Harsher Punishment For Multiple Offenses: What Is a “Predicate Offense?”

March 16, 2022 by Sabah Khalaf

Criminal law in Oklahoma is complicated. Learning the intricacies of crimes and their punishments can make a big difference in how you and your attorney choose to navigate a pending charge.

One such little understood, but incredibly important area of the criminal code is what are called “predicate offenses.”

What is a predicate offense?

A predicate offense is a crime that has a smaller punishment the first time you commit it, and a greater punishment if you commit it again. While your criminal history will always affect the plea offers a prosecutor is willing to give you, a predicate offense has a statutorily enhanced punishment. This means, by law, the crime will have a more severe punishment for subsequent charges.

The type of enhancement can look different depending on the charge. Some predicate offenses see an increase in the range of punishment, such as a higher minimum or higher maximum punishment. Some crimes are enhanced from a misdemeanor to a felony.

What are the predicate offenses in Oklahoma?

The current list of predicate offenses are:

  • Driving Under the Influence (DUI)
  • Actual Physical Control of a Vehicle While Intoxicated (APC)
  • Domestic Assault and Battery (Domestic A&B)
  • Larceny of Merchandise from a Retailer (LMFR)
  • Malicious Injury to Property
  • Violation of Protective Order (VPO)

Is there a time limit on how long a predicate offense can enhance punishment?

Yes, a predicate offense cannot enhance punishment forever. The second time you are convicted of a predicate offense must occur within 10 years of the first charge. If 10 years and 1 day pass between the conviction and the commission of the second charge, the predicate cannot enhance the second charge and will remain at the unenhanced level.

What if I haven’t been convicted of the predicate offense yet, and get another charge?

The predicate offense doesn’t enhance a charge until you have been convicted. A conviction happens once you have either plead guilty or you have been found guilty by a jury. If your case is still pending, you haven’t been convicted yet, and the case can’t be used to enhance your next charge. This does not mean prosecutors won’t offer you a worse plea, because they absolutely will. Criminal history is always considered when offering a plea deal, and that includes pending cases.

Regardless of whether you plead guilty or no contest, the conviction will still act as a predicate. This is true for both deferred sentences, which result in an expungement, and suspended sentences, which result in a true conviction. Despite the language used with a deferred sentence (judges withhold a finding of guilt), they can still be used as a predicate. Once a case is expunged, it is harder for prosecutors to find; this can result in mischarging subsequent offenses as misdemeanors, even though they can be filed as felonies. While this does occasionally happen, it doesn’t mean that prosecutors CAN’T use an expunged case to enhance a later charge.

DUI as a predicate offense

The first time you receive a DUI, it will be filed as a misdemeanor, unless your DUI led to an accident that resulted in death or serious bodily injury. If you receive a second DUI charge within 10 years of your first DUI, it can be filed as a felony. This not only increases the severity of the punishment (a longer maximum jail sentence), but it also comes with the additional difficulties of having a felony conviction.

APC as a predicate offense

APC is treated the exact same as a DUI. An APC is simply a non-driving DUI. A DUI can be used to enhance an APC charge. For example, if you are convicted of a DUI and get an APC charge within 10 years of that DUI, the APC can be filed as a felony. The same can be said in reverse, where an APC acts as a predicate offense for a DUI.

DWI is not a predicate offense

An APC can be used to enhance a DUI, and a DUI can be used to enhance an APC, but what about DWI? A DWI is NOT a predicate offense. A DWI will never become a felony, regardless of how many you receive. Additionally, a DWI will never turn a DUI into a felony. This doesn’t mean prosecutors can’t consider DWI convictions when making plea recommendations (because they can and will), but it does mean the DWI won’t increase the maximum punishment and won’t turn a misdemeanor into a felony.

Domestic assault and battery as a predicate offense

Domestic assault and battery is a very complicated charge. The first time you are charged with domestic assault and battery is a misdemeanor. Once you are convicted, any subsequent charges are deemed felonies.

This is not a hard and fast rule, because domestic assault and battery has many felony triggers apart from prior conviction. Domestic assault and battery causing great bodily injury is always a felony, regardless of your criminal history. Similarly, domestic assault and battery with a dangerous or deadly weapon is always a felony, even if you have no criminal history.

All forms of misdemeanor domestic assault and battery are treated as predicate offenses for each other. This means generic misdemeanor domestic assault and battery, domestic assault and battery on a pregnant woman, and domestic assault and battery in the presence of a minor are all predicate offenses. They can all be used to enhance a subsequent charge of each other.

