If you are arrested and charged with a 3rd DWI, it is my understanding that the state must prove the two previous convictions. What are some of the ways the state would not be able to prove the previous convictions?
The more appropriate question is what ways can the State prove the prior convictions. This is the subject of much legal debate and the judges I have dealt with it in front of are nothing if not inconsistent. The case law traditionally gives the State wide latitude, although a recent case tightened the reigns a little. Your attorney is going to have to ask the DA to produce the priors, then review them for sufficiency once he receives them. However, nothing requires the DA to produce this evidence prior to trial, so you may find yourself boxed in on this issue. Your question is important and much more complex than you realize. Hire an attorney experienced handling DWIs, and they will walk you thru it.
I have been representing people charged with DWI in Austin, Texas for 20 years and there is not a very simple answer to your question. The factors would generally be whether the priors occurred in state or out of state and how long ago they occurred.
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The State can have trouble proofing your prior conviction, especially if it is long ago and/or in a distant jurisdiction. An experienced DWI attorney looks at the records as soon as possible before trial. Sometimes it is available from the DA and other times it is necessary to get them from the other jurisdiction. Their are various technical matters to be reviewed, such as whether it has a fingerprint of other positive ID on the record. This is sometimes successful, but usually not.
Typically, prior convictions are offered at trial or sentencing by way of certified copies of the conviction from the clerk of court where you were previously prosecuted. These certified convictions are admissible into evidence against you at trial. It's best to review prior convictions for accuracy well before trial. Sometimes a 3d DWI can be reduced down to a misdemeanor offense because the DA cannot produce sufficient proof of the prior conviction.
The Apprendi line of cases make it clear that at least on the Constitutional (US) level, the State does not have to prove the prior conviction beyond a reasonable doubt. Typically, most states have enhanced penalties for multiple DUI convictions and once the State proved the DUI, it need only present evidence (certified record of prior conviction) to satisfy their burden.
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