                                                   ,~
                                                   r~LL~



                                         ZO1BUECi1         ~~19.L4i




              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


 THE STATE OF WASHINGTON,                      )           No. 77045-4-I
                                               )
                           Respondent,         )
                                               )           DIVISION ONE
                          v.                  )
                                              )
 KEN V. WU,                                   )            PUBLISHED OPINION
                                              )
                          Appellant.          )            FILED: December 17, 2018
                                              )
          MANN, J.   —   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

[DUIJ.”

          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,
No. 77045-4-1/2


there was insufficient evidence to demonstrate the prior offenses involved drugs or

alcohol. We affirm.



           On August 1, 2016, a Washington State Trooper conducted a traffic stop after

observing a truck driven by Wu weaving between lanes on 1-5. 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.

           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).

       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.

       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.

       During the second phase of trial, the State offered evidence of the following four

prior convictions:



       1   The State dismissed the ignition interlock violation at the beginning of trial.

                                                     -2-
No. 77045-4-1/3


    •   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.

        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.

        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.

        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.




                                          -3-
No. 77045-4-1/4


                                               II.

                                               A.

       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 Wn.2d

722, 116 P.3d 1008 (2005), and Division Two of this court’s decision in State v. Mullen,

186 Wn. App. 321, 345 P.3d 26 (2016), requires the jury, not the court, to determine

that the “prior offenses” involved alcohol or drugs as an element of the crime. We

disagree.

       We review questions of law de novo. State v. Chambers, 157 Wn. 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 Winshir, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368

(1970); State v. Oster, 147 Wn.2d 141, 146,52 P.3d 26(2002). The legislature defines

the elements of a crime. Chambers, 157 Wn. App. at 475 (citing State v. Williams, 162

Wn.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 Wn. App. at 475.




                                         -4-
 No. 77045-4-1/5


                                                               B.

            RCW 46.61.502(1) defines the elements of the crime of DUI.2 Chambers, 157

 Wn. App. at 475. 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),     “[ut is a class B felony.        .   .   if.   .   .   [t]he person has four or more prior

offenses within ten years as defined in RCW 46.61 ~5Q55~”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.

         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 Wn. App. at 477, 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
        2   RCW 46.61.502 provides “[a] person is guilty of driving while under the influence of intoxicating
 liquor, marijuana, or any drug if the person drives a vehicle within this state:
          (a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher
as shown by analysis of the persons breath or blood made under RCW 46.61 .506; or
          (b) The person has, within two hours after driving, a THC concentration of 5.00 or higher as
shown by analysis of the persons blood made under RCW 46.61.506; or
          (c) While the person is under the influence of or affected by intoxicating liquor, marijuana, or any
drug; or
          (d) While the person is under the combined influence of or affected by intoxicating liquor,
marijuana, and any drug.
          ~ Although both Wu and the State agree that the version of RCW 46.61.502(6) in place when Wu
committed his crime elevated his DUI to a “Class C” felony, this appears to be incorrect. In March 2016,
the legislature amended RCW 46.61.502(6) so that a DUI would become a “class B” felony, and this
amendment became effective on June 9, 2016. Laws of 2016, Ch. 87, § 1(6): LAWS OF 2016, at ii. Wu
committed this crime on August 1, 2016. The legislature since amended RCW 46.61 .502(6)(a) to reduce
the number of prior offenses to three. LAWS OF 2017, Ch. 335, § 1(6)(a).

                                                       -5-
No. 77045-4-1/6


       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 Wn. App. at 477. After analyzing State v. Carmen, 118 Wn. 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 Wn.2d 23, 31, 123 P.3d 827 (2005)

(approving the holding in Carmen); and State v. Boss, 167 Wn.2d 710, 71 8-1 9, 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 Wn. App. at 481.

       We confirmed our holding from Chambers in State v. Cochrane, 160 Wn. 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 Wn.

App. 26-27. 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

Wn.2d at 25. More recently, we reconfirmed the holding from Chambers in State v.

B[rd, 187 Wn. App. 942, 945, 352 P.3d 215 (2015) (disagreeing with Mullen).

                                         -6-
No. 77045-4-1/7


          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.

          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 Wn. App. at 324. Relying on Greene, 154 Wn.2d at 727-28, 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.

