Defendant is indicted for felony DWI by using two Louisiana convictions that are both more than 10 years old. Although we discarded the 10 year rule in 2005, Louisiana still holds it dear. Defendant claims since the priors would not be usable in Louisiana, they cannot be used to raise this Texas DWI to a felony. Found no white horse in the WestLaw stable, nor apparently did defense counsel. Has anyone come across this and located a solution?

Other than the obvious "We're in Texas, so we use Texas law"?

Tex. Penal Code 12.01(a) (Vernon 2003):
"A person adjudged guilty of an offense under this code shall be punished in accordance with this chapter and the Code of Criminal Porcedure."

- If he's found guilty of a Texas DWI, he's punished under Texas law. It matters not how Louisiana treats might treat the prior if he were found guilty of another DWI in Louisiana; what matters is how Tex. Penal Code Ann. 49.09 and Chapter 12 treat the priors for purposes of assessing his punishment for his Texas crime.

This is going to be governed by general choice of law principles, and Texas subscribes to the 2nd restatement view. The question is whether the 10 year limit is substantive or procedural. If it's procedural, then the rules of the forum state apply (Texas wins, LA loses). If the rule is substantive, then you have to look at which state has the most significant contacts. I think a rule like the 10 year exclusionary rule is going to be procedural, and thus not applicable in Texas. Even if a judge rules it's substantive, the interest Texas has in regulating drivers on its own roadways with for crimes committed in Texas is going to be significant. This is even moreso if your defendant is now a Tx resident, has a Tx drivers license, or was driving a Tx registered car.

Here's a few cases applying conflicts of laws in criminal cases, although usually regarding confessions:

Gonzales v. State, 45 S.W.3d 101, Tex.Crim.App.,2001. ("According to the Restatement (Second) of Conflict of Laws, the general rule as to conflict of laws concerning admissibility of evidence is that the law of the forum applies.")

Vega v. State, 84 S.W.3d 613,Tex.Crim.App.,2002.("There are, under Texas conflict-of-law principles, several factors to consider in determining which jurisdiction has the most significant relationship to the case, including: 1) where the injury or unlawful conduct occurred; 2) the place where the relationship between the parties is the strongest; 3) the number and nature of contacts that the non-forum state has with the parties and with the transaction involved; 4) the relative materiality of the evidence that is sought to be excluded; and 5) the fairness to the parties.")

Perkins v. State, Not Reported in S.W.3d, 2004 WL 3093239, Tex.Crim.App.,2004 (if evidence is privileged under the law of the state with the most significant relationship to the communication, but is not privileged under the law of the forum, it should be admitted “unless there is some special reason why the forum policy favoring admission should not be given effect.” Gonzalez, 45 S.W.2d at 103 (quoting Restatement (Second) of Conflict of Laws § 139 (1971)). The reason for this rule is that “the forum's interest in reaching correct results in its domestic litigation strongly favors disclosure of all evidence that is not privileged under its own laws.”")

I'm not quite sure that actual elements of the offense would be considered procedural, but do agree Texas has much more interest in keeping repeat DWI's offenders off its roads. Interesting arguments all. Apparently none of our number has had this actual situation come up. I'm open to any more thoughts on the matter.

I'm in agreement that the prior convictions, as elements of the offense, are substantive. However, what you're concerned with is the effect of a rule which excludes those convictions from evidence if they're more than 10 years old. It is this rule which is procedural in nature.

I would focus on the *rule* as being procedural. The mere fact that Louisiana has this rule doesn't mean that the convictions don't exist, it simply means that they cannot be used for enhancement. After all, it's not like you're trying to make up convictions or enhance with some unrelated offense- you're bumping up against a Louisiana rule designed as a mechanism to safeguard rights, and those sorts of rules are procedural.

I'd analogize to the confession statutes- the court applied Texas law to confessions obtained in other states for crimes prosecuted in Texas. The right to not be coerced is a *substantive* due process right. The Texas statutes regarding confessions are *procedural* safeguards of that substantive right.

In your case the defendant is asserting a due process *substantive* right to exclude the prior convictions, but he's doing so through a *procedural* right granted in Louisiana to exclude convictions over 10 years old.

Texas determines Texas law. We see this same issue come up in admissibility of confessions.

The Louisianna priors need only be Misdemeanors not felonies. While not a felony in La, it is a felony in Texas. Our substantitive laws are not subject to conflict of laws analysis. Tghe fact that your home state does not have the death penalty is of absolutely no consequence here. Now if the Texas statute required a prior be a felony, La. law would come into play. Since it only requires two misdemeanor priors. Tough luck Cajan boy.

Now if La. had a procedural statute that required expunction and pardon after 10 years, then a conflict of laws arises. But simply put, different elements of crimes are substantive. That is the issue here, no conflict.

Thanks, Clay A, I like your logic. How's this: the LA statute doesn't pardon the defendant, it just makes the priors unavailable for kicking the case up to a felony. Your argument, however, is the best I've seen so far as having something to tell our judge in the absence of a white horse case. (and that's no slant on the other excellent contributions).