THE THIRD ANNUAL DUI LITIGATION UPDATE

DUI DEFENSE:
A NEW START FROM AN OLD CHIEF

AUGUST 21, 1998
THE OLD CAPITOL INN - JACKSON, MISSISSIPPI

Your client has just been sentenced to prison on a third offense felony DUI because the government introduced his two previous convictions as an element of the offense before the jury. The Mississippi Supreme Court in the recent decision of Williams v. Sate, 1998 WL 133809, dealt with the issue of enhanced punishment in the third offense DUIs from a different perspective. Specifically, the Court considered whether the lower court erred in overruling Williams' motion for a bifurcated trial, thereby allowing the two underlying DUI misdemeanors to be argued to the jury as elements of the DUI third offense. Williams, at p.19. Defense counsel is now faced with the prospect of having juries hear the two previous DUI convictions presented as part of the prosecution's case in chief, a prospect which would be as unwelcomed by the defense as much as it would be welcomed by the state. The purpose of this article is to explore a position that could be taken by defense lawyers in protecting their client's constitutional rights when defending DUI cases.

Historically, Mississippi has dealt with crimes requiring enhancement of the punishment under Rule 11.03 of what is now the Uniform Rules of Circuit and County Court Practice (URCCC). The Rule provides:

"In cases involving enhanced punishment for subsequent offenses under state statutes:

1. The indictment must include both the principal charge of previous convictions. The indictment must allege with particularity the nature or description of the offense constituting the previous convictions, the state or federal jurisdiction of any previous conviction, and the date of judgment.  The indictment shall not be read to the jury.
2. Separate trials shall be held on the principal charge and on the charge of the previous convictions.  In the trial on the principal charge, the previous convictions will not be mentioned by the state or the court except as provided by the Mississippi Rules of Evidence.
3. If the defendant is convicted or enters a plea of guilty on the principal charge, a hearing before the court without a jury will then be conducted on the previous convictions."

This Rule had great application in DUI defense work for trial. Anyone facing a felony charge and having two previous convictions, was assured that the jury would not convict him based upon what is generally considered to be the "bad person" or "bad character" allegation. That is to say that a person having been convicted of two previous offenses was a bad person, or that, because of his status as a previous offender, he was more likely to commit another offense.

The court, however, in the Williams case, addressed this proposition of prior convictions as an element of the third offense DUI and first dealt with Miss. Code Ann. §63-11-30 (7), which is the enhancement of the punishment section of the DUI Statute. The argument in Williams was that the court should have followed Rule 11.03 of the URCCC, which requires bifurcation in enhanced punishment situations. In Williams, the court stated specifically that the underlying misdemeanors are now statutorily mandated as an element of the offense in a felony DUI trial.

The Supreme Court in discussing this point dealt first with its ruling in
Page v. State, 607 So2d. 1163 (Miss. 1992), where the Court held that each prior conviction is an element of the felony offense, and each must be specifically charged and proved. Later, in McIlwain v. State, 700 So2d. 586, which appeared to overrule Page, the Court retracted part of this position by saying it could not completely overrule its holding in Page. The language quoted in the Supreme Court opinion was as follows:                         

"Today we specifically overrule Page v. State, 607 So2d. 1163 (Miss. 1992) and Ashcraft v. City of Ridgeland, 620 So2d. 1210 (Miss. 1993), to the extent that they interpret the statute to require that the indictment must specifically show a previous conviction of a DUI, first offense, to be convicted of a DUI, second offense, and a conviction of a DUI, second offense, prior to being convicted of a DUI, third offense."

The court went on to explain that its holding in Page was two-fold. First, the Court stated that each prior conviction is an element of the felony offense. Page, 607 So2d. At 1168. Second, the Court held that each prior conviction must be specifically charged, McIlwain, 700 So2d. at _____. The Supreme Court then went on to say that, while McIlwain appeared to have overruled Page, the first part of the Court's holding in Page is apparently still good law. In effect, the Supreme Court is saying each prior conviction is still an element of the felony offense. Page, 607 So2d. at 1168.

Thus, in the Williams case, our Supreme Court held the state has to prove the prior convictions in order to meet its burden under Miss. Code Ann. Section 63-11-30(2)(c), and to obtain a conviction for felony DUI. This position is supported by the court's decision in State v. Weaver, 1997 WL 70357, an unpublished decision.

In Weaver, the Mississippi Supreme Court took an interesting position with regard to the making of a felony DUI charge. Specifically, the court plainly read the Miss. Code Ann. §63-11-30 (7), which requires two previous DUI convictions within a five year period to be shown in the DUI indictment in order to charge the defendant with a felony DUI.

This provision or ruling relies on the Supreme Court's view of what constitutes the elements of a felony DUI charge as defined by the legislature. This is important because once defined by the legislature, it is exclusively a legislative function as a matter of constitutional law. Weaver, 1997 WL 70357 at 4.

