the older offense separately from, and after, the later offense. Because prior convictions are enhancements, not elements, of the DUI offense, the court must grant bifurcation on the defendant's request. A bifurcation motion must be brought in a timely manner to be considered.

The first step in deciding whether to make a challenge is to obtain information about the prior DUI conviction. Defense attorneys accomplish this by submitting a written request to the court of conviction.

Some prior DUI convictions cannot be used by the prosecutor to seek enhanced punishment. Neither convictions that have been determined to be invalid under the U.S. Constitution nor juvenile convictions can be used for enhancement purposes.

Crimes that qualify as prior crimes include the common DUI charge - California Vehicle Code Section 23152 - - Driving Under Influence of Alcohol or Drugs, DUI with injury - California Vehicle Code Section 23153 - Driving Under Influence of Alcohol or Drugs Causing Injury, "wet reckless" - California V.C. Section 23103.5 - Guilty Plea to Lesser Charge, out-of-state DUI convictions - California V.C. Section 23626 - Effect of Conviction in Another Jurisdiction, Federal DUI convictions, Boating under the Influence, and those DUI convictions that have been dismissed per Penal Code Section 1203.4 (the expungement provision).

A prior conviction can be challenged only once on a constitutional basis, and the court's ruling is binding on all future proceedings. An experienced San Francisco Bay Area drunk driving defense lawyer can ensure that a motion to strike prior convictions is timely and effective, and possibly prevent past acts from increasing DUI punishment.

A motion to strike a prior conviction is a written statement that outlines the specific constitutional rights the defendant alleges will be violated by the prior conviction being used to enhance punishment. For example, a defendant can claim that a prior guilty plea was not voluntarily offered.

Prior convictions can be excluded from enhancing punishment in a driving under the influence (DUI) case, but only with expert legal advice. A California criminal defense lawyer skilled in defending multiple DUI cases will evaluate prior convictions to determine whether they can be stricken from the defendant's record to avoid additional consequences.

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