There are three different ways in which a DUI becomes a felony DUI charge. First, if there are a total of four offenses within six years the fourth offense is a felony. Second, if a person accumulates six offenses within 20 years, the sixth offense is a felony. And finally, once a person is convicted of a felony DUI all subsequent DUIs– regardless of when they occur–are felonies.
For purposes of calculating the six and 20-year look-back period, it runs from the date of the previous conviction to the date of the current arrest. This gives the shortest time span, which is to the states advantage not to the defendants. For example, if a person is arrested on January 1, 2010 but not convicted of OVI until May 1, 2010, that six-year period moving forward begins from May 1, 2010. If the person is arrested and convicted of three more DUIs in 2011 and then has no contact with the law until March 2016 it would be more than six years since the person committed their first DUI but less than six years since they were convicted of it. Therefore, it is a fourth offense within six years and is a felony.
Our OVI / DUI attorneys at Suhre & Associates, LLC have seen several cases where the dates were miscalculated and either the felony offense wasn’t charged or they were miscalculated and the felony charge was improperly imposed. It’s important when dealing with any felony DUI case to examine each prior conviction closely not only for the dates of the convection but also for any constitutional infirmities.
When examining the prior convictions, it must be reviewed as to whether or not the person had an attorney. Many times felony OVI defendants will not have had an attorney on one of the first DUIs within the six or 20 or look back period. This is important because an uncounseled prior conviction can be attacked and if successful excluded from the calculation.
In order for a prior DUI conviction to be used against the person, the plea must have been made knowingly, intelligently, and voluntarily–and with the appropriate waiver if the person did not have an attorney. It is here that many of the successful challenges exist. People have the right to represent themselves–even though Lincoln once said that an attorney who represents himself has a fool for a client. In the context of challenging a prior conviction, not having an attorney on the case gives us one more opportunity to have the charge reduced. The challenge for an uncounseled prior plea is really based on whether or not the judge had the proper colloquy with with the defendant in determining that they were making a knowing, intelligent, and voluntary waiver of their rights– including the right to counsel– before entering a guilty or no contest plea to the DUI. It’s not uncommon for us to obtain the transcript of the hearing in order to review and mounting successful challenge to the states use of the prior uncounseled plea.
Of course the penalties for a felony DUI are much higher than a misdemeanor DUI. On the first felony offense there’s a minimum of 60 days local incarceration up to one year or 60 days in prison with the option of the judge giving an additional 6 to 30 months. Generally our experience has been that the point the judges see a felony DUI they feel that the person has been given enough chances for treatment or other alternative sentences and are typically handing out more than the minimum penalties. On the first felony OVI, if there was either a high test or a refusal, that minimum 60 days of local incarceration doubles to 120.
A second lifetime felony has a minimum 60 days in prison (not local incarceration) up to five years –there’s currently a conflict between two sections of the revised code in that one section provides for a maximum sentence of only 36 months. The second felony OVI with a high tier test or refusal doubles the minimum sentence to 120 days in prison up to five years with the conflict in the other section of the statute making it a maximum of a 36 month sentence.
There’s also a specification that can be added to the indictment. The specification for first felony includes an additional 1,2,3,4, or 5 years in prison consecutive to the time given as the primary sentence. The same specification can be added to the second felony DUI with the same range. This specification has to say that the grand jurors find that the defendant, in the preceding 20 years, has previously been convicted of five or more of OVI offenses. Therefore, this specification can only apply to an individual who has five or more offenses but not to the individual who has four DUIs within six years.
These are some of the unique defenses to felony DUI. This is by no means an exhaustive list. The essential elements of a defense, other than the prior convictions, of a first offense OVI are the same for a felony OVI. The same issues of whether or not the individual was impaired, whether or not the officer complied with the standardized testing requirements, whether or not the breath testing equipment was in proper working order, and whether or not the state can prove all the elements beyond a reasonable doubt also apply to a felony DUI in the same way that they do to a first offense misdemeanor DUI. Procedurally the case is very similar, although there are unique processes involved in Common Pleas Court– where felonies are heard.
Learn more with this chart outlining the Prohibited Drug and Alcohol Concentrations.
At Suhre & Associates, LLC we have experience handling felony OVIs. Not only are we able to provide the traditional defenses associated with any DUI, we have unique experience in asserting the defenses associated specifically with felony DUIs.