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Defendant Cannot Amend DUI-3 Conviction Based Upon Subsequent Sealing of Two Prior DUI Offenses

In State v. Rosenfield, 2016 VT 27 (Feb. 26, 2016), the Vermont Supreme Court affirmed a denial of the defendant’s request to amend his DUI-3 offense to a DUI-1 offense, based upon subsequent sealing of his DUI-1 and DUI-2 offenses.

Issue: The issue is whether a defendant can amend a later conviction that had been enhanced by earlier sentences that were later sealed.

Holding: The statute that permits sealing of prior convictions does not also allow for reducing the enhancement resulting from prior convictions that were later sealed. In this case, defendant had three DUI convictions. Shortly after his DUI-3 conviction, he filed a motion to seal his DUI-1 and DUI-2 convictions, on the basis that they occurred before he was 21, and the motion to seal was granted. He then sought to modify the sentence for the DUI-3. This challenge fails because at the time of conviction on the DUI-3 charge, defendant’s record showed two prior offenses.

Concurrence: Eaton, J., filed a concurrence, on the grounds that the defendant was not entitled to seal his DUI-2 conviction because he was actually 21, not under 21, and the trial court had erred in permitting him to do so.

Dissent: Dooley, J., filed a dissent, on the grounds that the common law remedy of “coram nobis” (which is a writ for correcting errors of fact) would permit the defendant to amend his DUI-3 conviction after the two prior convictions were sealed.

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