                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                          Docket 41645

STATE OF IDAHO,                         )
                                        )
                                                             Boise, August 2014 Term
 Plaintiff-Respondent,                  )
                                        )
                                                             2014 Opinion No. 115
v.                                      )
                                        )
                                                             Filed: October 29, 2014
GARY L. SCHALL,                         )
                                        )
                                                             Stephen W. Kenyon, Clerk
 Defendant-Appellant.                   )
_______________________________________ )

       Appeal from the District Court of the Sixth Judicial District of the State of Idaho,
       Bannock County. Hon. Stephen Dunn, District Judge.

       The decision of the district court is affirmed.

       Sara B. Thomas, State Appellate Public Defender, Boise, for appellant. Shawn F.
       Wilkerson argued.

       Honorable Lawrence G. Wasden, Attorney General, Boise, for respondent.
       Daphne J. Huang argued.
                               _____________________

J. JONES, Justice
        Gary Schall was arrested for driving under the influence of alcohol. Schall had two prior
convictions for driving under the influence within the previous ten years, one of which stemmed
from a 2004 arrest in Wyoming. As a result of his prior convictions, the State enhanced his DUI
charge to a felony pursuant to Idaho Code section 18-8005(6). At Schall’s preliminary hearing,
the magistrate found that there was probable cause to bind the case over to district court. Schall
filed a motion to dismiss in the district court, arguing that the State had the burden at the
preliminary hearing to provide probable cause to believe his Wyoming DUI conviction was for a
“substantially conforming foreign criminal violation,” that the State failed to meet that burden,
and that the Wyoming conviction was not in fact a substantially conforming violation. The
district court denied Schall’s motion, finding that the State met its burden at the preliminary
hearing and that the Wyoming statute substantially conformed to Idaho’s DUI statute. Schall
appealed the district court’s denial of his motion to dismiss and the Court of Appeals reversed.
                                                 1
The State then petitioned this Court for review, which we granted.
                                        I.
                         FACTUAL AND PROCEDURAL HISTORY
       On August 8, 2011, Gary Schall was arrested for driving under the influence in violation
of Idaho Code section 18-8004(1)(a). The State’s complaint included an enhancement which
elevated the charge from a misdemeanor to a felony under Idaho Code section 18-8005(6). That
provision states that a person who is guilty of violating Idaho Code section 18-8004(1) and “who
previously has been found guilty of . . . two (2) or more violations of [I.C. § 18-8004(1)(a), (b),
or (c)] or any substantially conforming foreign criminal violation, or any combination thereof,
within ten (10) years . . . shall be guilty of a felony.” I.C. § 18-8005(6). At the time of his arrest,
Schall had two prior DUI convictions within the last ten years: a November 2004 conviction in
Idaho and a September 2004 conviction in Wyoming.
       The State offered self-authenticating, certified records of Schall’s two prior DUI
convictions at the preliminary hearing, with no objection from Schall. At the close of the
preliminary hearing, Schall moved to dismiss, arguing that the State did not provide probable
cause to believe he committed the felony offense because there was inadequate reason to believe
the Wyoming statute under which he received his DUI conviction substantially conformed to
Idaho’s DUI statute. Schall argued that it was the State’s burden at the preliminary hearing to
place the Wyoming statute into evidence and demonstrate that the statute substantially
conformed to Idaho’s. The magistrate disagreed, holding that once records of conviction were
admitted, “it becomes the burden of the defendant to show that the statute is non-complying and
that . . . should be done at the district court level.” Ultimately, the magistrate bound the case over
to district court, finding that the State made a prima facie case.
       In the district court, Schall filed a motion to dismiss, making the same argument he did
below—that the State failed to show probable cause because it did not demonstrate that the
Wyoming statute substantially conformed to the Idaho statute. In the alternative, Schall argued
that the Wyoming statute did not substantially conform to the Idaho statute. The district court
denied Schall’s motion to dismiss. It found that the State was not required to show probable
cause at the preliminary hearing that the Wyoming DUI statute substantially conformed to
Idaho’s. It also found, however, that the Wyoming statute does in fact substantially conform to
Idaho’s. Thereafter, Schall entered a conditional guilty plea to felony DUI, reserving the right to

                                                  2
appeal “the decision on defendant’s motion to dismiss/challenge bind over.” The district court
imposed a unified sentence of five years, with two years fixed, but suspended the sentence and
placed Schall on probation. Schall timely appealed.
