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HONORABLE MENTION: The Oklahoma Criminal Defense Weekly.
08.06, Charles Sifers called me last week and relayed the following: An attorney in Oklahoma County was arguing a motion before Judge Black in a DUI case, asserting that the felony charge should be a misdemeanor since the ten years had passed with no "conviction" in the present case. The attorney was holding a copy of the Weekly and reading from an article on this topic. I wrote the article based upon observations made by Charles. Motion granted and young man saved from felony conviction!! Cool.
Here's the article: Another DUI Practice Pointer
by James L. Hankins
This comes from Charles Sifers (OKC) who has let me borrow his legal observation regarding the 10 year requirement under DUI law whereby the State can enhance an otherwise misdemeanor DUI into a felony if the offender has a prior.
Here is the trick: the statute, 47 O.S. 11-902(C)(2), allows the enhancement only if the prior DUI conviction occurred within 10 years of the date that the client was convicted of the second one.
The clear, unambiguous language of the statute requires an actual conviction to take place within 10 years of the prior conviction; not an arrest, not a charge: a conviction. There is some ambiguity concerning what constitutes a conviction, but the most conservative approach would seem to deem the date of the guilty plea the "conviction" pursuant to State ex rel. Lane v. Bass, 2003 OK CR 3.
This means that if you are in a position to continue your case for trial or disposition after the 10 years then you can file a motion to amend the charge to a misdemeanor. Charles reports that the Oklahoma County DAs Office agrees with this reading of the statute, but cautions that the legislature may close this loophole at some point, so use it while you can.
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