       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 Wn.2d at 724-25. The district court, relying on State v. Shaffer,

113 Wn. App. 812, 81 8-20, 55 P.3d 668 (2002), overruled by Green, 154 Wn.2d at 722,

agreed.



                                            -7-
No. 77045-4-1/8


        In Shaffer, this court held that RCW 9.94A.310(7), a statute that required a

sentence for a vehicular homicide conviction to be enhanced by two years if the

defendant also had a “prior offense” of reckless driving that was originally charged as a

DUI, violated due process. 113 Wn. App. at 818-19. The Shaffer court “reasoned that

since the statute does not require any proof that an earlier DUI was committed, it

violates due process.” Greene, 154 Wn.2d at 726.

       In Greene, our Supreme Court overruled Shatter and held that RCW

46.61.5055(1 2)(a)(v) was constitutional. 154 Wn.2d at 727-28. In doing so, the court

concluded:

               The statutory definition requires a conviction for negligent driving,
       or other listed offense, originating from a DUI charge. RCW
       46.61 .5055(12)(a)(v). Accordingly the statute requires the State to
       establish that a prior driving conviction involved the use of intoxicating
       liquor or drugs. Thus, due process is satisfied for the purposes of this
       mandatory enhancement if the prior conviction exists and the prosecution
       can establish that intoxicating liquor or drugs were involved in that prior
       offense.

Greene, 154 Wn.2d at 727-28 (footnote omitted). Thus, under Greene, to demonstrate

a prior conviction for reckless driving meets definition of a “prior offense” under RCW

46.61 .5055(14)(a)(xii), the State must establish that intoxicating liquor or drugs were

involved in the event leading to the reckless driving conviction.

       But contrary 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(13) is not an

                                          -8-
 No. 77045-4-1/9


          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.
 Mullen, 186 Wn. App. at 339 (Melnick, J., dis) (citing State v. Chambers, 157 Wn.

App. 465, 468, 237 P.3d 352 (2010); Cochrane, 160 Wn. App. at 27).

          We had the opportunity to consider Mullen in State v. Bird, 187 Wn. App. 945,

352 P.3d 215 (2015). The defendant in                    was charged with felony DUI based on the

predicate offense of vehicular assault. Under RCW 46.61 .502(6)(B)(ii) and RCW

46.61 .5055(4)(b)(ii), a DUI charge can be elevated to a felony DUI when a person has

previously been convicted of vehicular assault while under the influence of alcohol. On

appeal, we disagreed with Mullen, and in reliance on Chambers and Cochrane, held

that whether a prior conviction qualifies as a predicate offense is a threshold question of

law for the court.4 187 Wn. App. at 945-46. We agree with Bird, Chambers, and

Cochrane, and continue to hold that it was a threshold question for the trial court to

determine if Wu’s prior convictions for reckless driving involved intoxicating alcohol or

drugs.5

        The trial court did not err in making the threshold determination of whether Wu’s



          ~ Like the majority in Mullen, the dissent argues that under Greene the question of whether
alcohol was involved in the prior reckless driving convictions is an additional aggravating factor that must
be separately proven as a question of fact. Dissent at 9-10. We respectfully disagree. While Greene
 recognized that due process is satisfied if “the prosecution can establish that intoxicating liquor or drugs
were involved in the prior offense,” the Court did not elevate the involvement of liquor of drugs to an
aggravating factor. Nor did the Court conclude that the involvement of liquor or drugs was an essential
element of the crime. Greene, 154 Wn.2d at 727-28. Whether a prior offense meets the statutory
definition in RCW 46.61.5055(1 4)(a) is not an essential element of the crime. Instead, whether a prior
offense meets the statutory definition is a threshold question of law to be decided by the trial court prior to
admitting the evidence to the jury.
         ~ The trial court considered both Mullen and Bird and concluded that the dissent in Mullen and
this court’s decision in ~jjc~ were persuasive.

                                                   -9-
 No. 77045-4-1/10


four prior convictions qualified as “prior offenses” before submitting the convictions to

the jury.

                                              III.

        Wu argues alternatively that if the trial court did have the authority to make the

threshold determination, there was insufficient evidence to demonstrate his two prior

convictions for reckless driving involved intoxicating alcohol or drugs. We disagree.