The Supreme Court then went on to say that the lower court did not commit error by denying Williams' motion for a bifurcated trial. As a result, the jury was allowed to hear evidence of Mr. Williams' previous DUI convictions, and subsequently found him guilty. This method of proof now available to the prosecution will have state-wide application to the prosecution of DUI felonies.

The first position a criminal defense lawyer should take is to ask for a bifurcated hearing, pursuant to Rule 11.3 of the URCCC. The Williams case does not require a court to grant a defendant's motion to bifurcate, but does not prohibit the court from doing so.

As an alternative, defense counsel should move to suppress previous DUI offenses by attacking errors in the waivers to plead guilty and court abstracts. Arguments to waivers of rights are used to show the plea was not knowingly and voluntarily made and should not now be used to enhance the penalty. This attack follows the traditional case law available in Gideon v. Wainwright, 372 U.S. 335, Boykin v. Alabama, 395 U.S. 238
and Brown v. Texas _____ U.S. _____. Should one of the elements (prior convictions) of the DUI third offense fail, the charge should be dismissed since there is no provision for a reduction to a second offense.

The last tactic the defense lawyer could rely upon is to stipulate to previous offenses in order to block their presentation to the jury in the prosecution's case in chief as set out in the relatively new case out of the Supreme Court titled Old Chief v. United States, 519 U.S. 172 (1997).

In Old Chief, the concern by the defendant of the government's intent to use his previous crime to play on the jury's emotion was sought to be cured by his offer to stipulate to his prior felony conviction. His conviction was alleged as an element in the case against him, and he hoped that by the offer of stipulation, the need for the prosecution to place the name and nature of his past conviction (assault with bodily injury) as evidence to the jury would be limited. This was done in an attempt to limit the introduction of this information to the jury in his current charge, because he was afraid that they would simply convict because he was a "bad person."

The stipulation offered by Old Chief was that he had been previously convicted of a crime involving imprisonment for a term of more than one year. The motion was drafted such that it became a judicial confession, waiving all elements of jurisdiction and proof. The prosecution, upon receiving this motion, argued to the judge that the government had a right to try its case in whatever manner it saw fit and should not be hamstrung by forcing it to select this stipulation as a method of proof.

In a majority decision, the court held "the evidentiary nature of his previous crime should be viewed under Rule 403 of the Federal Rules of Evidence." Old Chief, 519 at 172. According to our Supreme Court, "unfair prejudice under the Rule is the capacity of evidence to lure the fact-finder into declaring guilt on a ground different from proof specific to the offense charged" Id.

When this case is applied to a felony DUI, its importance is clear and unambiguous. The tendency of a juror in hearing two previous convictions of a DUI as part of the proof would place the government in a position to lure the jury to a finding of guilt based on the defendant's bad character and not proof specific to the offense charged. In so doing, we would create a risk that the jury would convict for crimes other than that charged or, if uncertain, to punish a DUI offender because he is a bad man and probably "deserves" a conviction anyway.

The other issue raised by Old Chief, as it applies to DUI, is as a previous DUI offender, you are portrayed by the government as having a history as to enrich the likelihood of a conviction due primarily to the existence of like convictions of DUI and not in the facts of this particular DUI charge.

In opposition, it has been successfully argued that the government is entitled to prove its case by the evidence of its own choice, and that a defendant may not stipulate his way out of the full evidentiary effect of the evidence. While the Supreme Court fully respects the government's position and recognizes that some evidence has a certain force and the full narrative of the evidence is entitled to be given its weight, the court in Old Chief feels that Rule 403 is controlling authority for use of previous convictions as proof in a current offense when an offer to stipulate to previous offenses is made and, that given the chance, the government would rely on an emotional plea to the jurors as to the character of the offender, and not to the specific evidence as proof of the current criminal charge.

The court further found there is simply no difference between evidence which is gained from a defendant's stipulation about his/her record and the documenting by the prosecution of the same record. However, the prosecution would certainly want to get previous DUI convictions before the jury in all cases for the obvious reasons as set out here.

As is clear in DUI cases, the elements under 63-11-30(c) of two previous offenses proved before the jury would certainly put the defendant in a situation where that jury would convict out of a feeling that he was likely to commit that kind of crime again and would unfairly prejudice his ability to defend himself on the current set of circumstances. The decision by the Supreme Court in Old Chief, is an attempt to limit the prosecution and their availability to produce evidence before a jury which would be more prejudicial than probative. After all, if your client effectively waives all argument to his previous convictions by stipulation, the only reason the prosecution could possibly have for bringing those in would be to unfairly prejudice the jury against him.

It is clear that Old Chief can become a powerful weapon in your arsenal for DUI defense. No longer does the state have the unfettered ability to present its case in a manner that it so chooses with regard to previous offenses. Even though there are going to be some limitations to this stipulation, it is strongly urged that the readers of this article read and consider OldChief v. United States as a way to help persons charged with felony counts of driving while under the influence.