I am prosecuting a felony DWI case where the current offense occurred on 7-30-05. The two priors I have alleged are in 1982 and 1989. Specifically, the conviction date on the 1982 case was 4-29-82, and he was sentenced to one year in jail. On September 10, 1988, the defendant committed a DWI, and he was convicted on 4-20-89. He was sentenced to 5 years probation for felony DWI, and he was mistakenly released from probation early on 7-10-92.
This is my problem. As I follow the Getts analysis, the 1982 conviction appears to be available for enhancement because the discharge date is within 10 years of 4-20-89. However, when you analyze the 1989 conviction, it appears to be unavailable because the 7-10-92 discharge date is more than 10 years from the 4-29-82 conviction date. This seems to be an absurd result.
The trial court granted the defendant's Motion to Quash, but there are no findings of fact or conclusions of law. My brief is due on July 24. I appealed believing the trial court was wrong, but now I'm not so sure. Any help you can give me would be greatly appreciated.

My impression of DWI enhancements is that if the new OFFENSE date is within 10 years of the conviction date, the date that D got out of jail, or was released from community supervision, whichever is later, then you're golden. So if I'm understanding your facts right, you have a 4/29/82 conviction for one year of jail. Your date for the 10-year rule would be the date he was released from jail, assuming it was after 4/29/82 (otherwise, you would use 4/29/82), and any offenses which were committed within 10 years of that date are fair game. So, even if the "conviction" date of the 1988 offense isn't until more than 10 years later, the offense itself was committed within the 10-year limit.

Think about it this way: if the law was intended to go by conviction dates alone, what incentive would D's who are close to the 10-year-mark have to plead their newer cases before the 10-year-mark has passed?

It sucks that he couldn't have waited a couple more days to drive hammered, though. You wouldn't have had to worry about any of this.

Well you have the analysis correct, as far as I can tell. The result does seem a little absurd but that is what we have to deal with for a while longer until all of these older cases finally leave the system.


Steve L.

I'm not sure what's absurd about it. I think she's good to use the priors so long as the second offense (not the brand new one she's charging) was committed within ten years of the first prior, which it appears to have been.

I am still glad that the legislature removed the 10-year rule, though.

All Getts said was that 49.09(e) really meant what it said, and it said that any prior DWI conviction is available for enhancement unless 49.09(e)(1)(2) & (3) are all true. If any one is false your conviction is available. The dissent said the result was absurd too but the majority (if i recall correctly) said there isn't anything absurd about the legislature choosing to make available some priors for enhancement available and not others.

Your 1982 conviction = available for enhancement because your defendant was convicted on April 29, 1982 and your defendant was convicted for another offense listed in 49.09(e)(3) within 10 years of the latest date in 49.09(e)(2), which in your case would be (e)(2)(d).

Your 1989 conviction = appears unavailable with the information you provided because your defendant's new offense was committed more than 10 years after his discharge from probation. See 49.09(e)(2). However if your defendant was convicted of a new DWI within 10 years of his discharge date your 1989 conviction will be available.

Look at Getts, 155 S.W.3d 153, and the chart they made as the Appendix, particularly scenario C. That fits your situation. Since a felony probation is a conviction, you could use the 1992 discharge or the 1989 probation commencement as your date, and if he got a year on the 1982 case, unless he already had 270+ days of credit, the release from custody would not have happened until after 7-10-82 (within 10 years of 7-10-92).

The two priors have to be within 10 years of each other. They can be 40 years before this one and they are still available for enhancement.

And yes, thank Shannon, et al. for getting every version of the 10 year rule off the books.

Whitney

Both priors are available for enhancement! Getts holds that prior intox offenses are enhancement-worthy as long as they are within ten years of each other, calculating that time using the closest possible dates (offense, conviction, release). This is true even if neither prior conviction was discharged within 10 yrs of the present offense.

See DWI Investigation & Prosecution by R. Alpert, page 201, example C.

You said articulately what I very inarticulately tried to say (that I believe that both priors are available for enhancements and why).

I will take a moment to reconsider....moment taken.

I stand by my original post. Getts said nothing about the two convictions being within 10 years of each other as being the test. What it said was what I posted originally plus basically this with regards to 49.09(e)(2) and (3):

Look at the conviction (individually) that you want to use for enhancement. Then pick the latest date that applies under (e)(2), in the case of the 1989 conviction that would be the July 10, 1992 probation release date. From that point go forward 10 years. From the information given there was no conviction within the 10 years following that 1992 date which would have made the conviction available under (e)(3). The defendant also did not commit his new offense within 10 years following that 1992 date which would have also made the conviction available.

Since (e)(1) the 1989 conviction was a final conviction, (e)(2) the current offense was committed more than ten years after the July 10, 1992 release date, and (e)(3) the defendant was not convicted for another offense within the ten years following July 10, 1992, then all three conditions of 49.09(e) were true and the conviction is not available for enhancement.


I apologize for my massive run-on sentences--and multiple edits.

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"The State concedes that this is what the literal text of the statute provides. It argues, however, that this creates an absurd result. The State points out that, under this interpretation, a 100-year-old conviction could be used if the defendant also had a 90-year-old conviction, but a 12-year-old conviction cannot be used if the other conviction was just 1-year-old. The State's assessment is correct, but we disagree that this result is absurd."