Collaterally attack a previous OWI conviction
A collateral attack is when you challenge the validity of earlier criminal OWI conviction. This is referred to as a collateral attack because you are not directly appealing the earlier conviction, but are doing so in the context of a later prosecution. A collateral attack is only allowed if you were denied the right to counsel at the time of the earlier conviction. Fighting an OWI third or higher this way is not always available, but it can be a big part of a successful OWI defense.
When is a collateral attack available?
You may collaterally attack a prior conviction when that conviction is being used to support guilt or enhance the punishment associated with your current charge. This applies to OWI convictions because the penalties for an OWI increase substantially with each previous conviction. Because a collateral attack is limited to whether you were denied the right to counsel, you cannot attack an OWI 1st. The earlier conviction must have been a criminal conviction for the right to counsel to attach. Therefore, second and subsequent OWI convictions may be challenged if you did not have the assistance of counsel.
I didn’t have an attorney for a previous OWI, does that mean that I will be successful in attacking a previous conviction?
In order to have a successful collateral attack you must prove to the court that you did not know or understand the information which should have been provided to you in your prior case, and therefore, you did not knowingly, intelligently, and voluntarily waive your right to counsel. You as the defendant have the burden of establishing these facts. If you and your attorney met this burden, then an evidentiary hearing will be held and the state bears the burden of proving otherwise.
What is the effect of a successful collateral attack?
If you are charged with an OWI 4th offense and are successful in attacking one or more of your previous OWIs, your current OWI will be treated as an OWI third or second if you attacked two OWI charges. A successful collateral attack does not erase your prior conviction. It only prevents the state from using it as a penalty enhancer in your current case. This will significantly reduce the penalties you face and in some circumstances reduce your charge from a felony to a misdemeanor.
If you are charged with an OWI third or greater and believe that you did not knowingly, intelligently, and voluntarily waive your right to counsel on earlier convictions, contact Anderson & O’Connell, S.C. to start your defense today.
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