       We first consider Wu’s reckless driving conviction from the Snohomish County

District Court. The State presented certified copies of the original criminal complaint

and the district court’s judgment and sentence. The original complaint, signed under

penalty of perjury by the deputy prosecuting attorney, states that the police reports

indicated that within two hours after driving Wu had “an alcohol concentration of 0.08 or

higher as shown by analysis of the defendant’s breath or blood made under RCW

46.61.506”. The judgment and sentence indicates that the original charge was DUI and

that it was amended to reckless driving. The trial court did not err in concluding that the

Snohomish County District Court conviction for reckless driving was originally charged

as a DUI and involved alcohol.

       We next consider Wu’s reckless driving conviction from the Marysville Municipal

Court. The State presented a certified copy of the police citation and the court’s finding

and sentence. The original citation shows that Wu submitted a breath sample during

the incident that resulted in a BAC of 0.095. The district court’s finding and sentence

indicates that the original charge was DUI and that it was amended to reckless driving.

The trial court did not err in concluding that the Marysville District Court conviction for

reckless driving was originally charged as a DUI and involved alcohol.

                                           -10-
No. 77045-4-I/il


      We affirm Wu’s conviction for felony DUI.




                                                      /
                                                  /
WE CONCUR:




                   /i~f
                      /




                                       —ii—
                               State v. Wu, No. 77045-4-I

          BECKER, J. (dissenting)   —   I respectfully dissent. This court should follow

the analysis of RCW 46.61 .5055(14)(a)(xii) used in State v. Mullen, 186 Wn. App.

    321, 337, 345 P.3d 26(2015) and foreshadowed in City of Walla Walla v.

    Greene, 154 Wn.2d 722, 116 P.3d 1008 (2005), cert denied, 546 U.S. 1174, 126

S. Ct. 1339, 164 L. Ed. 2d 54 (2006). The penalty for a current conviction for

driving under the influence (DUI) cannot be enhanced merely because a prior

reckless driving conviction was originally filed as a DUI. Any time a judge’s

authority to prescribe a particular sentence depends on an additional fact other

than the fact of a prior conviction, that fact must be proven by the jury’s verdict or

admitted by the defendant. Blakely v. Washington, 542 U.S. 296, 305, 124 5. Ct.

2531, 159 L. Ed. 2d 403 (2004). Absent an admission by the defendant, due

process requires that the involvement of alcohol or drugs in a reckless driving

conviction must be proved by the State as a fact in addition to the conviction

itself.

          Appellant Ken Wu’s 2016 violation of the DUI statute, ordinarily a gross

misdemeanor, would become a felony if the State could prove Wu had four “prior

offenses” within 10 years. Former RCW 46.61.502(5), (6)(a) (201 6).1 Many

types of convictions fit within the definition of “prior offense.” RCW

46.61 .5055(14)(a). The State offered Wu’s two prior convictions for reckless


1Three convictions, not four, are required under the current version of the statute
as the result of an amendment in 2017. Former RCW 46.61 .502(6)(a) (2016)
was amended by LAWS0F 2017, ch. 335 § 1 (eff. July 23, 2017).
No. 77045-4-I, dissent / 2

46.61.5055(14)(a). The State offered Wu’s two prior convictions for reckless

driving and his two prior convictions for DUP. Only his two prior convictions for

reckless driving are at issue here.

       The statute provides that a conviction for reckless driving qualifies as a

“prior offense” if it is the result of a charge that was originally filed as a violation

of the DUI statute. RCW46.61.5055(14)(a)(xii).2 Wu’s prior convictions for

reckless driving on October 13, 2015 and March 29, 2016 were each originally

filed as a DUI.

       Wu moved to dismiss the felony DUI charge, citing Mullen.3 The trial court

denied the motion. Mullen, a split decision from Division Two, is the leading case

on the use of prior reckless driving convictions as enhancements. The trial court

found the dissent in Mullen more persuasive and also more consistent with a

Division One opinion, State v. Bird, 187 Wn. App. 942, 943, 352 P.3d 215, review

denied, 184 Wn.2d 1013, 360 P.3d 818 (2015).~ The trial court counted Wu’s



2 “A ‘prior offense’ means. [a] conviction for a violation of RCW 46.61.5249
                              .   .



