The Utah Court of Appeal issued the decision in State v. Jimenez-Wiss. Defendant was charged with Felony DUI based on prior convictions. One of the convictions involved a case where Defendant was not represented by an attorney and no evidence was produced that Defendant waived the right to have an attorney. The District Court gleaned from the evidence that Defendant did intend to waiver the right to an attorney. Utah Court of Appeals disagreed.
The holding states:
“Because the State failed to meet its burden, the district court erred when it denied Jimenez-Wiss’s motion to strike the felony enhancement of her 2012 offense. We therefore vacate Jimenez- Wiss’s conviction on that offense and remand this matter for further proceedings.
CONCLUSION
¶27 Once the district court found that Jimenez-Wiss had produced evidence that she did not knowingly waive her right to counsel prior to her 2008 DUI conviction, the State bore the burden of establishing that she had waived that right. The only evidence before the district court—the Plea Document—does not demonstrate waiver by a preponderance of the evidence. Moreover, the multiple omissions in the Plea Document raise doubts concerning Jimenez-Wiss’s intentions—doubts our supreme court has held must be resolved against a finding of waiver. The district court therefore erred in denying Jimenez-Wiss’s motion to strike the felony enhancement of her 2012 DUI charge. We vacate Jimenez-Wiss’s conviction on the 2012 charge and remand this matter for further proceedings.”
I have been defending people accused of DUI since 1998. I have defended people from all walks of life including clergy, engineers, lawyers, doctors, teenagers, and the average hard working person. I go all over Utah to defend people that need a defense.
A physical control conviction does not count as a “prior offense” for purposes of enhancement. This principle is spelled out in case law and in statute. R.C. 4511.181 sets forth the offenses that count as prior convictions. It does not list a violation of physical control (R.C. 4511.194) as a predicate offense. It does not matter if the prior conviction was charged under R.C. 4511.194 or as a violation of a municipal ordinance. This is set forth at R.C. 4511.182(A) and in State v. Schultz, 2008-Ohio-4325 (Ohio Ct. App. 8th Dist. Cuyahoga County 2008).