Publication Regarding Vacating Prior DWI Convictions

Hello again. The topic of vacating prior DWI convictions comes up frequently. Most of the time these involve defendants who did not have a lawyer but pleaded guilty at their arraignments without a sound understanding of the rights they were waiving and without understanding the ominous future ramifications of their pleas. Sometimes we also see cases where the defendant had a lawyer who didn't do an effective job. I have printed blow a copy of an article I wrote that was published in the January/February 2007 edition of The Champion magazine on this topic.
More information on these types of cases is available at my web site:


Collateral Attacks on Prior DWI Pleas
By Mark Stevens

The Legal Framework for Undoing the ‘Work’ of Ineffective Counsel

The penalties for subsequent DWI convictions continue to become harsher. The danger of enhanced collateral consequences for drivers convicted of DWI has grown. Many drivers have suffered prior convictions after receiving sloppy advice to plead guilty in cases that should have been tried and for which the driver received no real benefit by pleading guilty. As the collateral consequences for DWI convictions increase, you may see an increase in the frequency of clients who approach you and ask that you try to undo the work of dump-truck lawyers who convinced them to get convicted. This article examines the legal framework for a post-conviction attack on a prior DWI plea based on the ineffective assistance of counsel.

Hypothetical Case Scenario:
A driver is arrested for DWI in New Hampshire. He refuses breath testing. New Hampshire has a 10-year look-back period for DWI convictions. The evidence consists of the usual goulash of observations in a refusal case: an odor of alcohol, slurred speech, an admission by the driver of drinking three beers, and unremarkable field sobriety tests. A DWI trial lawyer would read the police report with optimism about winning the case. The driver is licensed in Massachusetts. Unfamiliar with the area where he was arrested, the driver looks through the local phone book and finds a lawyer who advertises that he handles DWI cases (as well as most other types of legal work). The driver hires the lawyer to represent him. The prosecutor sends the driver’s lawyer a copy of the driver’s Massachusetts driving record which reveals four prior DWI convictions in Massachusetts. All four convictions are outside the 10-year look-back period for DWI convictions in New Hampshire. The driver arrives at his first court appearance. His lawyer advises him that he has negotiated a deal with the prosecutor: if the driver pleads guilty, the lawyer assures him that he will “get the minimums” for a DWI first offense, namely a 90-day loss of his right to drive in New Hampshire. The driver asks his lawyer what Massachusetts will do to him if he takes the deal due to his four prior Massachusetts convictions. His lawyer erroneously tells him that Massachusetts will reciprocate by revoking his license for the same 90 days that New Hampshire will if he takes the deal. Unbeknownst to the driver (and his lawyer), Massachusetts does not have a look-back period and counts any prior DWI convictions, no matter how old, for the purposes of license revocations. Massachusetts has a lifetime license revocation for a fifth DWI conviction. The driver pleads guilty based on his lawyer’s representations about the 90-day license loss. A month later, he receives a notice from the Massachusetts Registry of Motor Vehicles. It informs him that his right to drive has been revoked for the rest of his lifetime without any right to appeal or any right to ever get a hardship license. He will never legally drive again.The driver asks you to try and undo all this.

The following is an overview of the current Supreme Court legal framework to collaterally attack the horrible consequence described in the scenario. I have also included some positive decisions from state courts and federal circuit courts of appeals that have favorably resolved collateral attacks on convictions spawned by the erroneous advice of lawyers regarding collateral consequences.

The Test of Strickland and Hill

In Strickland v. Washington, the U.S. Supreme Court articulated a two-part test that a defendant must meet in order to obtain post-conviction relief based upon a claim of ineffective assistance of counsel. First, the defendant must prove that his counsel’s performance fell below an objective standard of reasonableness. Second, if the reviewing court finds that the defendant can prove that counsel’s performance was constitutionally ineffective, then the defendant must prove that counsel’s deficient performance resulted in prejudice. This second prong of the Strickland test requires a showing that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.

In Hill v. Lockhart, the Supreme Court applied Strickland to convictions resulting from a guilty plea as opposed to a trial. The Hill Court reformulated Strickland’s second prong, the “prejudice” prong, to require a showing by the defendant “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” When read together, these two decisions mean that in order for the reviewing court to vacate a prior conviction it must find that: (1) defense counsel’s performance fell below that of an ordinary fallible attorney; and (2) there is a reasonable probability that, but for his attorney’s error(s), the defendant would not have pleaded guilty and would have insisted on going to trial.

Application of Strickland and Hill to Claims Arising From Erroneous Advice.

