Tricky situation

[ERAUPIKE]

I have talked to many more than three atorneys. But I get differrent answers all of the time, and to be honest with you i dont feel like any attorney tells someone the entire "truth" in a free case review. I just want unbiased opinions without money being a contributing factor. I do rely heavily on what a site like this (neutral source) can tell me. I ALREADY have a texas attorney and he tells me they cannot try it as a second offense. But california attorneys tell me it will be, and more importantly they tell me to try and get the two convictions to be as close as possible to the same time (as long as california one comes first) and that my probations/suspended licenses will overlap. But my texas Attorney has never mentioned this at all.

Im sorry asking, I just wanted nuetral advice thats all

You prefer the advice of complete strangers over the professional opinons of the attorneys you have hired? I can se why you got two DUI's now. Follow your attorneys advice, you paid for it. It is my belief that your Texas conviction can, and hopefully will, be charged as your second offense. If you don't trust your attorney it is time to get a new one.

 

[buckhunt122]

You are completely ignoring my question, in order to dump your personal beliefs on some helpless kid.

Either answer my questions or please stop posting in this thread:

1.) If both are convicted at same time will probation and suspensions be concurrent, or will that complicate things beyond manage and possibly make them fall back to back.

2.) Assuming the Texas suspension is considered FIRST offense with a non oblivoius judge, what kind of penalities could I expect.

 

[CavemanLawyer]

Well, I have to say I disagree with some of the answers and logic here.

First off, all enhancements based on prior convictions in Texas require that the prior conviction occur before the date of offense of the new charge being enhanced. Actually its not even enough that the conviction occur prior to the date of offense, the conviction must also be final meaning that there was no pending appeal. A defendant in Texas can literally commit DWI after DWI 10 times in a row and as long as they are still pending, they simply have 10 charges of DWI first. I can say with certainty that your current DWI in Texas can never be enhanced to a DWI second regardless of what happens in California. I don't know anything about California law so I cannot say that your Texas charge won't affect that one... I have no idea.

Furthermore, a prior DWI conviction increasing the charge to a DWI second is considered a punishment enhancement and not a jurisdictional enhancement. DWI 1st and DWI 2nd are both misdemeanors and are going to fall under the jurisdiction of the county court either way. Only in the case of a DWI 3rd offense or more is the enhancement considered jurisdictional in nature because without it, you would not have a felony and would have no way to invoke the jurisdiction of District Court.

Over the years there have been several cases that danced around the issue of whether a DWI conviction in a DWI 2nd was considered an element of the offense or not, but ultimately the caselaw was cleaned up and it is definitively considered NOT an element of the offense and something that is proven in punishment only.

(Example: Wilson v. State, 772 S.W.2d 118 and Harrell v. State 1997 WL 230145 were the accepted law for years holding that a DWI 2nd enhancement was not an element of the offense. Then State v. Morgan 110 S.W.3d 512 and Blank v. State S.W.3d, 2005 WL 763255 came along and ruled exactly the other way. Morgan was appealed and ultimately the State lost on purely procedural grounds without addressing the actual issue and the opinion was never published = no value. Blank was appealed and ultimately overturned, ruling that it is not an element of the offense.)

 

[buckhunt122]

thank you caveman, your awesome. Just to send you my questions above will getting this two cases simultaneously executed serve any purpose. Could i kill my two drivers license suspensions and probational periods at the same time?

 

[tranquility]

Darn not Shepardizing my cases. Why did the court determine priors is not an element but an enhancement? Was the policy reason related to due process and improper introduction of character evidence? (Or, would be of little probative value related to the tendency to inflame the passions of the jury.)

 

[ERAUPIKE]

Well, I have to say I disagree with some of the answers and logic here.

First off, all enhancements based on prior convictions in Texas require that the prior conviction occur before the date of offense of the new charge being enhanced.

I don't see that written anywhere in the law. Can you show me anything to back up that assertion?

Actually its not even enough that the conviction occur prior to the date of offense, the conviction must also be final meaning that there was no pending appeal. A defendant in Texas can literally commit DWI after DWI 10 times in a row and as long as they are still pending, they simply have 10 charges of DWI first. I can say with certainty that your current DWI in Texas can never be enhanced to a DWI second regardless of what happens in California. I don't know anything about California law so I cannot say that your Texas charge won't affect that one... I have no idea.

I agree, but a conviction in California, not pending appeal, will be a prior conviction. When I posted the applicable statutes that is exactly what I stated. DUI is the charge, the second DUI penalty is tacked on as an enhancement.

 

[ERAUPIKE]

You are completely ignoring my question, in order to dump your personal beliefs on some helpless kid.

Either answer my questions or please stop posting in this thread:

1.) If both are convicted at same time will probation and suspensions be concurrent, or will that complicate things beyond manage and possibly make them fall back to back.

2.) Assuming the Texas suspension is considered FIRST offense with a non oblivoius judge, what kind of penalities could I expect.

First, you don't dictate who can and can not post on this thread. You need an attitude adjustment ASAP.

These are the punishments you are facing at best and worse case scenarios.

