Challenge A Prior OVI Convictions/ December 27, 2011
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, if the defendant has one or more prior convictions within the last six years a sentence for a misdemeanor will be enhanced . It can also be enhanced if the person has three prior convictions within the last six years. Then 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.
Can I Challenge A Prior OVI Conviction?
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. The defendant must also 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, contact a DUI attorney in Columbus who knows how to properly and effectively challenge the constitutionality of your prior convictions.Related Posts