New DUI charges can’t be enhanced to felony if based on deferred prior to statute change
Enhancing DUI Charges
A recent Court of Criminal Appeals opinion held that prosecutors cannot enhance DUI charges to felonies if that enhancement is based on a deferred sentence successfully completed by the defendant before the statute changed in 2011.
In State v. Salathiel, the defendant pled guilty to Actual Physical Control in 2009 and successfully completed a two-year deferred sentence. He was again arrested in Oklahoma County for Driving Under the Influence on Feb. 22, 2012.
The State appealed the district court’s ruling granting a motion to dismiss. The court interpreted the language in 47 O.S. § 11-902, the DUI statute, and the changes made in 2011. At the time of the defendant’s first prosecution, a first DUI offense was a misdemeanor and a person faced felony punishment only if he had been “convicted” of a DUI offense within 10 years preceding the commission of a new offense. The 2011 amendment permits felony enhancements with not only convictions, but also any prior plea of guilty or nolo contendere to such an offense. It also provides that any guilty or nolo contendere plea shall constitute a conviction of the offense for the purposes of the statute for a period of 10 years following the completion of any court-imposed probationary term.
The court pointed out the law is retroactive and by redefining what counts as a “conviction” for enhancement purposes, the 2011 amendment changes the legal effect of conduct undertaken by the parties at some time in the past. After deciding no language in the amendment declared the statute to have retroactive effect, the court affirmed the district court’s decision.