Scenario: 1984 DWI conviction with 3 day jail sentence, 2003 DWI conviction, and new DWI committed in 2004. We just indicted this case under the understanding that if the most recent prior fell within the 10 year period then the oldest prior could be used for enhancement, no matter how old as long as it was a final conviction.

I just had a defense attorney bring a San Antonio CA opinion (Uriega 2004 Tex. App. Lexis 2208) to my attention that basically says my 1984 conviction cannot be used to enhance because there was no intervening DWI conviction within 10 years after his 1984 release from jail.

This new case diverges from what I understood the law to be. Have any of you had a chance to look at this case?

Ben:

Take a look at this thread. It should answer some of your questions on the application of the 10 year rule.

Uriega Discussion

Thanks Robert. I did look at that thread, but it looks to me like Uriega is a completely different interpretation of the 10 year rule and appears to be counter to what the thread says was the legislative intent. Uriega was decided only last month and certainly shoots down the idea that you can use an old prior final conviction (i.e. outside 10 years) as long as you have a conviction, probation, etc. within 10 years of your most recent offense. Uriega basically says that if the most remote prior conviction date, probation discharge, sentence discharge, etc. is not followed up with a DWI conviction within 10 years, then the remote prior is not fair game for enhancement. Even more basically -- you can't have a 10 year gap between priors. Am I interpreting this wrong?

Given your fact scenario, I tend to agree with the defense's interpretation. We just got out of a DWI trial with the tried offense occurring in 2003 and priors in 97, 90, and 86.

The Defense attorney offered to stipulate to the priors in 97 and 86. We refused based on Uriega with our interpretation being that those two particular priors would be insufficient to vest the district court with jurisdiction. The trial court ruled with us stating that the defense could either agree to stipulate to the 97 and 90 priors or that we could put on evidence of the priors.

I guess the point of the story is that our office is proceeding on the basis that Uriega means that they must be within the ten year range. No longer can you have one intervening in the ten year period and then reach back as far as you want to get your other DWI to get felony jurisdiction.

I have read Uriega and I have received a number of emails and calls about the case. My interpretation of the statute is out there in my DWI book and in the last couple of DWI updates papers I presented at Trial Skills Course. I am not at the office so I can't repeat it here. I won't pretend I am optimistic about my view prevailing but I would remind all readers that this is the same Court of Appeals that gave us the Stewart case. Until my arguments are addressed I will stand by my reading of the statute. Perhaps someone at TDCAA can lift it out of my paper and post it in this thread?

More fuel to push for the repeal of the 10-year rule, whatever it means.

Can someone post here whether PDR is being pursued by the State Prosecuting Attorney as well? This is the sort of issue that is ideal for that office to step in and provide a statewide view. And, given Martin's recent posting of the success rate for such PDR's, we need their support.

quote:

---

Originally posted by John Bradley:
Can someone post here whether PDR is being pursued by the State Prosecuting Attorney as well? This is the sort of issue that is ideal for that office to step in and provide a statewide view.

---

According to the new and improved CCA website, the SPA has filed a PDR in the Getts case out of the Tyler court of appeals, which presents another 10 year rule problem. The San Antonio court of appeals website shows that the State filed a PDR on 4/12/04, but does not reflect whether it was filed by the district attorney or the SPA.