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LOVELL v. STATE10/22/1984
The nine appellants were each found guilty of violating the Omnibus DWI Act of 1983. The sentences of appellants Carson, Corkran, Fluiatt and Hawkins were enhanced because each had a prior conviction. The other appellants were sentenced as first offenders. These appeals come to this court under Rule
29(1)(c) and are consolidated pursuant to Rule 3, A. R. App. Pro. because common questions of law are involved. We affirm the convictions of those appellants sentenced as first offenders but reverse the convictions of those given enhanced sentences.
Over the objections of appellants Carson, Corkran, Fluiatt and Hawkins, the trial court admitted certificates of prior convictions into evidence and, on the basis of the prior conviction documents, punishment was enhanced. None of the documents reflect that appellants were represented by counsel at their prior trials. The ruling was erroneous. A prior conviction cannot be used collaterally to impose enhanced punishment unless the misdemeanant was represented by counsel or validly waived counsel. Baldasar v. Illinois, 446 U.S. 222 (1980); State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984). Waiver of counsel may not be presumed from a silent record. McConahay v. State, 257 Ark. 328, 516 S.W.2d 887 (1974). Accordingly, we reverse and remand the cases of these four appellants.
Since appellants Carson, Corkran, Fluiatt and Hawkins will be retried, we will also address another point of this appeal which will again arise at their new trials. These four appellants' prior convictions were for violating the older statutes relating to driving while under the influence of intoxicants, Ark. Stat. Ann. 75-1027 through 1031.1. Under these older statutes, there was a presumption that one was under the influence of intoxicants if his blood alcohol content was .10% or more. The 1983 statute has made driving with a blood alcohol content of .10% or more illegal, per se. Appellants argue that there is a difference between driving while under the influence of intoxicants and driving while intoxicated, and that a prior conviction for driving while under the influence should not be counted as a prior offense for driving while intoxicated. There is no merit in the argument. Both laws declare that drivers with a blood alcohol content of .10% or more constitute a threat to public safety. The legislative intent under the Omnibus DWI Act of 1983 was to enhance penalties by using convictions under the older act. 75-2501(b) states in pertinent part:
. . . all pleas of guilty and nolo contendere and all findings of guilty of driving while intoxicated within three (3) years prior to the effective date of this Act shall be counted in determining the number of prior offenses for the purposes of enhancing the penalties provided by this Act . . .
The above part of the act uses the word intoxicated rather than under the influence. However, 75-2502 (a) defines intoxicated as "influenced or affected by the ingestion of alcohol . . ." The emergency clause also demonstrates the legislative intent;
It is hereby found and determined by the Seventy-Fourth General Assembly that the act of driving a motor vehicle while under the influence of intoxicating alcoholic beverages or drugs constitutes a serious and immediate threat to the safety of all citizens of the State . . . (emphasis added.).
Therefore, upon retrial, previous convictions for driving while under the influence of intoxicants may be used as prior offenses for enhancement purposes under the 1983 act.
All appellants raise other points of appeal. They contend that the failure of the state to preserve samples of their breath tests for later testing constitutes a
Page 1 2 3 4 Arkansas DUI Attorneys
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