In California, any DUI on your record from the past 10 years is considered a “prior” charge and, if you’re charged with a new DUI, it will affect your case. The prior DUI will enhance the sentence of the new DUI, making the penalties much worse—and they get increasingly severe for a second DUI, third DUI and fourth DUI.
This means that removing the prior DUI from consideration is a huge benefit. If you can remove or “strike” the previous DUI, you face much less severe consequences even if you’re convicted. And, in some cases, removing the past DUI could even make it easier to avoid conviction this time around.
There are two main ways that this is done:
- Filing a motion to strike the prior DUI, and
- Requesting a “bifurcated” (split) trial
Both of these tactics can be extremely valuable if you face a DUI charge with previous charges on your record. We will look at them both in detail, as well as what it means to “strike” a prior charge and when you can do it.
What does “striking” a prior DUI mean?
Striking does not change the fact that you were convicted in the past—it does not overturn the conviction or prove that you were innocent. Instead, “striking” it simply means it will not be considered as a prior charge in the new case.
This difference is important, because it means you don’t have to go back and re-argue your old case, nor do you have to prove that you didn’t drive under the influence. You only have to show legal grounds for why it shouldn’t count against you now. This is a much easier standard to meet.
Why would I be allowed to strike a prior DUI charge?
The law is clear that your past DUIs should count against you, as long as they were within the past 10 years. So if you really do have a valid past DUI conviction, the courts probably won’t allow you to strike it. Fortunately, there are many circumstances where the past conviction may not be valid at all, at least for purposes of the new DUI.
Here are the typical reasons why you might ask to strike a prior DUI, from least common to most common:
- You don’t actually have a prior DUI at all (uncommon). It’s rare, but sometimes the prosecutor simply tacks on a prior DUI enhancement when you never had a prior DUI at all. This could be because of a paperwork error, mixing up a past dry reckless charge with a wet reckless (“wet” counts as a prior but “dry” does not) or even pulling from the wrong criminal record.
- Your prior DUI hasn’t been resolved yet (more common). Sometimes, a driver is arrested for a new DUI while they are still in the middle of proceedings for a previous DUI. The prosecutor will usually count this as a “prior,” but technically, if you haven’t been convicted yet, it’s an open question, and you can challenge it.
- You have a constitutional objection to counting the past DUI (much more common). If you challenge the constitutionality of your prior conviction, and you succeed, it cannot count as a prior for the new case.
The constitutional objection is the most useful of these because it can be used even though you really do have a previous conviction. Again, this is not a case of declaring innocence in the previous charge, but of declaring that some aspect of your constitutional right to due process is being violated. For example, if you were pushed into a plea deal on the previous DUI, you could argue that your guilty plea was not voluntary. This would call into question whether the previous conviction should really count as a “prior.”
How does a motion to strike a prior DUI work?
The motion is a formal request that your lawyer gives to the judge in your current case. The request essentially explains the reason why you would like to strike the prior and asks the judge to make a ruling.
In addition to the motion itself, your lawyer must:
- Notify the prosecutor (of the current case) about the motion
- Notify the other court (where your previous case was handled) about the motion
This gives the prosecutor and court a chance to gather records.
Finally, the judge will hold a hearing with both sides and decide whether to strike your prior DUI. If the answer is yes, it no longer counts against you in the current case.
What is a bifurcated trial, and how does it help me?
Normally, if you have a potential prior on your record, the prosecutor will bring it up and show evidence of your past DUI during your current trial. They need to prove your past DUI so that when you are convicted you will get the full, enhanced sentence.
Requesting a “bifurcated” trial changes this. Instead of one trial that covers both issues, the court gives you two separate trials. The first one decides your new (current) DUI case, and the second one figures out whether your past DUI counts as a prior.
Most importantly, there is a separate jury for both trials.
This is a huge advantage for you because:
- You can fight the prior separately from the main DUI charge, rather than fighting every charge at once.
- Juries tend to dislike people who have driven drunk multiple times. If the prosecutor keeps bringing up your past DUI at your new DUI trial, it makes you look bad. By keeping the two trials separate, the jury may like you more and find you Not Guilty altogether.
Motioning to strike a prior doesn’t always work. But, combined with a bifurcated trial, it could help you avoid extra punishment or even win your case.
Have you been charged with DUI? We can connect you with an experienced Los Angeles DUI lawyer and get you a FREE consultation. Fill out the form to the right or call (310) 862-0199 and get your free consultation today.