DWI Conviction a Required Element of DWI 2nd Charge

Holding: Prior DWI Conviction is Element of DWI 2nd Charge

The 14th Court of Appeals holding in Oliva v. State will create a sea change in many DWI cases. The Court held, contrary to all previous precedent, that when a person is charged with a 2nd DWI, the state must prove that fact.

For criminal defense attorneys, the effect is obvious: the state will be able to, and will show that your client has a prior conviction for exactly the offense before the jury. What had been a key consideration, and primary focus for defense attorneys, is now possibly something we did "in the old days." Keeping a clients' criminal history out of the record during the guilt/innocence phase will, of course, remain vital, but in a trial for a client's 2nd DWI this may not be completely possible anymore.

For drivers, this should serve as a warning. If you have one DWI conviction, a jury may get to consider that when deciding if you committed a subsequent one. Past actions are usually not something a jury can use to decide a person's guilt, but after this holding, drivers may not get the benefit of the doubt after one DWI conviction.

It has been settled for some time juries must hear about prior DWI conviction during a felony DWI 3rd or More trial. The reasoning was more straight forward in those cases - without that evidence, why was this DWI charged as a felony? But this holding means that one strike, one DWI conviction, will follow you into court, and likely be considered by the jury in any subsequent DWI trial.

This holding is not binding outside of the counties of the 14th Court of Appeal, but undoubtedly prosecutors will press this issue statewide. Is is certain that the Court of Criminal Appeals will weigh in before too long, and we will know then whether the State of Texas, once again, makes misdemeanor DWI convictions much more punitive than most other misdemeanor convictions.