State v. Wu

431 P.3d 1070

The STATE of Washington, Respondent,

v.Ken V. WU, Appellant.

No 77045-4-I

Court of Appeals of Washington, Division 1.

FILED: December 17, 2018

PUBLISHED OPINION

Mann, J.¶ 1 Under former RCW 46.61.502(6)(a), driving under the influence (DUI) is elevated from a gross misdemeanor to a felony if the defendant has "four or more prior offenses within ten years as defined in RCW 46.61.5055." Under RCW 46.61.5055(14)(a)(xii), a qualifying "prior offense" includes a conviction for reckless or negligent driving, "if the conviction is the result of a charge that was originally filed as a [DUI]."

¶ 2 Ken Wu appeals his felony DUI conviction. He contends that he was deprived of the right to a jury trial because the trial court concluded as a threshold matter that his prior two convictions for reckless driving were qualifying "prior offenses." Alternatively, Wu argues that even if the trial court had authority to make the threshold determination, there was insufficient evidence to demonstrate the prior offenses involved drugs or alcohol. We affirm.

I.

¶ 3 On August 1, 2016, a Washington State Trooper conducted a traffic stop after observing a truck driven by Wu weaving between lanes on I-5. Wu was alone in the driver’s seat and had bloodshot watery eyes. Wu’s speech was thick and he had difficulty retrieving his registration. Wu agreed to attempt a field sobriety test but performed very poorly. Wu was arrested and transported to the police station. Wu submitted two breath samples with a breath alcohol content (BAC) of 0.072 and 0.068 respectively.

¶ 4 The State charged Wu with felony DUI, violating an ignition lock requirement, and driving with a suspended license.¹ The felony DUI charge was based on the State’s claim that Wu had four "prior offenses" under RCW 46.61.502(6).

¶ 5 The trial court granted Wu’s motion to bifurcate the trial. The first phase of trial determined whether Wu was guilty of DUI for the August 1, 2016, arrest. The jury found Wu guilty of DUI.

¶ 6 The second phase of trial determined whether Wu had four prior offenses within 10 years which would elevate the DUI to a felony DUI and whether Wu was guilty of driving with a suspended license.

¶ 7 During the second phase of trial, the State offered evidence of the following four prior convictions:

• April 29, 2014, conviction by the Marysville Municipal Court for first degree negligent driving, based on a September 29, 2013 citation for DUI.

• October 13, 2015, conviction by the Snohomish County District Court for reckless driving based on an October 9, 2013, citation for DUI.

• July 22, 2015, conviction by the Snohomish County District Court for DUI based on an October 15, 2013, citation for DUI.

• March 29, 2016, conviction by the Marysville Municipal Court for reckless driving based on a May 2, 2015, citation for DUI.

¶ 8 After the State rested, Wu moved to dismiss the felony DUI charge on the grounds that the State presented no evidence that Wu’s two prior convictions for reckless driving involved alcohol or drugs. After reviewing the evidence supporting the four convictions and relevant case law, the trial court concluded that each of the prior convictions involved the use of alcohol and denied Wu’s motion to dismiss.

¶ 9 Wu then unsuccessfully proposed a jury instruction that would have required the State to prove that a "prior offense" was related to alcohol or drugs beyond a reasonable doubt. The trial court declined Wu’s proposed instruction because it had already found that Wu’s prior offenses involved alcohol.

¶ 10 The jury found that Wu had four or more "prior offenses" within 10 years of August 1, 2016. The trial court sentenced Wu to 23 months of confinement on the DUI count and 90 days for driving with a suspended license. Wu appeals.

II.

A.

¶ 11 Wu’s primary contention is that the State must prove to a jury, beyond a reasonable doubt, that each of the four prior convictions used to elevate a gross misdemeanor DUI to a felony DUI meet the statutory definition of a "prior offense." Wu contends that our Supreme Court’s opinion in City of Walla Walla v. Greene, 154 Wash.2d 722, 116 P.3d 1008 (2005), and Division Two of this court’s decision in State v. Mullen, 186 Wash. App. 321, 345 P.3d 26 (2015), requires the jury, not the court, to determine that the "prior offenses" involved alcohol or drugs as an element of the crime. We disagree.

¶ 12 We review questions of law de novo. State v. Chambers, 157 Wash. App. 465, 474, 237 P.3d 352 (2010). Due process requires the State to prove each essential element of the crime beyond a reasonable doubt. U.S. Const. amend. XIV ; Wash. Const. art. I, Sec. 22 ; In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ; State v. Oster, 147 Wash.2d 141, 146, 52 P.3d 26 (2002). The legislature defines the elements of a crime. Chambers, 157 Wash. App. at 475, 237 P.3d 352 (citing State v. Williams, 162 Wash.2d 177, 183, 170 P.3d 30 (2007) ). "Proof of the existence of the prior offenses that elevate a crime from a misdemeanor to a felony is an essential element that the State must establish beyond a reasonable doubt." Chambers, 157 Wash. App. at 475, 237 P.3d 352.

