State v. Wu

194 Wash.2d 880

453 P.3d 975

STATE of Washington, Respondent,

v.Ken V. WU, Petitioner.

No. 96747-4

Supreme Court of Washington.

Argued June 13, 2019

Filed DECEMBER 12, 2019

Eric J. Nielsen, Casey Grannis, Nielsen Broman & Koch PLLC, 1908 E. Madison Street Seattle, WA 98122-2842, for Petitioner.

Gavriel Gershon Jacobs, King County Prosecuting Attorney, 516 3rd Avenue, Suite W554, Seattle, WA 98104-2362, for Respondent.

MADSEN, J.

¶1 In this case, we clarify the required elements for felony DUI (driving under the influence) and who must determine whether such required elements are met, a judge or a jury. We hold that the essential elements of felony DUI are set forth in RCW 46.61.5055(14)(a), and resolving conflicting case law, we hold that following a trial court’s determination of admissibility, a jury should determine whether the essential elements of felony DUI have been met based on proof beyond a reasonable doubt provided by the State. Accordingly, we affirm defendant’s conviction.

FACTS

¶2 The State charged Ken Wu with "felony DUI" (driving under the influence of alcohol or drugs), violating an ignition interlock requirement, and first degree driving with a suspended license. Clerk’s Papers (CP) at 1-2. The felony DUI charge was based on Wu having, within 10 years of his present arrest, four "prior offenses" as defined by former RCW 46.61.5055(14)(a)(xii) (2016). Id. at 1. The court granted Wu’s motion to bifurcate the trial so that the jury would consider his conduct on the date of arrest before discovering his criminal history.

¶3 The jury first considered the elements of gross misdemeanor DUI and convicted Wu of that charge; that conviction is not challenged. After convicting Wu of DUI, the jury then heard evidence regarding Wu’s four prior offenses, along with the suspended license charge. The State presented documentary evidence that Wu had four prior offenses within the past 10 years: one conviction for DUI, one conviction for first degree negligent driving, and two convictions for reckless driving. The reckless driving and first degree negligent driving convictions were each originally charged as DUI and subsequently amended.

¶4 Wu moved to dismiss the felony DUI after the State rested, arguing in part that the prosecution had failed to present sufficient evidence that his reckless driving convictions "involved alcohol." Verbatim Report of Proceeding (VRP) (June 1, 2017) at 672-76. The court noted that it had already admitted the prior offenses into evidence; the court assessed each of the prior convictions on the record, determined there was sufficient evidence to proceed, and denied Wu’s motion. The court refused to instruct the jury that it needed to find each prior offense involved alcohol.

¶5 The jury found by special verdict that Wu had four prior offenses and also convicted him of driving with a suspended license (the interlock violation was dismissed at trial). The court sentenced Wu within the standard range on the felony DUI and imposed 90 days’ confinement on the suspended license conviction. Wu appealed, arguing that the State failed to present sufficient evidence that his two prior reckless driving convictions involved alcohol, that the determination of alcohol involvement for prior offenses was a jury question, and that the trial court erred by declining to instruct the jury to decide if each prior offense was alcohol related.

¶6 Division One of the Court of Appeals affirmed Wu’s conviction in a split decision. State v . Wu, 6 Wash. App. 2d 679, 431 P.3d 1070 (2018). The majority opinion held that whether Wu’s prior convictions qualified as predicate offenses for felony DUI was a question of law for the court,¹ leaving to the jury the issue of whether the prior convictions existed. Id. at 687-89, 431 P.3d 1070. This court granted Wu’s petition for review. 193 Wash.2d 1002, 438 P.3d 120 (2019).

ANALYSIS²

DUI Felony Statutes and Their Requirements

¶7 Under former RCW 46.61.502(6)(a) (2016), driving under the influence 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."³ Former RCW 46.61.5055(14)(a)(xii) defines "prior offenses" for purposes of the felony DUI statute as including "[a] conviction for a violation of RCW 46.61.5249 [negligent driving], 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 ] or 46.61.504 [physical control of vehicle under the influence], or an equivalent local ordinance, or of RCW 46.61.520 [vehicular homicide] or 46.61.522 [vehicular assault]." (Emphasis added.) Restated, for present purposes, under RCW 46.61.5055(14)(a)(xii),⁴ a qualifying "prior offense" includes a conviction for reckless driving "if the conviction is the result of a charge that was originally filed as a [DUI]."⁵

Conflicting Case Law

¶8 As an initial matter, this case came to the court on the basis of a conflict between Division One’s decision below and its acknowledged disagreement with Division Two’s decision in State v. Mullen, 186 Wash. App. 321, 345 P.3d 26 (2015). Both are split decisions, and the courts take opposite views about who should decide prior conviction qualification issues and what elements are required in the felony DUI context.

