DWI Second Offense Reduced to a First, Thanks to Bad New York Prior


I don’t often talk about specific outcomes in court cases on our web site because every case is very different and I don’t like to mislead clients about what possibilities may happen in your case. However, some outcomes really illustrate good legal issues and I like to explain those from time to time.

A recent DWI second offense case that I handled in the city of Fredericksburg illustrates a really solid legal issue that any attorney should be checking for. If you’re charged with a second offense DWI, your attorney absolutely must get a certified copy of the prior conviction. This is important because the actual paperwork where the judge convicted you for that prior offense could be defective, and, if the paperwork is defective, the offense is no good for a DWI second offense case in Virginia.

My client was charged with a second offense DWI here in Virginia, and the prior was from New York from a number of years ago. When we obtained the actual certified copy of the original case in New York, there was a defect in the paperwork.

What was the defect? The judge never actually signed anything to convict the client of DWI.

This seems like a little formality but it’s actually incredibly important. The Courts routinely hold that they only speak through their actual orders, so if the court doesn’t write it down, basically it was never ordered, and for an order to be valid, the judge has to sign it.

In our case, the judge had checked the boxes, and it appeared to be a DUI conviction; however, the blank where the judge was supposed to sign it was, in fact, blank. It was empty, so there was no judge signature, which I argued made the order invalid.

In this case we didn’t have to try the issue in front of the judge at all. The prosecutor agreed that the second offense would be reduced to a first offense because of the defective prior. Note the prosecutor in this case didn’t even have a copy of the actual prior himself, so if we had trusted the prosecutor to bring it to court, we would never have known about this issue. The criminal history report that the prosecutor had did show the New York prior and, if we had not objected to that issue and had our own proof on the issue, the prosecutor probably could have used that to prove a first offense in New York which would’ve caused the client to have a second offense conviction here in Virginia.

This is but one little example of a solid defense that works. This doesn’t apply to every case, but if there is a defective issue on a prior offense for a DUI or even a driving while suspended case, then it can have great affect in reducing your current charge from a second offense to a first.

If you’re charged with a DWI second offense, we need to talk immediately. It takes time to get these prior records from other courts. We have to track down which court it comes from, we have to comply with their procedures to get the actual certified copies, and we need to get started on that ASAP to see if we can find a defense against at least the prior in your DWI second offense case. Get started today by requesting my free book about DWI defense or calling the office.

Photo by: Justin in SD

Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then, I have earned over 600 5-star reviews from happy clients on Google, Yelp, and Facebook. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

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