Motion to Strike a Prior DUI

A motion to strike is used when you are being charged as a repeat offender, but there is a legal reason why your previous conviction(s) should not count against you. For example, you can ask the judge to “strike” or not count a previous DUI because there is a constitutional issue with it.

In California, DUI penalties get worse the more previous DUIs you have in a 10-year period. This means the question of whether or not you have a prior DUI, and whether or not it should count, makes a serious difference in your case. In some cases it could be the difference between jail time and no jail time, or losing your license for years instead of a few months.

If you are being charged with a second or third DUI, you may be able to challenge it if:

  • The court record is inaccurate and you do not in fact have a prior DUI conviction
  • The prior DUI has not been resolved yet—you have not been convicted
  • There is some constitutional reason why the prior charge should not count

An example of a constitutional reason is if you were pushed into taking a plea deal on the previous DUI. You may have plead guilty and been convicted, but this creates an open question as to whether you really were guilty.

In any of these circumstances, your lawyer can file a formal request to the court known as a motion to strike a prior charge. Copies of the motion are also filed with the prosecutor (who may wish to challenge it) and with the court from the previous charge (so that they can respond with factual information about the case). The judge then considers all sides of the issue and makes a ruling on whether or not to strike it.

If the judge approves, the previous DUI will not be held against you for the purposes of sentencing in the current case.

What if my prior DUI could bias the jury?

Sometimes the previous DUI is a valid conviction, and you don’t contest that you were convicted lawfully of the crime. However, that DUI could still give the jury a bias against you. If they see you as a repeat offender from the start, they may not consider the facts of the current case and they will simply assume you’re guilty.

In this case, a motion to strike will not help you. However, you can request a bifurcated trial. This means that the issue of your past DUI is not brought up during the main trial with the jury. Only after the verdict is reached will the previous DUI be considered for the purposes of sentencing (if necessary).

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