           The Court of Appeals reversed the district court and remanded for further proceedings. It
held that the State had the burden at the preliminary hearing to provide probable cause to believe
that the Wyoming DUI statute substantially conformed to Idaho’s statute and that the State failed
to carry that burden. This Court granted the State’s petition for review. The only issue on appeal
is whether the district court erred in denying Schall’s motion to dismiss because the State failed
to show probable cause that Wyoming’s DUI statute substantially conforms to Idaho’s DUI
statute.
                                                II.
                                             ANALYSIS
    A. Standard of review.
           “In cases that come before this Court on a petition for review of a Court of Appeals
decision, this Court gives serious consideration to the views of the Court of Appeals, but directly
reviews the decision of the lower court.” State v. Oliver, 144 Idaho 722, 724, 170 P.3d 387, 389
(2007). A magistrate’s decision that probable cause exists “should be overturned only on a clear
showing that the committing magistrate abused his discretion.” State v. O’Mealey, 95 Idaho 202,
204, 506 P.2d 99, 101 (1973). In reviewing a discretionary decision on appeal, “this Court must
consider whether the district court (1) correctly perceived the issue as one of discretion; (2) acted
within the outer boundaries of its discretion and consistently with the legal standards applicable
to the specific choices available to it; and (3) reached its decision by an exercise of reason.” Sun
Valley Potato Growers, Inc. v. Texas Refinery Corp., 139 Idaho 761, 765, 86 P.3d 475, 479
(2004). In general, “[t]he denial of a motion to dismiss following a preliminary hearing will not
be disturbed on appeal if, under any reasonable view of the evidence including permissible
inferences, it appears likely that an offense occurred and that the accused committed it.” State v.
Holcomb, 128 Idaho 296, 299, 912 P.2d 664, 667 (Ct. App. 1995).
    B. The district court did not err in denying Schall’s motion to dismiss.
           When charged with a felony, a defendant is entitled to a preliminary hearing before a
magistrate. I.C.R. 5.1(a). “The function of a preliminary hearing in Idaho is to determine if an
offense has been committed, and further if there is probable cause to believe that the crime was
committed by the accused.” State v. Elisondo, 114 Idaho 412, 414, 757 P.2d 675, 677 (1988). If
                                               3
the magistrate finds that an offense occurred and there is probable cause to believe the defendant
committed it, the magistrate must bind the defendant over to the district court. I.C. § 19-815.
Otherwise, the magistrate must dismiss the complaint and order the defendant released. I.C. § 19-
814. A defendant who has been bound over to the district court may still challenge the finding of
probable cause by filing a motion to dismiss. I.C. § 19-815A. If the district court disagrees with
the magistrate regarding the existence of probable cause, the district court must dismiss the
complaint and order the defendant released. Id. A finding of probable cause must “be based upon
substantial evidence upon every material element of the offense charge.” I.C.R. 5.1(b). As a
result, the adequacy of a showing at the preliminary hearing stage may depend upon whether a
particular factual allegation is an element of the offense charged.
       Schall claims that the district court erred in denying his motion to dismiss because the
State failed to provide probable cause with respect to one element of the offense of which he was
charged. In particular, Schall claims that the State did not provide probable cause to believe he
was previously convicted at least twice under Idaho’s DUI statute or a substantially conforming
foreign statute. Idaho Code section 18-8004 prohibits driving under the influence of alcohol,
drugs, or any other intoxicating substances. Idaho Code section 18-8005(6) provides:
       Except as provided in section 18-8004C, Idaho Code, any person who pleads
       guilty to or is found guilty of a violation of the provisions of section 18-
       8004(1)(a), (b) or (c), Idaho Code, who previously has been found guilty of or has
       pled guilty to two (2) or more violations of the provisions of section 18-
       8004(1)(a), (b) or (c), Idaho Code, or any substantially conforming foreign
       criminal violation, or any combination thereof, within ten (10) years,
       notwithstanding the form of the judgment(s) or withheld judgment(s), shall be
       guilty of a felony . . . .