[first degree negligent driving], 46.61 .500 [reckless driving], or 9A.36.050 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 or 46.61.504, or an equivalent
local ordinance, or of RCW 46.61.520 or 46.61.522.” RCW
46.61 .5055(14)(a)(xii).
~ In Mullen, the statute at issue was former RCW 46.61 .5055(14)(a)(x); for
purposes of this opinion it remains the same though it is now codified as RCW
46.61 .5055(14)(a)(xii).
~ When conflicting Court of Appeals decisions exist, a superior court need not
consider itself bound by the opinion from the division in which the superior court
sits, but should instead use its judgment to attempt to determine which opinion
the Supreme Court would agree with. See Mark DeForrest, In the Groove or in a
Rut? Resolving Conflicts between the Divisions of the Washington State Court of
Arpeals at the Trial Court Level, 48 Gonz. L. Rev. 455 (2012/1 3), cited with
approval in Grisby v. Herzog, 190 Wn. App. 786, 809, 362 P.3d 763 (2015).
                                            2
    No. 77045-4-I, dissent I 3

reckless driving convictions as ‘prior offenses” based on documents showing that

each case had originally been filed as a DUI.5

          To understand how the uncertainty has developed, one must go back to

State v. Shaffer, 113 Wn. App. 812, 55 P.3d 668 (2002), a Division One opinion.

The defendant in Shaffer was convicted of vehicular homicide. He had a prior

conviction for reckless driving that was originally filed as a DUI. The State

argued for a mandatory 24-month sentence enhancement based on the reckless

driving conviction being a “prior offense.”6 Shaffer rejected this argument.

“Because the sentence enhancement deprives Shaffer of his liberty based on an

unproven allegation of DUI in a criminal case resulting in a reckless driving

conviction, we hold that the statute is unconstitutional and violates Shaffer’s due

process rights.” Shaffer, 113 Wn. App. at 822.

          The issue next arose in Greene, 154 Wn.2d 722. The defendant in

Greene, convicted of DUI, had a prior conviction for first degree negligent driving

that was originally filed as a DUI. A conviction for first degree negligent driving

counts as a “prior offense” under the statute defining that term.7 But unlike a

conviction for reckless driving (the fact pattern in Shaffer), a conviction for first

degree negligent driving necessarily requires proof beyond a reasonable doubt

that the driver exhibited the effects of alcohol or drug use. Compare RCW


~ Report of Proceedings at 688-90.
6 In Shaffer, the statute at issue was former RCW 46.61.5055(1 1)(a)(v); for
purposes of this opinion, it remains the same though it is now codified as RCW
46.61 .5055(14)(a)(xii).
~ In Greene, the statute at issue was former RCW46.61.5055(12)(a)(v); for
purposes of this opinion, it remains the same though it is now codified as RCW
46.61 .5055(14)(a)(xii).
                                           3
    No. 77045-4-I, dissent/4

46.61.500(1) (reckless driving), with RCW 46.61 .5249(1 )(a) (first degree

    negligent driving). The State argued for a mandatory 24-month sentence

enhancement based on the negligent driving conviction being a “prior offense.”

The trial court rejected this argument, following Shaffer. On direct review, the

Supreme Court reversed. The court did not say the result in Shaffer was wrong,

but the court overruled Shaffer’s blanket holding that the statute defining “prior

offense” to include an unproven charge of DUI was unconstitutional. “Subject

only to the constraints of the constitution, the legislature may define and punish

criminal conduct.” Greene, 154 Wn.2d at 727. The court concluded that the

definition of “prior offense,” currently codified as RCW 46.61 .5055(14)(a)(xii),

satisfies due process under two conditions: if the prior conviction exists and if

“the prosecution can establish that intoxicating liquor or drugs were involved in

that prior offense.” Greene, 154 Wn.2d at 727-28. On the facts in Greene, there

was no due process violation because proving the elements of first degree

negligent driving necessarily proved the involvement of liquor or drugs:

         For Greene, the fact that she was convicted of first degree
         negligent driving is sufficient to satisfy her due process protections
         because all elements of that offense are established by virtue of the
         conviction itself. Accordingly, we hold that here, RCW
         46.61.5055(1 2)(a)(v) survives constitutional challenge.

