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Marsha411JD, Lawyer
Category: Criminal Law
Satisfied Customers: 20124
Experience:  Licensed attorney with 29 yrs. exp. in criminal law
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Can I be convicted of a "DWAI/w 1 Prior" if I took it to

Customer Question

Can I be convicted of a "DWAI/w 1 Prior" if I took it to trial, got convicted of DWAI, but prosecution did not bring up my "Prior"? In other words, if it was not proven (in any sense/not even in discovery), can I still be sentenced as if I have one prior DUI?
Submitted: 11 months ago.
Category: Criminal Law
Expert:  Marsha411JD replied 11 months ago.


The elements of the crime of DWAI do not require the proof of prior convictions, so the prosecutor doesn't carry any burden of proving that issue in the case in chief. Once the conviction of DWAI is entered, then there is a sentencing recommendation and report based on the defendant's criminal record. This is a matter for judicial notice, not something the prosecution has to prove. If the defense attorney challenges the accuracy of the criminal record presented at sentencing, then that would be when the State would have to provide a transcript and proof of the prior conviction. The judge would then decide whether the conviction presented as a prior for purposes of sentencing qualifies. If so, then they use that to sentence the defendant based on a DWAI with a prior conviction.

So, again, the prior conviction is not part of the elements of the DWAI crime and are not addressed in the case in chief prior to conviction of the DWAI. The prior only goes to sentencing.

Please feel free to ask for clarification if needed. If none is needed, then if you could take a moment to leave a positive rating in the box above, I will receive credit for assisting you today. Thank you

Expert:  Marsha411JD replied 10 months ago.

Hello again,

I wanted to touch base with you and make sure that you did not have any follow up questions for me from the answer I provided to you on the 28th. For some reason, the Experts are not always getting replies, or ratings (at the top of the question/answer page you are viewing or in the pop up box for this question), which is how we get credit(paid by the Site) for our work, that the customer thinks have gone through. In your case I received neither.

Please keep in mind that I cannot control the law or your circumstances, and am ethically bound to provide you with accurate information based on the facts you give me even if the news is not good. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the Site administrator. Please note that Site use works best while using a computer and using either Google Chrome or Firefox.

In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue,if needed. You can bookmark my page at:

Thank you.

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