Schall claims that Idaho Code section 18-8005(6) creates a separate offense—distinct from the
offense defined by Idaho Code section 18-8004—with prior convictions of the relevant sort as
elements of that offense. If that view were correct, then the State would have been required to
present evidence at the preliminary hearing that Schall’s prior Wyoming conviction was a
substantially conforming violation.
       That reading of the provision is not correct, however. Idaho Code section 18-8005(6)
requires that a violation of Idaho Code section 18-8004 be enhanced to a felony in certain
circumstances. The existence of two or more convictions under Idaho Code section 18-8004, or
some substantially similar statute, are predicates for the enhancement and not elements of a

                                                 4
separate offense. “[E]nhancements are not considered to be a new offense for which there is a
separate sentence. Rather, the enhancement is an additional term and is part of a single sentence
for the underlying crime.” State v. Burnight, 132 Idaho 654, 658–59, 978 P.2d 214, 218–19
(1999). As a result, we hold that the State was not required at the preliminary hearing to provide
probable cause to believe that Schall’s Wyoming DUI conviction was a substantially conforming
foreign criminal violation.
        The question whether prior convictions discussed in Idaho Code section 18-8005(6)
constitute elements of an offense or predicates for an enhancement is an issue of statutory
interpretation. “This Court exercises free review over legal questions presented by the
construction and application of a statute.” State v. Montgomery, 135 Idaho 348, 349–50, 17 P.3d
292, 293–94 (2001). “Where the language of a statute is plain and unambiguous, this Court must
give effect to the statute as written, without engaging in statutory construction.” State v. Rhode,
133 Idaho 459, 462, 988 P.2d 685, 688 (1999). “When the Court must engage in statutory
construction, it has the duty to ascertain the legislative intent, and give effect to that intent.” Id.
“Where ambiguity exists as to the elements or potential sanctions of a crime, this Court will
strictly construe the criminal statute in favor of the defendant.” Id.
        There are a number of reasons to think that Idaho Code section 18-8005(6) is clearly an
enhancement provision and not an attempt to create a separate offense. First, Idaho Code section
18-8005(6) is part of a section titled “Penalties.” That fact suggests that the section is concerned
with the penalties associated with offenses that have already been defined, not with defining new
offenses. Second, the provision is addressed directly to recidivism. Recidivism is “as typical a
sentencing factor as one might imagine.” Almendarez-Torres v. United States, 523 U.S. 224, 230
(1998). The focus on recidivism suggests that the Legislature was concerned with providing
increased punishment for repeat offenders, not on defining a new offense. Third, Idaho Code
section 18-8005 specifically refers to Idaho Code section 18-8005(6) as an enhancement
provision. Idaho Code section 18-8005(8) provides rules for determining whether two previous
convictions or guilty pleas occurred within the relevant time frame to trigger the felony
provisions of Idaho Code section 18-8005. According to Idaho Code section 18-8005(8), the
provision is “[f]or the purpose of computation of the enhancement period in subsections (4), (6),
and (9) of this section . . . .” (emphasis added).
        Furthermore, it is not clear how to read Idaho Code section 18-8005(6) as defining a new
                                                     5
offense. The provision applies to a defendant who has just been convicted of, or has pled guilty
to, a violation of Idaho Code section 18-8004. Such a defendant is guilty of a felony if, on at
least two previous occasions within the previous ten years, he has previously been convicted of,
or pled guilty to, a violation of Idaho Code section 18-8004 or a substantially conforming foreign
statute. The provision is not plausibly read as making it unlawful—and a felony—to be convicted
of a third violation of Idaho Code section 18-8004. So understood, the felony offense would not
even occur until after the defendant’s trial for the most recent violation of Idaho Code section 18-
8004. It is unlikely that the Idaho Legislature intended to make it a crime to be convicted of
another crime. On the other hand, the felony offense does not occur when the defendant drives
under the influence, even if he does so having been convicted twice before under Idaho Code
section 18-8004. Though a defendant will thereby have committed the offense of violating Idaho
Code section 18-8004, he will not have violated the offense defined by Idaho Code section 18-
8005(6) because he has not yet been convicted of the additional violation of Idaho Code section
18-8004. The clear terms of Idaho Code section 18-8005(6) state that it applies only to a
defendant who has just been convicted of, or pled guilty to, a violation of Idaho Code section 18-
8004.
