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I have a prior DUI in another state. Do I need to disclose this to the court or to the prosecutor?

The answer, as with many legal questions, is that “it depends”.

Having a prior DUI can greatly impact the outcome of your pending driving under the influence case. A case in which you may not see a day in jail can easily become one in which a jail sentence is in fact required due to mandatory minimum laws, once your prior offense is known to the prosecution and to the court.


The first step is finding out what the prosecution already knows. Your DUI defense attorney will request what is called the discovery in your case. The discovery will include your driving history and also your criminal history. This is the same information a prosecutor would have to use against you at a trial. You will know what the prosecutor knows after reviewing this information. You will be faced with one of three scenarios: the discovery accurately reflects the conviction in your earlier drinking and driving case, the discovery reflects you were charged but does not reflect that you were convicted, or the charge is not reflected at all.


Either a prior conviction can be agreed to or stipulated by the parties, or the parties can disagree as to whether or not there is a prior conviction, at which point it becomes the prosecutor’s job to prove the prior conviction should they wish that prior case to be a basis of sentencing. Your attorney cannot lie to the court. If the attorney knows that you have a prior DUI case and that you were either convicted of DUI or DWAI in that case, they cannot make an affirmative representation to the court that you have never been previously convicted of a drinking and driving offense. There is, however, a difference between knowingly conveying a falsehood and failing to convey a prior where your client tells you there “maybe” was a prior, but there is no certainty as to what the outcome was, or even any certainty as to whether or not there were charges filed in the first place.


Another factor to consider is that sometimes the information in discovery as it pertains to out of state criminal history is either unclear or incomplete. While it is not your obligation under most circumstances to supplement the record, if you plead guilty as a first drinking and driving offense and are immediately sentenced to probation, you will then go over to probation, and probation will run their own nationwide criminal history on you. If they turn up any prior DUI cases that were not disclosed to the court at the time you entered a plea, they will send you back to court for re sentencing.


In some jurisdictions, it is a routine practice of the sentencing judge to ask the defense attorney directly, or the defendant directly if he does not have a DUI defense attorney, whether or not he has any prior convictions for drinking and driving. There is some difference of opinion on how to deal with this particular situation. It is thought by some lawyers that this situation presents an opportunity to assert the fifth amendment right against self incrimination. It is thought by others that such tactics will do little to help your case and in fact many have the opposite effect.


The bottom line is, if you do not know for sure what the outcome of your prior drinking and driving case was, and the discovery does not answer that question, it is not your obligation as the defendant to prove that for the prosecutor. The prosecutor has the job of proving prior offenses where they are not agreed to by the parties. That can be done by the provision of a driving record reflecting conviction for DUI, or an authenticated copy of court disposition from whatever court handled that DUI case.


As always, if you face a charge of DUI or DWAI, it is always best to consult with a defense attorney to assess what your next best move is.


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