Tuesday, January 5, 2010

Beware the enhancement (Or: A Life Sentence for a Misdemeanor)

Let's start with a riddle:

How can you commit a class B misdemeanor offense, but get a life sentence for it?

Okay, so now we've finished with the crimes and punishments that make up the various felonies (recap: state jail, third, second, and first) the whole system is thrown out of whack by what are known as "enhancements." These reflect a defendant's criminal history and can bump him up a level or two if his history is bad enough.

Or more. (See where we're going with this?!)

Below are some of the most common examples.

Enhanced to State Jail Felony:

Burglary of a vehicle - normally a Class A misdemeanor, but if you have three prior convictions for that offense, your new one is a state jail felony.

Theft - likewise, if normally a misdemeanor your third will be a state jail felony.

Prostitution - normally a misdemeanor, but if you have three prior convictions for this offense, your new one is a state jail felony.

Enhanced to Third Degree Felony:
If you have two trips to the state jail, any new state jail offense will become a third degree felony.

Enhanced to Second Degree Felony:
If you have two prior felony convictions, for which you went to the penitentiary (known as a "pen trip"), a state jail felony becomes a second degree felony.
Likewise, a third degree felony with a prior "pen trip" becomes a second degree.

Enhanced to First Degree Felony:
A second degree offense, when you have a prior pen trip, becomes a first degree offense.

A first degree felony, with a usual punishment range of 5-99 years (or life) has the minimum raised from 5 to 15 years if you are charged with a first degree felony and have one prior
pen trip.

And the kicker: Habitual
If you are charged with any first, second, or third degree felony, and have two
prior pen trips, the punishment range becomes 25-99 years (or life).

So, returning to our riddle:
How can you commit a class B misdemeanor offense, but get a life sentence for it?

Here's how:
You commit your first DWI offense, a class B misdemeanor.
You commit a second, and this time it's a class A
Your third is a felony, for which you go the penitentiary.
Your fourth, is enhanced up to a second degree, and again, you face a trip to the pen.
Your fifth DWI, then, lands you in felony court facing a minimum of 25 years in the penitentiary, and a maximum sentence of life.

So, as you can see, it takes some diligence on the part of the defendant, but it's perfectly possible to turn a class B misdemeanor into a life sentence.

Think it doesn't happen? Last year, I had two cases that came about pretty much as outlined: DWI defendants that just wouldn't quit.


  1. DAC, how much discretion is there on the part of the judge / jury to impose these types of "enhancements" at sentencing? Or is it completely automatic? It seems almost too harsh to put someone behind bars for 25 years to life for their fifth DWI.

    Also, I really have to wonder what the defense attorney told those defendants after their fourth DWI conviction - were they aware of the probable outcome of their continued "diligence?"

  2. Great questions, RG, I will make them the subject of my post tomorrow.

    And, for the second one, I'll give my perspective but I would ask that one or two of my friends in the defense bar respond if possible.

  3. OK have a.question is there any statue of.limitations regarding an enhancement.or any considerations on judge or prosecuters when dealing with theft. A store item costing around $250.00 enhanced to 1500. Last theft charge conviction was 1997 and it may be a little older than that.

  4. Hi Rebecca, thanks for posting. I'm afraid I kind of have this policy of not commenting on specifics in the way you've asked, it gets a little close to giving legal advice, which I can't and don't want to do. I hope you understand!

  5. If the person has prior convictions and now he is facing the same charges, can they be enhanced even if they have not gone to trial yet?

    Texas student

  6. Not sure I understand the exact question, but I'll answer it this way: prior convictions can be used to increase the punishment level of a pending crime. But they must be actual convictions, not just charges. Hope that helps.

  7. If a defendant has been indicted with an enhancement can they then come back and enhance it again?


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