        The attempt to read an offense into Idaho Code section 18-8005(6) leaves it significantly
unclear when that offense would be committed and by what conduct. Had the Legislature
intended to define a new offense of the sort suggested by Schall, it could have easily done so by
making it unlawful, and a felony, to drive under the influence having twice before been
convicted of, or having pled guilty to, Idaho Code section 18-8004 or a substantially similar
statute. The fact that it did not do so suggests that in a prosecution pursuant to Idaho Code
section 18-8005(6), the offense at issue is the violation of Idaho Code section 18-8004 and that
very offense may be charged either as a misdemeanor or a felony depending upon the
defendant’s prior criminal history.
        Finally, reading Idaho Code section 18-8005(6) as providing an enhancement for certain
violations of Idaho Code section 18-8004—and not as defining a new offense—is consistent with
this Court’s understanding of similar language in other Idaho statutes. For instance, Idaho’s
prohibition statute provided that “[a] person having once been convicted of a violation of any of
the provisions of this article . . . who thereafter violates the provisions hereof, shall be deemed
guilty of a felony . . . .” State v. Holder, 49 Idaho 514, 517, 290 P. 387, 388 (1930). This Court
                                                 6
rejected an argument that the statute “states a different offense from that of possession of
intoxicating liquor, which is declared a misdemeanor; that it purports to state a felony, one of the
elements of which is a prior conviction . . . .” Id. Instead, the Court held that:
   The statute purports to punish the second offense as a felony. When the evidence shows a
   present violation, say for unlawful possession of intoxicating liquor, and also a previous
   conviction for a violation of the prohibitory law, the penalty is increased as for a felony
   to imprisonment in the state penitentiary; that is, the penalty for possession is assessed as
   for a felony.
Id. at 517−18, 290 P. at 389. The Court endorsed the view that the statute functioned as an
enhancement—increasing the punishment of the underlying offense—without defining a new
offense.
       Similarly, like Idaho Code section 18-8005(6), Idaho’s persistent violator statute applies
to a defendant who has recently been convicted of an offense, having been convicted twice
before. The statute provides that:
   Any person convicted for the third time of the commission of a felony, whether the
   previous convictions were had within the state of Idaho or were had outside the state of
   Idaho, shall be considered a persistent violator of law, and on such third conviction shall
   be sentenced to a term in the custody of the state board of correction which term shall be
   for not less than five (5) years and said term may extend to life.
I.C. § 19-2514. In interpreting that statute, this Court has repeatedly held that “[t]he third
conviction of a person of a felony does not constitute a crime. The section merely provides for
punishment, on the third conviction of the accused, in excess of that which might have been
inflicted on him had he not been twice previously convicted.” In re Bates, 63 Idaho 748, 752,
125 P.2d 1017, 1019 (1942). See also, e.g., Balla v. State, 98 Idaho 344, 345, 563 P.2d 402, 403
(1977) (“[T]he provisions of I.C. § 19-2514 do not specify a new crime, but merely provide for
the increased punishment of a person who has three times previously been convicted of a
felony.”); State v. Salazar, 95 Idaho 650, 651, 516 P.2d 707, 708 (1973) (holding that Idaho
Code section 19-2514 does not create a separate offense, rather “it makes possible an
enhancement of punishment for a particular crime when one has previously been convicted of
two felonies. Thus, when a twice-convicted felon is convicted of a third felony he assumes a
status which renders him susceptible to more severe punishment for the offense charged.”).