Greene, 154 Wn.2d at 728 (emphasis added).

          Mullen was the next case to consider the due process implications of the

statute discussed in Shaffer and Greene.8 The defendant’s violation would have


8In Mullen, the statute at issue was former RCW 46.61 .5055(14)(a)(x); for
purposes of this opinion it remains the same though it is now codified at RCW
46.61 .5055(14)(a)(xii).
                                           4
No. 77045-4-I, dissent / 5

been a misdemeanor, but he was convicted of felony DUI because he had a prior

conviction for reckless driving that was originally filed as a DUI. The Mullen

majority followed Greene’s holding that the State had to prove Mullen’s reckless

driving conviction involved alcohol or drugs in order to satisfy due process. But

the majority distinguished Greene on the basis that the prior conviction used for

enhancement in Greene was first degree negligent driving, not reckless driving.

“The difference in Mullen’s case is that the State cannot prove that alcohol or

drugs were involved merely by virtue of his conviction for reckless driving.”

Mullen, 186 Wn. App. at 334.

       The State argued in Mullen, as it does in the present case, that counting

the reckless driving conviction as a “prior offense” satisfied the statute because a

docket sheet confirmed that Mullen was originally charged with DUI, and it

satisfied due process because a motion to suppress the blood alcohol test results

in the reckless driving case showed that the reckless driving conviction was

alcohol or drug related as required by Greene. Mullen, 186 Wn. App. at 334. The

court rejected the State’s argument for three sound reasons:

             First, it ignores the Greene court’s reasoning in overruling
      Shaffer. The court overruled Shaffer because it disagreed that the
      felony DUI statute required the State to prove the underlying DUI.
      Greene, 154 Wn.2d at 727. The court held that the legislature
      sought to apply felony DUI only to those defendants who were
      convicted of multiple alcohol- or drug-related offenses. Greene,
      154 Wn.2d at 727-28. The way to accomplish this is to prove that
      alcohol or drugs were involved in the prior offense and does not
      require the State to reprove the offense.

              Second, the State’s argument is misguided because if the
      Greene court sought merely to require the State to prove that (1)
      the prior conviction existed and (2) the prior conviction was
      originally charged as a DUI, the Greene court could have relied

                                         5
No. 77045-4-I, dissent I 6

          solely on the language of the statute. ~ RCW
          46.61 .5055(14)(a)(x). Instead Greene states that due process
          requires the State to “establish” that alcohol or drugs were involved.
          154 Wn.2d at 728.

               Finally, the State’s argument ignores the fact that the
       defendant in Greene pleaded guilty to first degree negligent driving
       and that alcohol or drugs are an essential element of that offense.
       RCW 46.61.5249; see also 154 Wn.2d at 728. This is an important
       difference from Mullen’s case because Greene was convicted
       beyond a reasonable doubt of an alcohol- or drug-related offense.
       Mullen, in contrast, pleaded guilty to a non-alcohol- or non-drug-
       related prior offense, reckless driving, which the State now seeks to
       use to convict him of a more serious alcohol- or drug-related
       offense.

Mullen, 186 Wn. App. at 335.

          For the reasons given in Mullen, we should reject the virtually identical

argument the State makes in Wu’s case. As the State interprets Greene, a prior

reckless driving conviction will enhance the penalty for a current DUI conviction if

the State shows that the prior offense was initially filed as a DUI. Br. of Resp’t at

9. This is wrong. A reckless driving conviction does not inherently involve

alcohol or drugs. Greene does not hold that an accusation equals proof.

       The State’s position is unsatisfactory practically as well as legally. First, it

creates a dubious template for the drafting of future statutes. For example, the

State’s reasoning would support a “three strikes” statute that counted a prior

conviction for shoplifting as a strike merely because it was initially filed as a

robbery. Second, allowing the State’s initial accusation to serve as proof creates

an incentive to overcharge and then amend to a lesser charge that can be

proved.




