Today, the CCA interpreted the DWI laws in a manner that will create a lot of dismissals. Are we finally ready to do away with the 10-year rule?
Read the opinion
I'm not sure this interpretation is any different than the one we've been laboring under for several months. In fact, we were under the impression that as long as the defendant had no priors within the last ten years, we had only a misdemeanor. The court reads the statute (and I think I agree) that as long as the defendant has another prior within ten years of the one you want to use, you get to use both of them, even if both are more than ten years old themselves. While I agree with John's suggestion that getting rid of the ten-year rule would be the simplest thing to do, this case only hurts us in the rare instance when our priors are over ten years apart.
It looks from the opinion like the CCA has pretty much already done away with the 10 year rule - as least as we "knew" it... All we really need to do is simplify the rule. The convoluted language is what leads to cases like this in the first place. Say what we mean, and use a date certain - like the offense date. AND, add a provision that says if you have EVER been convicted of a felony DWI, then ANY subsequent DWI, regardless of date, is a felony. JB - I noticed that Cochran dissented, but could not figure out how to post her dissenting opinion here - could you do that?
Here is Cochran's dissent
So correct me if I'm wrong folks, but is Getts saying that if someone has a 1984 conviction and a 1987 conviction that both may be used to enhanced a newly charged 2004 case because both are within 10 years of each other? Even though neither are within 10 years of the newly charged offense?
Doesn't that question alone justify fixing the statute? No one asks that question when enhancing a theft or assault case. That's because those statutes simply say there must be previous convictions, creating no restrictions on the dates of offense, intervening time, or dates of conviction.
(1) At least we have a clear answer (and I doubt it is one the defense likes). Regardless of how old the two priors are, if they are within 10 years of each other (using the new release from constraints calculations) and they are final convictions, the new charge is a felony.
(2) I believe this will enhance our chances of doing away with the 10 year rule this session.
(3) I am also please to see that the dissent and Dawson and Dix were interpreting it the same way I was.
The answer is yes. Check out the chart in the appendix to the opinion. It makes very clear what the court thinks about the various possible scenarios.
That is precisely what it says.
Correct me if I'm wrong, but if I'm reading the Appendix to the opinion correctly it seems that Gett's 1997 conviction was available to elevate the 2002 offense to a Class A Misdemeanor.(See Letter D) Yet the Court of Appeals and the CCA reformed the judgment to a Class B. Strange.
I know the dissent touched upon it, but it also appears that the CCA did not address the 49.09 (d) issue directly?? If the court wants a literal reading, then 6701 convictions will not ever need to be within ten years of each other to elevate to a felony??
Under 49.09 (e)(1) the first requirement for applicability of the ten-year rule is that the prior has to be a final conviction for an enumerated Chapter 49 offense. Therefore, out of state convictions and 6701 convictions are exempted from the ten-year rule and their age is irrelevant. That is a literal reading of the statute??
I know that many people would justifiably argue that the legislature meant to include all DWI convictions as they did in 49.09 (c). However, they excluded them and I would refer to the GETTS opinion on intepreting the intent of our legislators.
Richard Alpert put me onto the 49.09(d) argument. I have made it in a state's appeal, but I will win that case based upon the holding in Getts.
There is another long thread on this topic you can view here: DWI 10 year rule
As legislation attempts to become ever more specific, we will run into many more situations like that in Getts.
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