This just seems so wrong.
Here is my dilemma�
Defendant is charged with Felony DWI, but defense is arguing is should be a misdemeanor� and he might be right. Help me out.
Defendant�s criminal history:
1996 � 1 year deferred adjudication on DUI (Oklahoma)
1997 � Probation on a DUI (Oklahoma)
1999 �Deferred Adjudication on a DWI (Oklahoma)
2001- Deferred Adjudication on a DWI (Oklahoma)
I know that in Texas we do not even allow deferred adjudications on DWI�s�so I wouldn�t ever have the predicament of whether this is a felony�he would have 4 prior convictions.
However, his priors were out of state (in Oklahoma, where they apparently do DA�s on DWI�s). Do these DA�s count for enhancement purposes? Or am I stuck with just the probation� and making this a Class A, DWI 2nd???
Thanks for any help!
I would think you would have to look at the Oklahoma statute to see whether "deferred adjudication" in Oklahoma means the same thing it does here. If so, check to see whether the defendant was ever adjudicated on their probations.
Texas did have deferred on DWI in the past and under the current enhancement statute you actually can use the probated conviction (deferred adjudication) for enhancement. Check 49.09(d). But this of course only applies to priors in Texas.
I think you need to look at Oklahoma's statutes and see whether a deferred adjudication is nevertheless still considered a final conviction for enhancement purposes. And as Gretchen said, verify that he wasn't adjudicated on any of those other charges.
�22-991c. Deferred sentence.
A. Upon a verdict or plea of guilty or upon a plea of nolo contendere, but before a judgment of guilt, the court may, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings upon the specific conditions prescribed by the court not to exceed a five-year period.
Looks very similar to our deferred adjudication statute (except they apparently allow deferred even without a guilty plea ) Since there is no finding of guilt, I'd say you don't have a conviction absent an adjudication later.
Sounds like a pretty good argument for prohibiting the use of deferred adjudication for DWI crimes. Wait, that's already the law in Texas. I guess we need a law making deferred adjudication count as a conviction. Wait, the Leg thinks that is a bad idea because it dilutes the meaning of deferred.
Goodness, this is complicated. Too tough. Not tough enough. All this discretion and nowhere to exercise it.
The enhanced penalties under 49.09 pretty clearly apply only if the defendant has been previously convicted, and that term has been construed to require a finding of guilt. I think your fifth time offender is actually a second time offender.
Damn. This is just so wrong!
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