Prior Convictions Are OK, Even if Obtained Without the Defendant Present - DUI Appeal Reports - 04/10/2016

The Twelfth District holds that collateral attacks of prior convictions during felony OVI cases are limited to violations of the right to counsel.

State v. Menkaus, 2016 Ohio 550 (12th Dist.).

February 16, 2016

Menkaus was charged with a felony OVI due to having five or more OVI's within the past twenty years.  She moved to dismiss and suppress, relying on an argument that a 2001 conviction was constitutionally infirm because it was obtained during a bench trial when she was not present.  On the day of the trial, she did not appear; however, her attorney requested to proceed without her presence, waived a jury trial, and held a bench trial at the end of which she was found guilty.

The Twelfth District reviewed that a limited right to collaterally attack a prior conviction exists when the state proposes to use the past conviction to enhance the penalty of a later criminal offense.  However, that right is limited to circumstances where the right to counsel has has been violated.  Because Menkaus had counsel, the Twelfth District denied her appeal.

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