I have a situation with a Defendant charged with Felony DWI - good case BUT, one of the priors concerns me. It is a 1974 case with language in the "Order Granting Misdemeanor Probation" that says "IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED, That the finding of guilty herein shall not be final, that no judgment be rendered thereon, and that the Defendant be, and he is hereby placed on probation in this cause..."

SO, can this case be used as a prior for the current offense? I think the answer is yes, but would like to hear from the great minds.

The other prior is from 1990, and does not have any of that language, so it appears to be fine.

Sounds like he got deferred, which was common in 1974. DWI's occurring before Sept. 1, 1984, which resulted in a probation, can not be used to enhance a subsequent DWI, unless the probation was revoked and he got a straight (jail time) conviction.

Even if you find he in fact did get revoked on that 1974 case, do you really want to give a fellow a felony conviction if his only priors are 34 and 18 years ago?

I agree. Regardless whether the 1970's DWI was a deferred or regular probation, you can't use it as a prior conviction under the definition of a conviction as established in the Penal Code. DWI's before 1984 did not count as convictions if deferred or regular probation.

You must be dealing with one old drunk.