Prior DUI in another state can be considered in in determining whether a DUI is a 2nd or 3rd offense in Tennessee

November 15, 2013

A prior DUI in another state can be considered in in determining whether a DUI is a 2nd or 3rd offense in Tennessee even if is it silent as to whether the Defendant has an attorney or waived his right to have an attorney in the prior case.

In March of 2013, a unanimous Tennessee Court of Criminal Appeals ruled that a prior judgment for DUI is admissible, even if it is silent as to whether the defendant had an attorney or waived his right to counsel in the prior case.

The defendant, Christopher Wenzler was indicted by the Fayette County Grand Jury for DUI and for DUI-third offense. He pled guilty to DUI as charged, and waived a jury trial and submitted to a bench trial as to the issues in the charge of DUI-third offense. That count alleged two prior DUI convictions: one in DeSoto County in Mississippi and a second in Shelby County. Wenzler argued in the trial court that the Mississippi conviction could not be used to enhance his current offense to DUI-third offense, but the trial court found him guilty as charged.

Judge Thomas T. Woodall stated that the big issue was whether the Mississippi judgment was facially invalid, or if it was facially valid, whether the State still had the burden of proof to show Wenzler had counsel or waived counsel where the record was “silent.”  The Court decided to follow the rationale in Hickman vs. State, 153 S.W. 3d 16 (Tenn. 2004). In that case the Tennessee Supreme Court held that in a habeas corpus case, the judgment’s silence as to whether the petitioner was represented by counsel or waived the right to counsel didn’t defeat a presumption of regularity and render the judgment void. The state supreme court clearly rejected the proposition that waiver of counsel can’t be presumed from a silent record. As a result, such a judgment is thus facially invalid. Judge Woodall couldn’t find a reasonable basis to conclude that a criminal judgment may be facially valid for a habeas corpus proceeding but the same judgment would be facially invalid for a DUI proceeding.

The Court stated: In summary, we reject the State’s argument that since the Mississippi judgment did not require actual incarceration, rather than just a suspended jail sentence and probation, that the rule in McClintock would not apply. However, under the definition of a “facially invalid” or “facially void” judgment set forth in Hickman, it concluded that O’Brien, Whaley, and their progeny no longer offered relief to Wenzler. The applicable case law didn’t require the State to affirmatively prove that Wenzler had counsel or waived counsel in his case. Consequently, Wenzler wasn’t entitled to relief in this appeal.


State v. Wenzler, Slip Copy, 2013 WL 865333 (Tenn.Crim.App. Sept. 18, 2013).


Questions about DUI’s  suppression hearings, or other issues in a criminal case?

Kevin Patterson has been providing professional legal services to individuals and businesses throughout the greater Memphis area since 1983.  Kevin will treat your legal issue with the dedicated service and attention it deserves. Call Kevin at (901) 300-4820 or e-mail him at to talk to him about your legal matter.

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