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Parsons v. State10/23/2000
__, 992 P.2d 260 (2000). We therefore overrule Parsons I to the extent that it reaches the contrary conclusion.
We further conclude that this procedure avoids the inherent difficulties in resolving the issue of the constitutional validity of the prior convictions at the probable cause stage, but still protects the rights of the accused. Our first practical concern is one of time. The preliminary examination generally must be conducted within 15 days. See NRS 171.196(2). Where the prior convictions are from outside the State of Nevada, it may be difficult for the State to obtain the records necessary to establish the constitutional validity of the prior convictions within this time period. We recognize that the 15-day period may be extended based upon a showing of good cause, NRS 171.196(2); however, we conclude that the constitutional validity of the prior DUI convictions is best dealt with at or before sentencing rather than delaying the preliminary examination and possibly extending the accused's pre-trial confinement unnecessarily.
Our second practical concern is with the nature of the preliminary examination. The preliminary examination is not intended to be a mini-trial. See State of Nevada v. Justice Court, 112 Nev. 803, 806, 919 P.2d 401, 402 (1996). Given that the constitutional validity of a prior conviction is subject to a different burden of proof than the typical burden at a preliminary examination and that the burden shifts depending on the nature of the prior conviction, we conclude that making this an issue at the preliminary examination stage of the proceedings on a felony DUI charge would unduly confuse and complicate the proceedings in the justice's court.
Finally, leaving the issue of the constitutional validity of the prior DUI convictions to be resolved by the district court does not deprive an accused of any rights. In fact, because the accused is facing a felony charge, he will be entitled to a jury trial in district court. See Blanton v. North Las Vegas Mun. Ct., 103 Nev. 623, 748 P.2d 494 (1987), aff'd, 489 U.S. 538 (1989). The facts concerning the prior convictions may not be considered by the jury in determining the accused's guilt or innocence. See NRS 484.3792(2). Thus, an accused is not prejudiced by allowing the State to proceed on a felony DUI charge without a determination at the preliminary examination that the prior convictions are constitutionally valid.
Although we conclude that the constitutional validity of the prior convictions should not have been addressed at the preliminary examination, we nonetheless conclude that Parsons' conviction must be reversed. In particular, we conclude that under the unique circumstances of this case, the district court erred in permitting the State to file an information by affidavit following Parsons' discharge upon preliminary examination. NRS 173.035(2) is "'a safeguard against egregious error by a magistrate in determining probable cause, not a device to be used by a prosecutor to satisfy deficiencies in evidence at a preliminary examination, through affidavit.'" State of Nevada v. District Court, 114 Nev. 739, 741-42, 964 P.2d 48, 49 (1998) (quoting Cranford v. Smart, 92 Nev. 89, 91, 545 P.2d 1162, 1163 (1976)). Here, the State relied on evidence that was not provided to the justice's court to establish the constitutional validity of the Beatty conviction. The State cannot use an information by affidavit in this manner. See id. Given the prior proceedings in this case and our decision in Parsons I, the State had ample time and opportunity to obtain the necessary documentation to demonstrate the constitutional validity of the prior convictions and should have been prepared to do so at the prelimina
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