You Make The Call

I’m especially interested in what my non-lawyer readers would do with the following situation, as I don’t think a law degree gives anyone an edge here.

First, the defendant is guilty of driving under the influence. Let’s say his blood alcohol content was three times the legal limit and that when first stopped, the defendant almost struck a police officer when pulling over to the side of the road.

Second, the defendant has three prior DUIs. One in 1981, one in 1983, and one in 1997.

Third, here’s the range of penalties for DUI:

Upon first conviction, a person violating this section shall be punished by imprisonment in the county or municipal jail for not more than one year, or by fine of not less than six hundred dollars ($600) nor more than two thousand one hundred dollars ($2,100), or by both a fine and imprisonment. . . .

On a second conviction within a five-year period, a person convicted of violating this section shall be punished by a fine of not less than one thousand one hundred dollars ($1,100) nor more than five thousand one hundred dollars ($5,100) and by imprisonment, which may include hard labor in the county or municipal jail for not more than one year. The sentence shall include a mandatory sentence, which is not subject to suspension or probation, of imprisonment in the county or municipal jail for not less than five days or community service for not less than 30 days. . . .

On a third conviction, a person convicted of violating this section shall be punished by a fine of not less than two thousand one hundred dollars ($2,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment, which may include hard labor, in the county or municipal jail for not less than 60 days nor more than one year, to include a minimum of 60 days which shall be served in the county or municipal jail and cannot be probated or suspended. . . .

On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand one hundred dollars ($4,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment of not less than one year and one day nor more than 10 years. . . . The minimum sentence shall include a term of imprisonment for at least one year and one day, provided, however, that there shall be a minimum mandatory sentence of 10 days which shall be served in the county jail. . . .

Finally, the twist:

A prior conviction within a five-year period for driving under the influence of alcohol or drugs from this state, a municipality within this state, or another state or territory or a municipality of another state or territory shall be considered by a court for imposing a sentence pursuant to this section.

So, according to the statute, is this the defendant’s first, second, third, or fourth DUI? And what would be the appropriate penalty?

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12 Comments on “You Make The Call”

  1. Sailer Says:

    Very poorly written law. On first reading I assumed that the 5 year time frame applied to all incidents. But the law doesn’t say that. If I was a judge I’d assume that the 5 year time frame existed for all incidents and call it a first conviction. But if you strictly read the law as written it is a 4th conviction. There should be a law against writing such a poorly written law. It is easy to see why lawyers and judges have such a hard time understanding what a law is supposed to mean. I’d probably not impose maximum penaltys since even though it’s a 4th DUI it’s been 10 years since the last DUI. Maybe either the max for a first offense or a minimum for a 4th offense. Being liberally minded I’d assume that he was trying to control his drinking and just had a lapse…of course he might have just been lucky for 10 years. ESP would be a great thing for a judge to posess.

  2. wheeler Says:

    “There should be a law against writing such a poorly written law.”

    this one’s a real doozy.

  3. bamalaw Says:

    Felony DUI’s in some counties basically on hold right now and not proceeding to trial b/c of this law. Waiting on case being appealed right now.

  4. wheeler Says:

    yup. but here in jeffco it’s full steam ahead. probably because there would be way too many to wait.

  5. Del Says:

    Speaking as a non-lawyer, it does look like this was intended to wipe the slate clean every five years. The five-year period is mentioned in the paragraph about the 2nd conviction as well as in the final paragraph. I suppose they wanted to draw a distinction between the habitual drunk and somebody who just goes on a tear every six years or so. I’d love to know how they arrived at 5 years as the appropriate length of time.

  6. Mark Says:

    It appears to me to be a fourth conviction. The last section does not appear to me to say that DUI convictions prior to five years shall not be considered, only that those within five years shall be considered. But I agree: poorly written law.

  7. Del Says:

    If they didn’t intend to limit consideration of prior offenses to within the 5 years preceding the current offense, then why mention 5 years at all? To write “Oh, and don’t forget to check the most recent 5 years when you’re checking the rest of the record” doesn’t make sense. Is there any other kind of offense where only the last five years matter?

    How do they fix this kind of thing, anyway? Do they go back to the records of the discussion (if any exist) when the law was written and try to determine intent? How old is this law or statute or whatever the correct word is?

  8. Julie Slama Says:

    I’m saying 4.
    It’s relatively clear, except for the fly in the 2nd conviction rule about the 5 yrs. “On a second conviction -I- within a five-year period”, can be read separately–one for sentencing, one for a simple count.
    Same with the ‘twist’. It’s really about sentencing guidelines.
    As for sentencing, it’s obvious the guy is a habitual drunk driver. Have they ever done studies that estimate how many times you can drive drunk before getting caught? DUI is reckless endangerment of human life, but like a lot of people it’s hard to put someone away for a long time because something MIGHT have happened…doesn’t feel like justice, somehow.
    Still, he’s a scofflaw–so I’d give him 90 days and $5,000. (plus a Class C AND MANDATORY alcohol couseling.

  9. Loretta Nall Says:

    Thats a good question wheeler. I was in the Judiciay cmte meeting when this bill was debated and passed with a favorable report. I tell you….Marcel Black fought hard to get that five year provision in there…..kinda makes me wonder why. If I understand this law statute then this would be your client’s first DUI because it has been well over 5 years since the last one.

  10. Arduous Says:

    Its his first conviction because the judge cannot know the intent of the lawmakers so the lack of clarity benefits the defendant.

  11. Baudrillard Says:

    I read the 5-year recidivist provision as applying ONLY to subsequent convictions within a five year period. In other words, it doesn’t operate to erase prior convictions more than five years earlier; otherwise, the provisions regarding third and fourth or more convictionw ould also have to contain a qualifying clause for the time period as well.

    It is your client’s fourth conviction. Poorly written law, and I disagree with Arduous that a judge cannot know the legislative intent — it is clearly to punish more harshly repeat offenders, not reward repeat offenders who manage to go more than 5 years without getting caught. At least that’s how the Supremes will read the legislative intent.

  12. Steve Jones Says:

    Being a retired police sergeant, you would think I would be pushing for the forth conviction. The “twist” you listed is from Title 32-5A-191(o). Since it states “prior conviction” without numeration within a five year period, this paragraph, I believe, would make the five year period applicable to ANY conviction from any U.S. territory, state or municipality. Withstanding no record in other states or territories, it looks like this is your client’s first offense.


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