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