Our officers have brought our JP several cases of minor in possession and/or consumption. Because we are a small town, our JP knows that a couple of the kids have two prior mip or mic convictions; however, the officers did not mention the priors on the citations. Further, Alcoholic Beverage Code section 106.071 states that the enhanced penalties for a 3rd can be used if the two prior convictions are proved at trial.
Do any of you read this as requiring a trial to use the enhanced penalties for a 3rd? Also, do any of you see a problem with the JP sending the citations back to the officers to request that the officers check for priors? I told her she could send the citations to my office (county attorney), but she doesn't want to send up Class C's.
Thanks for any help.
The priors are probably in her court, so she should just send the ticket and her judgments to the misdemeanor prosecutor to be filed. We get these often from the muni court here. We retype our own complaint, anyway, so just sending the evidence is enough and then we write the complaint/information based on what the lower court sends.
The officer signs the new complaint/info, so no need to send back and re-write the ticket. Our officers don't have a way to look up prior Class C's--we only are able to do this when a judge personally knows that there are two priors.
The plea is the trial. The defendant is just pleading guilty and going to the judge for an agreed punishment. As long as the defendant admits the enhancements, by pleading guilty/nolo, and the judge finds them to be true, than it has been "proved at trial."
DWI enhancements for example have that same requirement that the priors be proved at trial, and you can plead people to DWI 2nds or felony dwi 3rds without any special formality other than the plea.
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