In our hypothetical case, the lawyer gave an affirmative misrepresentation regarding the collateral consequences of a conviction when asked by a defendant intelligent enough to inquire about it. Other cases may involve situations where counsel simply fails to advise the defendant at all regarding collateral consequences, which will present a steeper hill to climb for post-conviction counsel. However, the steep hill is not an insurmountable climb. In People v. Pozo,6 the Colorado Supreme Court ruled that the failure of Pozo’s attorney to learn even the basic collateral immigration consequences of a plea when the defendant is an alien is similar to failure of the attorney to research the crime with which the defendant is charged. Cases involving affirmative misrepresentations provide the most fertile ground for collateral attack, however, because they present a better opportunity to prove both prongs of the Strickland/Hill test. Many appellate courts have distinguished a lawyer’s failure to inform a defendant about collateral consequences from a lawyer’s affirmative misrepresentations to a defendant who is considering the ramifications of a plea offer. In United States v. Coutu,7 the U.S. Court of Appeals for the Second Circuit vacated Coutu’s conviction based on counsel’s erroneous advice regarding collateral consequences. The Second Circuit distinguished Coutu’s case from instances where lawyers simply failed to inform a client of collateral consequences. The Fourth Circuit reached a similar result in Strader v. Garrison.8 The Eleventh Circuit has ruled that the appropriate remedy for affirmative misrepresentations that lead a defendant to enter a guilty plea is to vacate the conviction.“When the misadvice of the lawyer is so gross as to constitute a denial of the constitutional right to the effective assistance of counsel, leading the defendant to enter an improvident plea, striking the sentence and permitting a withdrawal of the plea seems only a necessary consequence of the deprivation of the right to counsel.” Holmes v. United States9. There are also numerous state cases favorable to a defendant trying to vacate a conviction based on trial counsel’s affirmative misrepresentations. For example, Florida appellate courts have vacated convictions based on ineffective misrepresentations of counsel.10 Moreover, the Georgia Supreme Court has ruled in two important cases on the issue of ineffective assistance claims based on erroneous advice regarding collateral consequences of criminal convictions. In State v. Patel,11 the court reversed Patel’s convictions because the lawyer gave erroneous answers to the defendant’s specific questions regarding collateral effects of conviction upon Patel’s license to practice medicine. In Rollins v. State,12 the court ruled that the plea by Rollins had to be vacated and the conviction reversed based on affirmative misrepresentations by counsel regarding collateral consequences which affected the decision to plead guilty. In Aldus v. State,13 the Maine Supreme Judicial Court affirmed the lower court’s decision to vacate the conviction. Aldus involved an alien charged with a felony assault. The prosecutor told defendant’s lawyer that the INS was looking for defendant. The defendant asked her attorney what it meant, but the attorney did not research the effects of a negotiated plea upon her immigration status. If the attorney had researched the issue, he would have learned that the conviction made the defendant presumptively deportable. The Maine court ruled that counsel’s performance was ineffective because he “did not make it his business to discover what impact his negotiated sentence would have” upon the defendant’s immigration status. The Oregon Appeals Court has ruled that “there is a qualitative distinction between passive non-disclosure and active misrepresentation.”14 In Long v. State, the defendant asked his lawyer specific questions regarding the possibility of subsequent expungement of a conviction. When the lawyer erroneously assured him that he could expunge the conviction, Long decided to plead guilty. The court stated that while Long’s lawyer was under no obligation to tell the defendant whether his conviction could be expunged, “having undertaken to provide advice on expungeability in response to his client’s expressed concerns, counsel was obliged to do so accurately and completely.” The court ruled that the lawyer’s performance breached standards of professional skill and judgment and was constitutionally ineffective.


Due to the onerous penalty enhancements and collateral consequences for subsequent DWI offenses, you are more likely than ever before to be approached by a client with an interest and opportunity to vacate a prior plea and conviction based on ineffective assistance of counsel. The cases cited herein will give you a head start in researching the issues that your case presents.

1. 466 U.S. 668 (1984).
2. Id. at 688.
3. Id. at 694.
4. 474 U.S. 52 (1985).
5. Id. at 59.
6. People v. Pozo, 746 P. 2d 523 (Colo. 1989).
7. 311 F. 3d 179 (2nd Cir. 2002).
8. 611 F. 2d 61 (4th Cir. 1979).
9. 876 F. 2d 1545, 1552 (11th Cir. 1989).
10. See Alguno v. State, 892 So. 2d 1200 (Fla. 4th DCA 2005); State v. Sallato, 519 So. 2d 605 (Fla. 1988) (vacating conviction based on attorney misrepresentations regarding collateral consequence of becoming a citizen).
11. 626 S.E. 2d 121 (Ga. 2006).
12. 591 S.E. 2d 796 (Ga. 2004).
13. 748 A. 2d 463 (Me. 2000).
14. Long v. State, 880 P. 2d 509 (Or. Ct. App. 1994).

No comments:

Post a Comment