                                            6
No. 77045-4-I, dissent / 7

        The majority relies on a line of cases holding that the fact of a prior

conviction is a threshold question for the judge to decide. See, ~ Bird, 187

Wn. App. at 943; State v. Cochrane, 160 Wn. App. 18, 27, 253 P.3d 95 (2011);

State v. Chambers, 157 Wn. App. 465, 468, 237 P.3d 352 (2010), review denied,

170 Wn.2d 1031, 249 P.3d 623 (2011). These cases are applicable when an

enhanced penalty depends solely on the existence and legal nature of a prior

conviction. State v. Allen,      Wn. App.     ~,   425 P.3d 529, 532 (201 8). But the

statute we are concerned with uses the defined term “prior offense,” a term that

is broader than a conviction. Allen, 425 P.3d at 532. The majority overlooks this

distinction.

       Allen was governed by the same statute as .~Jt~—under RCW

46.61 .502(6)(b)(ii), a conviction for DUI is elevated from a misdemeanor to a

felony if the person was ever previously convicted of vehicular assault while

under the influence. Vehicular assault can be committed by three alternative

means, only one of which requires proof that the defendant was under the

influence. RCW 46.61.522(b). In both Bird and Allen, the DUI defendant had a

prior conviction for vehicular assault as the result of a guilty plea. In each case,

the defendants argued that the record of the prior conviction for vehicular assault

did not clearly show the offense was committed by the means requiring proof of

operating under the influence. In each case, the appellate court analyzed that

argument by looking at the prior guilty plea. In each case, the prior guilty plea

encompassed all three charged means of vehicular assault, including the means

necessary for a later DUI enhancement. In each case, the appellate court held


                                          7
No. 77045-4-I, dissent I 8

that determining whether the vehicular assault conviction could be admitted for

enhancement purposes was a question of law for the court.

       There is a critical distinction between enhancing a DUI sentence with a

prior conviction for vehicular assault under RCW 46.61 .502(6)(b)(ii), as was done

in Bird and Allen, and enhancing a DUI sentence with a ‘prior offense” of

reckless driving under RCW 46.61 .5055(14)(a)(xii)—the fact pattern in Mullen

and Wu’s case. To enhance the penalty for a current DUI, a prior conviction for

vehicular assault does not have to be originally filed as a DUI. RCW

46.61 .502(6)(b)(ii); see also RCW 46.61 .5055(14)(a)(i) (a vehicular assault

conviction does not have to be originally filed as a DUI to be a “prior offense”).

The Allen court noticed and explained the distinction, and in doing so cited

Mullen with approval:

              Whether a prior vehicular assault conviction qualifies to
      elevate a DUI charge from a misdemeanor to a felony involves issues
      of fact and law. Factually, the State must prove the conviction exists
      and pertains to the defendant. But once this burden is satisfied, the
      rest of the inquiry is purely legal. The nature of a prior conviction, and
      the facts established thereby, are set at the time of a verdict or guilty
      plea. Descamps v. United States, 570 U.S. 254, 269-70, 133 5. Ct.
      2276, 186 L .Ed. 2d 438 (2013); In re Pers. Restraint of Laverv, 154
      Wn.2d 249, 258, 111 P.3d 837 (2005). They cannot be altered or
      revisited at a subsequent evidentiary hearing or trial.

              Our inquiry would be different had the penalty statute at issue
      in this case not been limited in application to a prior “conviction.” For
      example, RCW 46.61 .502(6)(a) currently permits elevating a DUI
      from a misdemeanor to a felony based on three or more “prior
      offenses.” The term “prior offense” is broader than a conviction. RCW
      46.61.5055(14)(a). It includes (among other things) convictions
      accompanied by additional aggravating facts. j~ Additional
      aggravating facts are matters that can be the subject of a new fact
      finding proceeding. State v. Mullen, 186 Wn. App. 321, 334, 345 P.3d
      26 (2015) (citing State v. Roswell, 165 Wn.2d 186, 194, 196 P.3d
      705 (2008)). But when it comes to the core issue of what was

                                          8
No. 77045-4-I, dissent I 9

       established by a prior conviction, no additional factual inquiry
       applies.

             Because the nature of a prior conviction is a legal matter, it is
       something for the court to decide, not a jury. See State v. Miller, 156
       Wn.2d 23, 31, 123 P.3d 827 (2005).

Allen, 425 P.3d at 532.