B.

¶ 13 RCW 46.61.502(1) defines the elements of the crime of DUI.² Chambers, 157 Wash. App. at 475, 237 P.3d 352. A DUI is generally a gross misdemeanor. RCW 46.61.502(5). But in certain circumstances it can be elevated to a felony. Under former RCW 46.61.502(6)(a), "[i]t is a class B felony ... if ... [t]he person has four or more prior offenses within ten years as defined in RCW 46.61.5055."³ Former RCW 46.61.5055(14) defines a "prior offense" to include

[a] conviction for a violation of ... [RCW] 46.61.500 [reckless driving], or 9A.36.050 [reckless endangerment] or an equivalent local ordinance, if the conviction is the result of a charge that was originally filed as a violation of RCW 46.61.502 [DUI].

RCW 46.61.5055(14)(a)(xii)

C.

¶ 14 We first address the question of whether the court or jury must determine if a person has the requisite "prior offenses" necessary to elevate a misdemeanor DUI to felony DUI. In Chambers, 157 Wash. App. at 477, 237 P.3d 352, we explained that

under two other nearly identical statutory schemes, our appellate courts have held that while the existence of a prior conviction is an essential element that must be proved to the jury beyond a reasonable doubt, the question of whether a prior conviction qualifies as a predicate offense for purposes of elevating a crime from a misdemeanor to a felony is a threshold question of law for the court to decide.

Chambers, 157 Wash. App. at 477, 237 P.3d 352. After analyzing State v. Carmen, 118 Wash. App. 655, 77 P.3d 368 (2003) (elevating violation of no-contact order to felony based on previous violations of certain statutes); State v. Miller, 156 Wash.2d 23, 31, 123 P.3d 827 (2005) (approving the holding in Carmen ); and State v. Boss, 167 Wash.2d 710, 718-19, 223 P.3d 506 (2009) (concluding the validity of a custody order under the first degree custodial interference statute was not an element of the crime but a threshold decision for the trial court); we concluded:

While the State must prove beyond a reasonable doubt the existence of four or more prior DUI offenses within 10 years in order to convict a defendant of felony DUI in violation of former RCW 46.61.502(6), whether a prior offense meets the statutory definition in former RCW 46.61.5055(13) and qualifies as a predicate offense, is a threshold determination to be decided by the trial court.

Chambers, 157 Wash. App. at 481, 237 P.3d 352.

¶ 15 We confirmed our holding from Chambers in State v. Cochrane, 160 Wash. App. 18, 253 P.3d 95 (2011). In Cochrane, we concluded that while the existence of the four prior DUIs as defined by statute is an essential element of the crime that must be proved beyond a reasonable doubt, the threshold question of whether a prior conviction qualifies as a predicate offense is a threshold question of law for the court. 160 Wash. App.at 26-27, 253 P.3d 95. We further concluded, that the specific details of the prior offenses are not essential statutory elements that must be alleged in the information. Cochrane, 160 Wash.App. at 25, 253 P.3d 95. More recently, we reconfirmed the holding from Chambers in State v. Bird, 187 Wash. App. 942, 945, 352 P.3d 215 (2015) (disagreeing with Mullen ).

¶ 16 Thus, under our established precedents the existence of four or more prior DUI offenses within 10 years is an essential element of felony DUI, and must be proven beyond a reasonable doubt. But, whether a prior conviction meets the statutory definition in former RCW 46.61.5055(13), and thus qualifies as a "prior offense," is a threshold question of law to be decided by the trial court.

D.

¶ 17 Wu relies primarily on Mullen, a recent split decision from Division Two of this court. Patrick Mullen appealed his conviction for felony DUI, arguing that the jury should have been instructed that the State needed to prove beyond a reasonable doubt that alcohol or drugs were involved in his prior conviction for reckless driving. Mullen, 186 Wash. App. at 324, 345 P.3d 26. Relying on Greene, 154 Wash.2d at 727-28, 116 P.3d 1008, the majority in Mullen concluded that the involvement of drugs or alcohol in the prior reckless driving conviction is an essential element of the crime of felony DUI and thus a question for the jury to decide. We respectfully disagree that Greene created a new essential element for the crime of felony DUI.

¶ 18 In Greene, the court interpreted "prior offenses" for the purpose of determining mandatory minimum sentences. Greene claimed that the statute establishing a harsher minimum sentence based on the definition of a "prior offense" was unconstitutional because each element of her prior DUI-related charge was not proved beyond a reasonable doubt. 154 Wash.2d at 724-25, 116 P.3d 1008. The district court, relying on State v. Shaffer, 113 Wash. App. 812, 818-20, 55 P.3d 668 (2002), ...