       “Statutes are construed under the assumption that the legislature was aware of all other
statutes and legal precedence at the time the statute was passed.” Druffel v. State, Dept of
Transp., 136 Idaho 853, 856, 41 P.3d 739, 742 (2002). Because this Court has consistently
                                           7
construed statutory language like that in Idaho Code section 18-8005(6) as providing for
enhancements and not as creating separate offenses, the Legislature presumably intended that
Idaho Code section 18-8005(6) would be similarly construed.
       Schall makes a number of arguments to support the contrary view—that Idaho Code
section 18-8005(6) defines a separate offense. First, Schall cites State v. Moore, 148 Idaho 887,
231 P.3d 532 (Ct. App. 2010), for the proposition that where a statute provides that certain
factors elevate a misdemeanor to a felony, those factors constitute elements of a separate offense.
Moore does not say as much, however. Moore concerned the admissibility of evidence at trial to
support an enhancement of the defendant’s misdemeanor DUI conviction to a felony. Id. at 890–
91, 231 P.3d at 535–36. In a footnote, the court distinguishes between a “charging
enhancement,” in which “an element . . . elevates a charge from a misdemeanor offense to a
felony offense” and a “sentencing enhancement,” which “authorizes or requires increased
penalties for a misdemeanor or a felony in certain circumstance but does not, in the case of a
misdemeanor, elevate the crime to a felony.” Id. at 890 n.2, 231 P.3d at 535 n.2. Though the
Court of Appeal notes this distinction, it does not go on to hold that charging enhancements
always create separate offenses. Moore does not support such a rule and it would be contrary to
our precedent. See Holder, 49 Idaho at 517, 290 P. at 388 (rejecting the argument that a statute
which elevated an offense from a misdemeanor to a felony thereby created a separate offense).
       Schall cites U.S. v. Rodriguez-Gonzales, 358 F.3d 1156 (9th Cir. 2004) as providing
support for such a rule. In Rodriguez-Gonzales, the Ninth Circuit Court of Appeals considered
whether a prior conviction for illegal entry must be explicitly charged in the indictment to
elevate a subsequent misdemeanor conviction to a felony under 8 U.S.C. § 1325(a). Id. at 1160.
The court emphasized the “serious ramifications for a defendant” in the distinction between a
misdemeanor and a felony and held that “[b]ecause the statute changes the substantive nature of
a second illegal reentry from a misdemeanor to a felony, the fact of a previous entry is more than
a sentencing factor and must be charged explicitly.” Id. The decision in Rodriguez-Gonzales has
no application here. First, the government conceded in that case—and prior Ninth Circuit
precedent established—that a previous conviction for illegal entry “is an element of the felony
offense [of § 1325].” Id. (alteration in original) (quoting United States v. Campos-Martinez, 976
F.2d 589, 591 (9th Cir. 1992)). Whether prior DUI convictions are elements of an offense
associated with Idaho Code section 18-8005(6) or merely predicates for an enhancement is
                                                8
precisely the question at issue here. To the extent that the Ninth Circuit’s decision in Rodriguez-
Gonzales relied upon its previous interpretation of the statute at issue in that case—and it is not
clear to what extent it did—the decision does not address the question in this case.
        The question here is what the Idaho Legislature intended to accomplish in enacting Idaho
Code section 18-8005(6). Though the distinction between misdemeanors and felonies entails
serious ramifications for a defendant, it is not clear how that bears on the Legislature’s intent.
Idaho’s persistent violator statute permits a life sentence for a defendant convicted of his third
felony. I.C. § 19-2514. See also State v. Miller, 151 Idaho 828, 834, 264 P.3d 935, 941 (2011)
(holding that it was not an abuse of discretion to sentence a defendant convicted of burglary and
assault with intent to commit robbery to concurrent life sentences). The imposition of a life
sentence is a “serious ramification.” Nevertheless, the persistent violator statute “does not create
a new or separate offense . . . .” Salazar, 95 Idaho at 651, 516 P.2d at 708. The fact that an
enhancement provision has serious ramifications for a defendant tells us nothing about whether
the Legislature intended to define a new offense or to enhance the penalty associated with a pre-
existing offense.
