Challenging Prior OVI Convictions
In Ohio, prior OVI or similar drunk driving conviction is used to either enhance the mandatory sentence for a pending OVI charge or to enhance the degree of the offense, such as enhancing a misdemeanor to a felony. Under Ohio law, a sentence for a misdemeanor will be enhanced if the defendant has one or more prior convictions within the last six years, or, if the person has three prior convictions within the last six years the charge will be enhanced from a misdemeanor to a felony. As discussed in prior posts, prior DUI convictions can result in increased mandatory sentences pertaining to not only the length of a jail term, but also to the length of a license suspension and possible vehicle forfeiture.
A prior DUI conviction for drunk driving can be challenged under certain limited circumstances. The burden is on the defendant to prove, by a preponderance of the evidence, that a prior conviction was constitutionally defective and therefore, that it cannot be used to enhance the current sentence or charge. A prior conviction is constitutionally defective if the defendant was not represented by counsel and the defendant was incarcerated as a result of the conviction.
To avoid this type of challenge and to protect defendant’s rights, courts are required to advise a defendant on the record that they have the right to counsel and the defendant must make a knowing, intelligent, and voluntary waiver of the right to counsel after being so advised, and preferably in writing. Some courts fail to go through this due process requirement, and merely accept a person’s guilty plea and proceed to sentencing.
If you’ve been charged with DUI or OVI in Columbus, contact a DUI Attorneywho knows how to properly and effectively challenge the constitutionality of your prior convictions.