On September 5, 2013 the Idaho Court of Appeals in State v Schall clarified that, in felony Idaho DUI cases, the State has the burden of proving that the DUI offenses leading up to the felony charge are "substantially conforming" to Idaho DUI law. The State has to meet this burden of proof at the time of the preliminary hearing in order for the Magistrate Judge to bind the Defendant over to District Court on the felony charges. The Court indicated that "the magistrate at the preliminary hearing must make the initial legal determination whether the foreign statute is substantially conforming, for without that determination there can be no probable cause for a felony offense and the case may not be bound over to the district court." (See http://www.isc.idaho.gov/opinions/39891.pdf, page 8.)
As a practical point, for a person facing felony Idaho DUI charges, it is important possibly essential to hold a preliminary hearing and make the State (i.e. prosecuting attorney) meet their burden of proving all of the elements of the Idaho DUI charge including any "substantially conforming" prior DUI charges. Simply waiving the preliminary hearing without making the state prove the elements of an Idaho DUI offense may result in the inability to challenge the charge on this issue at a later date. Make sure to have a detailed discussion with your attorney or public defender prior to waiving a preliminary hearing.