First California DUI Offense
1st Drunk Driving Conviction
Jail: From 96 Hours to 6 Months
Fine: From $1,000 to $1,600
License Suspension: 6 Months
Must Complete a Driving Under the Influence Program
May Be Ordered to Install Ignition Interlock Device (IID)

First Texas DWI Offense
1st Drunk Driving Conviction
Jail – From 72 Hours to 180 Days
Jail – From 180 Days to 2 Years (Child under 15 in Vehicle)
License Suspension – From 90 to 365 Days
Fine – Up to $2,000
Fine – Up to $10,000 (Child under 15 in Vehicle)
DWI Surcharge - $1,000 per Year for 3 Years
DWI Surcharge - $2,000 per Year for 3 Years (BAC .16 or Above)

Second Texas DWI Offense
2nd Drunk Driving Conviction
Jail – From 30 Days to 1 Year
Jail – From 180 Days to 2 Years (Child under 15 in Vehicle)
Fine – Up to $4,000
Fine – Up to $10,000 (Child under 15 in Vehicle)
DWI Surcharge - $1,500 per Year for 3 Years
DWI Surcharge - $2,000 per Year for 3 Years (BAC .16 or Above)
License Suspension – From 180 Days to 2 Years
Ignition Interlock Device

 

[buckhunt122]

First, you don't dictate who can and can not post on this thread. You need an attitude adjustment ASAP.

These are the punishments you are facing at best and worse case scenarios.

First California DUI Offense
1st Drunk Driving Conviction
Jail: From 96 Hours to 6 Months
Fine: From $1,000 to $1,600
License Suspension: 6 Months
Must Complete a Driving Under the Influence Program
May Be Ordered to Install Ignition Interlock Device (IID)

First Texas DWI Offense
1st Drunk Driving Conviction
Jail – From 72 Hours to 180 Days
Jail – From 180 Days to 2 Years (Child under 15 in Vehicle)
License Suspension – From 90 to 365 Days
Fine – Up to $2,000
Fine – Up to $10,000 (Child under 15 in Vehicle)
DWI Surcharge - $1,000 per Year for 3 Years
DWI Surcharge - $2,000 per Year for 3 Years (BAC .16 or Above)

Second Texas DWI Offense
2nd Drunk Driving Conviction
Jail – From 30 Days to 1 Year
Jail – From 180 Days to 2 Years (Child under 15 in Vehicle)
Fine – Up to $4,000
Fine – Up to $10,000 (Child under 15 in Vehicle)
DWI Surcharge - $1,500 per Year for 3 Years
DWI Surcharge - $2,000 per Year for 3 Years (BAC .16 or Above)
License Suspension – From 180 Days to 2 Years
Ignition Interlock Device

Thank you much. What would happen with drivers license suspensions and probations, if i was convicted at the same time for both of them?

You mentioned jail time was minimum 96hours for first offense how does living out of state complicate that? Could i do house arrest, or serve my time at my local jail?

Last question and food for thought...I had an attorney here tell me I would have been better off saying I am an unlicensed driver (california resident), and not showing my Texas license, he said that would have likely kept california from reporting the dui to texas. Is that true?

Thanks a bunch guys

 

[ERAUPIKE]

Thank you much. What would happen with drivers license suspensions and probations, if i was convicted at the same time for both of them?

If you were convicted on the same day simultaneously? You would need to be in two places at the same time, which is impossible the last time I checked. One of your convictions will be considered your second DUI and you will be punished accordingly.

You mentioned jail time was minimum 96hours for first offense how does living out of state complicate that? Could i do house arrest, or serve my time at my local jail?

It really doesn't. When you go to court in California they will be happy to provide you with a cell for the duration of the mandatory 96 hours, or more. I am almost positive that the court is not going to try to do whatever is most convient for you. This is a punishment, remember?

Last question and food for thought...I had an attorney here tell me I would have been better off saying I am an unlicensed driver (california resident), and not showing my Texas license, he said that would have likely kept california from reporting the dui to texas. Is that true?

Thanks a bunch guys

You had an attorney tell you to lie to the court and commit a crime? I think you may be lying again. Do you really want to commit a felony to avoid a misdemeanor enhancement? Do you think that the courts in California won't have that information available to them? You are on record nationally as a licensed Texas driver.

Take responsibility for your actions. Get an attorney for each of your cases. (A real attorney, not the ones you keep referencing in your lies)

 

[buckhunt122]

I am not lieing? I have NO reason to lie to anybody here.

I have had an attorney in texas since the day i committed that crime.
Craig M. Greaves, Criminal Defense Attorney Bryan College Station, Brazos County, Texas > Home

I never said anything about a lawyer telling me to lie to the courts? A california attorney told me i would have been better off saying I didnt have a california drivers license. Maybe he said that thinking they confiscated my texas drivers license i dont know. It didnt make sense to me either thats why i asked.
DUI Lawyer | Jon Bryant Artz

 

[ERAUPIKE]

I don't know why you felt like you needed to provide the volunteers of this forum with misinformation. In my opinion, you have and nothing you can say at this point will change that opinion.

If you have legal council, seek their advice. They have access to details and information you have not provided anyone in this forum.