When Is A "Prior" Not Prior For DUI Sentencing?
When is a 'prior' not prior for DUI Sentencing? RCW 46.61.5055
By Patricia Fulton
**Author's Note - this article is out of date - RCW 46.61.5055 has been amended to fix many of these problems**
Beware DUI practitioner - a prior is not necessarily prior for the purpose of mandatory minimum DUI sentencing!
Generally, determining the mandatory minimums for a DUI conviction is just a matter of reviewing the past seven years of your client's criminal history. However, under several scenarios the DUI sentencing statute,RCW 46.61.5055, could lead to higher mandatory minimums than either you or your client anticipated.
For example, if your client is currently on a deferred prosecution and is then convicted of a subsequent DUI (later causing the revocation of the deferred), a judge could find that RCW 46.61.5055 requires both convictions be sentenced as second offenses.
Yes, it's true! Your client could have two second offenses but no first offense. If the new case is resolved with a reduction to Reckless Drivingor Negligent Driving 1st Degree before revocation and sentencing on the deferred; the conviction for the revoked deferred will still be considered a second offense for purposes of mandatory minimums.
RCW 46.61.5055(12) defines what a court must consider a "prior offense" when it occurs "within seven years" of the arrest for the current offense.
A "prior offense" also includes a conviction for Negligent Driving 1st Degree, Reckless Driving, or Reckless Endangerment if reduced from a DUI or Physical Control. Finally, entry of a deferred prosecution is also a "prior offense." (1)
The adjective "prior," according to Merriam-Webster, means "earlier in time or order, previous" and in RCW 46.61.5055 initially appears to modify the noun "offense."
This reading implies that the only offenses which increase your client's mandatory minimums are those that occurred within the seven yearsbefore your client's current case. This is not an unreasonable assumption when we consider the rule that the legislature is "presumed to have used no superfluous words and we must accord meaning, if possible, to every word in a statute." (2)
If the legislature intended the court to consider the seven years beforeand the seven years after the current case, why would they have used the adjective "prior"?
Unfortunately, a review of the legislative history surrounding RCW 46.61.5055 and earlier versions of the DUI sentencing statute fails to shed any light on this issue.
I recently dealt with this issue in Pierce County when a prosecutor argued that the court should consider a fourteen year window of time when computing my client's prior offenses. My client had been convicted of a DUI in 1997 and then entered into a deferred prosecution on another DUI charge in 2000. In 2005, when he was again convicted, the prosecutor successfully moved to revoke the deferred prosecution and took the position that the DUI sentencing statute required the court to sentence my client to the mandatory minimums for a third offense.
The prosecutor argued that the language of RCW 46.61.5055 did not limit the court to considering only the 1997 conviction, but required it to consider all convictions both seven years before the current offense and seven years after.
According to the prosecutor, in RCW 46.61.5055, "prior" did not really mean prior.
The prosecutor argued that by placing the adjective "prior" within quotations with the noun "offense," the legislature created a term of art with a meaning specific to RCW 46.61.5055.
Considering that "a legislative definition prevails over a dictionary definition or common understanding of any given term," this argument could be persuasive. (3)
I responded to this by arguing that the DUI sentencing statute was ambiguous and therefore the rule of lenity required that the judge consider only the 1997 conviction as a prior and sentence my client as a second offense.
A statute is considered ambiguous when it is subject to more than one reasonable interpretation. (4) If a statutes is ambiguous, the court must look to the rule of statutory construction for guidance. The first rule of construction for criminal statutes is the rule of lenity which requires that the court "must strictly construe ambiguous statues in favor of the defendant." (5)
In my case, the judge determined that RCW 46.61.5055 required the court to only count the convictions that occurred within a seven year window of time.
However, that seven year window was not fixed in time and could encompass convictions occurring both before and after the arrest date for the current offense. Consequently, the court would consider either my clients 1996 conviction or his 2005 conviction (but not both) and sentence him as a second offense.
While a "win" for my client, this decision still leaves open the possibility of two second offense convictions if you fail to carefully coordinate the timing of resolutions on your client's cases.
1. This article simplifies RCW 46.61.5055 for purposes of brevity - please see the actual statute for more detailed descriptions of what would constitute a "prior offense".
2. In re Recall of Pearsall-Stipek, 141 Wn. 2d 756, 767 (2000); see also Berrocal v. Fernandex, 155 Wn. 2d 585 (2005).
3. In re F.D. Processing, 119 Wn.2d 452 (1992); See also American Legion Post 32 v. Walla Walla, 116 Wash.2d 1 (1991); State v. Hickok, 39 Wash.App. 664 (1985).
4. See, e.g. State v. Roggenkamp, 153 Wn. 2d 614 (2005). State v. Johnson, 119 Wn.2d 167 (1992).
5. See, State v. Jacobs, 154 Wn. 2d 596, 603 (2005), United States v. Enmons, 410 U.S. 396, 93 S. Ct. 1007, 35 L. Ed. 2d 379 (1973).