Then the allegation fails. A prior DUI conviction listed in the charging document is not automatically true: if you deny it, the prosecution must prove it beyond a reasonable doubt, and if it cannot, the jury (or the judge, if you give up a jury) must find the prior not proved (CALCRIM No. 2125). Even a prior the prosecution can prove may be challenged in narrow ways, mainly by showing it came from a plea taken in violation of your constitutional rights.

The prior must be charged and proved, not assumed

When the current case alleges you have a prior DUI conviction, you are asked to admit or deny it (Penal Code section 1025(a)). Two separate questions follow a denial. Whether you are the person who actually suffered that prior conviction is decided by the judge alone, without a jury (Penal Code section 1025(c)). Whether the alleged conviction is true is decided by the jury, or by the court if you waive a jury (Penal Code section 1025(b)).

At trial, the jury is told that the prosecution has the burden of proving each alleged prior conviction beyond a reasonable doubt, and if that burden is not met, the jury must find the allegation not proved (CALCRIM No. 2125). The court can instead try the prior-conviction question in a separate proceeding after the main verdict. The same burden applies there (CALCRIM No. 221), the jury can be told on request to consider only the evidence presented in that proceeding, and its finding must be unanimous (CALCRIM No. 2126).

What the prosecution can use to prove a prior

A certified official record of the conviction is admissible to prove a prior (Evidence Code section 452.5(b)), and certified prison or jail records are prima facie evidence that a person was convicted and served a term for it (Penal Code section 969b). In a DUI case, the court must also obtain your DMV driving record, and it may accept a DMV printout as rebuttable evidence, meaning evidence that can be contradicted, of a separate DUI conviction within 10 years (Vehicle Code section 23622(b)). If the records do not reliably tie you to the earlier case, that gap is worth examining closely with your attorney.

A conviction from another state, a U.S. territory or possession, the District of Columbia, Puerto Rico, or Canada counts as a California DUI prior only if that offense, had it been committed in California, would have violated California’s DUI law (Vehicle Code section 23626). A similar name is not enough.

Challenging a prior that was not validly obtained

If the earlier conviction came from a guilty or no contest plea, you can ask the court to strike the prior on the ground that you did not know of, or did not validly give up, the three trial rights a plea waives: the privilege against self-incrimination, the right to a jury trial, and the right to confront witnesses. Pointing out that the old record is silent about those rights is not enough. You must affirmatively allege that you did not actually know of, or did not intelligently waive, those rights. Once you do, the court must hold an evidentiary hearing to decide whether that allegation is true (People v. Sumstine (1984) 36 Cal.3d 909). A prior struck this way is removed from the current case only; the earlier conviction itself is not vacated (People v. Sumstine).

For a prior DUI conviction, Vehicle Code section 41403 sets the procedure. You must state in writing, specifically, how your rights were violated, and file and serve it on the prosecutor and on the court that entered the earlier conviction at least five court days before the hearing. At the hearing, held before trial and outside the jury’s presence, the prosecution first offers evidence of the prior; you then must prove the violation by a preponderance of the evidence and provide the plea records (the docket, any signed waiver of rights, and plea transcripts, provided at no cost if a public defender or appointed lawyer represents you); the prosecution may then respond. A prior found constitutionally invalid is struck from the charging document.

One ground is not available in the current case. You cannot use it to argue that your lawyer in the earlier case gave you constitutionally ineffective representation. The California Supreme Court has held that a defendant facing an enhanced sentence in a noncapital case may not use the current prosecution as a forum for that challenge (Garcia v. Superior Court (1997) 14 Cal.4th 953). The court did not decide what remedies, if any, exist in a court with jurisdiction over the earlier conviction, but it said that a prior actually vacated or set aside there can no longer be used to increase punishment, and a sentence based on it may be reduced.

A judge also cannot simply strike a valid DUI prior to avoid the minimum jail time, fine, or license consequences (Vehicle Code section 23622(a)). A challenge has to rest on a failure of proof or a real legal defect.

What is actually at stake

The number of proved priors within 10 years decides which penalty section applies. With one prior, the jail range is 90 days to 1 year (Vehicle Code section 23540); see second-time DUI defense. With two, it is 120 days to 1 year plus a 3-year habitual traffic offender designation (Vehicle Code section 23546). With three or more, it is 180 days to 1 year in county jail or a felony sentence under Penal Code section 1170(h), plus the same designation (Vehicle Code section 23550); see third DUI in California. Those ranges apply when probation is not granted. When it is, other sections set the jail minimums; with one prior, for example, the minimum is 10 days or 96 hours (Vehicle Code section 23542).

A practical checklist

  • Ask your attorney to request certified copies of the earlier case’s court file, including the docket, any signed plea or waiver form, and any transcript of the plea hearing, and check whether they show you were told about, and gave up, each of the three trial rights.
  • Compare the DMV printout and court records with the earlier case: name, date of birth, case number, and dates.
  • If the prior is from outside California, compare what that offense required with California’s DUI law, not just its name.
  • Start early: if the written challenge is not served on time or the plea records are not produced, the court can hear it at sentencing instead of delaying the trial (Vehicle Code section 41403(c)).
  • If your case goes to trial, ask whether the prior will be tried with the main case or in a separate proceeding; see DUI trial and jury trial defense.

If prosecutors are alleging a prior DUI conviction in your case, the Law Offices of David S. Chesley can review the earlier record with you. Call (800) 755-5174 to discuss your case.