¶9 Mullen extrapolated this court’s decision in City of Walla Walla v. Greene, 154 Wash.2d 722, 116 P.3d 1008 (2005), and held that "after Greene, the involvement of alcohol or drugs in the prior conviction is an essential element of felony DUI that must be proved beyond a reasonable doubt and to a jury." Mullen, 186 Wash. App. at 328, 345 P.3d 26 (emphasis added). Accordingly, Mullen held that "the State must prove beyond a reasonable doubt that [defendant’s] prior reckless driving conviction involved alcohol or drugs in order to elevate the misdemeanor DUI to a felony DUI." Id.

¶10 Division One below disagreed with the Mullen majority about Greene's meaning and whether the felony DUI prior conviction matters should be decided as a question of fact or law. In Wu, Division One, citing with approval the Mullen dissent, states:

[C]ontrary to the majority opinion in Mullen, nothing in Greene altered the legislature’s definition of the essential elements of the crime of felony DUI. As the dissent in Mullen summarized:

While the fact that a person has four prior DUI offenses is an essential element of the crime of felony DUI under RCW 46.61.502(6) that must be proved to the jury beyond a reasonable doubt, whether a prior offense meets the statutory definition in RCW 46.61.5055 [ ] ... is not an essential element of the crime. Rather, the question of whether a prior offense meets the statutory definition is a threshold question of law to be decided by the trial court before admitting a prior offense into evidence at trial.

6 Wash. App. 2d at 687-88, 431 P.3d 1070 (quoting Mullen, 186 Wash. App. at 339, 345 P.3d 26 (Melnick, J., dissenting)).

¶11 To understand Mullen and its conflict with the present case, we must consider Greene. There, this court considered a prior negligent driving conviction, explained how the felony DUI statute is to be applied, and upheld the constitutionality of the same definitional provision at issue here (overruling State v. Shaffer, 113 Wash. App. 812, 55 P.3d 668 (2002) ).⁶ In Greene, on direct review, this court reversed a district court’s decision sentencing Greene as a first time DUI offender even though she had a qualifying prior offense under RCW 46.61.5055. The district court relied on Shaffer, in which Division One declared unconstitutional the same provision of RCW 46.61.5055 defining prior offenses at issue here and specifically addressed the "reckless driving" prior conviction also at issue in Wu’s case. See Shaffer, 113 Wash. App. at 818, 55 P.3d 668 ("The predicate at issue here is a prior conviction for reckless driving, but only when such a conviction results from a charge originally filed as a DUI offense."). The Shaffer court held that the statute defining prior offenses did not pass "constitutional muster" for two reasons. First, "the effect of the statute is to elevate a prior reckless driving conviction to a DUI conviction without any proof. This is so because the mandatory enhancement applies only to those prior reckless driving convictions where the charge, but not the conviction, was DUI." Id. Shaffer 's second articulated reason was that "because the statute does not require any proof of the charge of DUI, it fails to set the minimum constitutional standard required for criminal conviction. That standard is for proof beyond a reasonable doubt." Id. at 819, 55 P.3d 668.

¶12 As noted, the district court in Greene relied on Shaffer, so this court addressed Shaffer at length. This court noted, "As in Shaffer, RCW 46.61.5055 is the statute at issue here which incorporates particular driving-related convictions that were originally charged as DUI." Greene, 154 Wash.2d at 726-27, 116 P.3d 1008. This court stated, "The [ Shaffer ] court reasoned that since the statute does not require any proof that an earlier DUI was committed, it violates due process."

Id. at 726, 116 P.3d 1008 (citing Shaffer, 113 Wash. App. at 818-19, 55 P.3d 668 ). This court reasoned that the Shaffer court had assumed "that the legislature only included a prior offense ‘where DUI was involved,’ " id. at 727, 116 P.3d 1008 (quoting Shaffer, 113 Wash. App. at 818, 55 P.3d 668 ), and that the problem with the Shaffer court’s analysis was that "the definition of prior offense does not contain [any such] language." Id. The Greene court then explained at length as follows:

The statutory list of prior offenses contains more than merely a DUI conviction. RCW 46.61.5055(12)(a)(v) [now RCW 46.61.5055(14)(a)(xii) ] lists specific convictions that constitute a prior offense under the statutory definition.

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