Any domestic assault and battery charge can be used to enhance a subsequent charge. It does not have to be a misdemeanor domestic assault and battery charge to enhance your subsequent charge. If you have a prior conviction for domestic assault and battery leading to great bodily injury, and then within 10 years are charged with simple domestic assault and battery, that second charge can be filed as a felo_y_ even though you do not have a conviction for a misdemeanor domestic assault and battery.

This only applies to DOMESTIC assault and battery. A simple assault and battery isn’t a predicate offense. A domestic assault and battery is defined as involving romantic partners, former romantic partners, or parents and adult children. It can also be any relationship with a romantic partner element. For example, if a woman hits her ex-husband's new wife, this is a domestic assault and battery, NOT a regular assault and battery, even though the two women have never had a romantic relationship with each other. A domestic assault and battery can also occur between two individuals living in the same home who do not have a romantic relationship with each other.

If you have a conviction for assault and battery, it will not enhance a later domestic assault and battery, even if it was mischarged. If you get into a physical altercation with a romantic partner, but the prosecutor charged it as a regular assault and battery, that is not a predicate and it will not enhance later charges. This is true even if the charge is amended as part of a plea deal. If you are charged with domestic assault and battery, and plead to a regular assault and battery, a subsequent charge for domestic assault and battery will not be enhanced.

LMFR as a predicate offense

Larceny of Merchandise From A Retailer (LMFR) is when you steal an item from a retail establishment, such as Walmart. Most of us would know this as shoplifting. If you steal under $1,000 worth of items it is a misdemeanor. If you steal over $1,000 it is a felony.

Unlike with the other charges we have discussed above, a LMFR doesn’t become a felony after a prior conviction. Instead, the sentencing maximum is increased. A misdemeanor LMFR carries a maximum of 30 days in jail. After two LMFR convictions, you face a maximum of 1 year in jail. While it is only the misdemeanor that is enhanced, any prior LMFR convictions can be used as a predicate. If you have been convicted of two felony LMFRs and then are charged with a misdemeanor LMFR, that misdemeanor has a maximum punishment of 1 year instead of 30 days.

Notably, A LMFR has an unusual clause that almost acts like a predicate BEFORE a conviction. If you commit multiple LMFRs within 90 days, they will base your charge on the total amount taken. For example, if you commit three misdemeanor LMFRs in 3 months, but take $500 worth of items each time, you can now be charged with a single count of felony LMFR. This is unique because it does not require a former conviction.

Malicious injury to property as a predicate offense

Malicious injury or destruction of property is what most people would call “vandalism.” Like LMFR, malicious injury or destruction of property is considered a misdemeanor if the damage is under $1,000. If the damage is over $1,000, it is considered a felony. Additionally, if you have two prior convictions for malicious injury or destruction of property, your third charge can be filed as a felony.

Violation of protective order

Violation of protective order is also a predicate offense. This occurs when you violate a final or temporary protective order. A violation can be absolutely anything, even a text message or a phone call. Much like with a domestic assault and battery charge, a first violation of protective order is a misdemeanor. After a former conviction, a second violation can be filed as a felony. This not only changes the designation from misdemeanor to felony, but also increases the minimum punishment and maximum punishment.

This is also true for a violation of protective order and physical injury. If you cause physical injury to someone who has a protective order against you, your punishment is greater than a mere violation. It is also a predicate offense. The first time you commit a violation of protective order with bodily injury is a misdemeanor, the second time is a felony and carries up to 5 years in the Department of Corrections.

Drug crimes are not predicate offenses

Many people are under the impression that possession of a controlled dangerous substance is a predicate offense. This is incorrect. Possession of a controlled dangerous substance is not a predicate offense, and much like a DWI, the maximum sentence will not increase regardless of how many convictions you have.

If I am convicted of one predicate, can it be used to enhance a different offense?

With the exception DUI and APC, no. A conviction for domestic assault and battery cannot be used to enhance a Violation of Protective Order. There are some instances where certain charges can be used to enhance a different type of charge, like APC and DUI. Generally, that is not the case. Predicate offenses are designed to deter you from committing the same crime multiple times. While a predicate cannot be used to enhance a different offense, we want to make it very clear that does not mean prosecutors won’t consider it when giving plea offers. Criminal history is always considered, regardless of whether it is a predicate or not.

The Bottom Line

A predicate offense can enhance a crime from a misdemeanor to a felony, or it can increase the minimum and maximum punishment. If you are convicted of a predicate offense, and then get charged with the same offense within 10 years, that subsequent charge can be enhanced with the original conviction.

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