       Bird is consistent with Allen in stating, correctly, that the nature of a prior

conviction is purely a legal matter. “Whether a prior conviction qualifies as a

predicate offense is a threshold question of law for the court, and not an essential

element of the crime of felony DUI.” Bird, 187 Wn. App. at 945. But Bird follows

up this statement with an unnecessary and inaccurate criticism of Mullen: “In

Mullen, a divided court held that the trial court erred in not instructing a jury that

the State was required to prove beyond a reasonable doubt that alcohol or drugs

were involved in the prior conviction for reckless driving. But the issue of

whether that conviction qualifies is a question of law, not fact.” Bird, 187 Wn.

App. at 945. .~jjç~ misstates the holding of Mullen as if it turned on the use of a

prior conviction for enhancement without any other facts. What Mullen holds is

that a prior conviction for reckless driving qualifies as a “prior offense” for

enhancement purposes only when it is accompanied by the additional

aggravating fact that it was for a violation initially filed as a DUI. RCW

46.61 .5055(14)(a)(xii).

       Ultimately, all three cases—Mullen, Bird, and Allen—reach correct results

that are consistent with Greene. In Greene, the State did not have to prove that

the “prior offense” of first degree negligent driving involved alcohol or drugs

because that fact was “established by virtue of the conviction itself.” Greene, 154

                                           9
No. 77045-4-I, dissent! 10

Wn.2d at 728. In Bird and Allen, the State had only to prove a prior conviction for

vehicular assault; no additional aggravating fact was required to satisfy due

process. In Mullen, the State had to prove an additional aggravating fact and

failed to do so.

       Cochrane and Chambers are the other cases cited by the majority for the

proposition that a “prior offense” is always a threshold question of law for the

court to decide. Cochrane and Chambers are not on point. They do not address

the unique definition of “prior offense” that allows a prior conviction for reckless

driving to be used for enhancement based solely on how it was originally

charged, regardless of whether drugs or alcohol were involved. Because the

predicate offenses were all prior DUI convictions, Greene was not discussed.

Like the first degree negligent driving conviction in Greene, a DUI conviction

inherently establishes the use of alcohol or drugs that is why Wu does not

challenge the use of his two prior DUI convictions. The issue here is what the

State must additionally prove when the predicate offense does      jj~   inherently

establish the use of alcohol or drugs and its admissibility for enhancement

depends on what charge the State originally filed. That issue was not present in

Cochrane or Chambers.

       The additional fact necessary to make a prior reckless driving conviction

qualify as a “prior offense” can be established by jury fact-finding, as the

defendant proposed in Mullen and as Wu proposed in the present case. Or in

some cases it can be determined by the court as a matter of law, but only if the

record of that prior conviction shows that the defendant stipulated or admitted to


                                          10
No. 77045-4-I, dissent /11

involvement of drugs or alcohol. Cf In re Pers. Restraint of Laverv, 154 Wn.2d

249, 255, III P.3d 837 (2005). Otherwise, allowing a court to discern drug or

alcohol involvement from the underlying facts of the reckless driving conviction

“proves problematic.” Lavery, 154 Wn.2d at 258. Here, the trial court did not

submit the issue to the jury. And the documents with which the State attempted

to establish admissibility of the two “prior offenses” of reckless driving did not

include Wu’s stipulation or admission to drug or alcohol involvement. The

documents merely showed that the reckless driving convictions were originally

filed as DUIs. Filing a charge is only an accusation. It is not proof.

       The correct result in the present case, under Greene and Mullen, is to

reverse the felony DUI conviction. The prosecution did not “establish that

intoxicating liquor or drugs were involved” in Wu’s prior reckless driving

convictions. Greene, 154 Wn.2d at 728.

       The parties agree that if the felony conviction is reversed, it is appropriate

to remand for entry of a DU! misdemeanor conviction, as was done in Mullen,

186 Wn. App. at 337. The jury was instructed on and found the elements for

gross misdemeanor DUI in the initial phase of Wu’s bifurcated trial. ~ In re

Pers. Restraint of Heidari, 174 Wn.2d 288, 293-94, 274 P.3d 366 (2012). The

case should be remanded for entry of a conviction for misdemeanor DUI.




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