        Schall also cites to this Court’s decision in State v. Howard, 150 Idaho 471, 248 P.3d 722
(2011), for the proposition that Idaho Code section 18-8005(6) creates a separate offense with
prior convictions as an element. Howard was charged with a DUI felony as a result of previous
convictions. Id. at 474, 248 P.3d at 725. 1 After erroneously excluding the State’s evidence of
previous DUI convictions, the district court found Howard not guilty of the felony. On appeal,
the State argued that because the evidentiary ruling was erroneous and because the district court
did not “resolve any factual elements of the offense in favor of Howard,” the defendant could be
retried for felony DUI. Id. at 479, 248 P.3d at 730. This Court rejected that argument and held
the district court’s finding that the defendant was not guilty constituted “an acquittal that triggers
double jeopardy protection.” Id. at 480, 248 P.3d at 731. In doing so, the Court mentioned that
the previous DUI convictions were “necessary elements of the crime,” id. at 479, 248 P.3d at
730, and held that the district court dismissed the case because it concluded the State had failed
to prove those elements. Id. at 480, 248 P.3d at 731. However, Schall fails to note that the Court


1
 Howard was charged in 2008 with a felony pursuant to Idaho Code section 18-8005(5). Howard, 150 Idaho at 474
n.1, 248 P.3d at 725 n.1. That provision was renumbered in 2009 and is now Idaho Code section 18-8005(6), the
provision at issue in this case. Id.
                                                     9
also mentioned that “the district court must have considered whether the State proved the
elements of the enhancement.” Id. at 479, 248 P.3d at 730 (emphasis added). This
characterization is the more correct. Once a defendant is bound over, the State is obligated to
prove the elements of the enhancement. Howard provides no showing what must occur at the
preliminary hearing stage and is of no support for Schall’s position.
       A preliminary hearing is intended “to determine whether or not a public offense has been
committed and whether or not there is probable or sufficient cause to believe that the defendant
committed such public offense.” I.C. § 19-804 (emphasis added). Idaho law does not require that
the State make an affirmative showing at the preliminary hearing that predicates for an
enhancement are satisfied. Because prior convictions are predicates for an enhancement under
Idaho Code section 18-8005(6), the State did not bear the burden at the preliminary hearing to
show that Schall’s Wyoming DUI conviction is a substantially conforming conviction. The
district court did not err in denying Schall’s motion to dismiss on the grounds that the State
failed to make such a showing.
       Though the State is not required to provide probable cause at the preliminary hearing to
believe that the predicates for an enhancement are satisfied in order to bind the defendant over to
the district court, the State nevertheless bears burdens with respect to those predicates. Most
importantly, the State bears the burden at trial to prove beyond a reasonable doubt that the
predicates for the enhancement are satisfied. See Salazar, 95 Idaho at 307, 507 P.2d at 1139
(holding that the State has the burden of proving prior convictions beyond a reasonable doubt for
purposes of persistent violator enhancement). In addition, “[i]n all cases wherein an extended
term of imprisonment is sought as the result of a prior conviction or convictions, the indictment
or information shall set forth the facts on which the extended term of imprisonment is sought.”
I.C.R. 7(c). See also In re Bates, 63 Idaho 748, 752−53, 125 P.2d 1017, 1019 (1942) (holding
that, though Idaho’s persistent violator statute does not create a separate crime, “[i]t was
necessary . . . for the information to charge that defendant was a persistent violator of law, in
order to authorize the judge to impose sentence provided for a persistent violator”). Further,
though not a requirement, the best practice is for the State to make an affirmative showing with
respect to the predicates for an enhancement at the preliminary hearing by properly introducing
the statutes and convictions from foreign jurisdictions. Cf. State v. Miller, 151 Idaho 828, 833,
264 P.3d 935, 940 (2011) (stating that while an indictment or information need not do so to
                                                10
provide adequate notice that the State is seeking an enhancement, “[t]he better and more
dependable practice is a clear statement of what felonies are being relied upon for the
enhancement, along with: the title of the offenses; the dates of conviction; and the state where
the felonies occurred”).
       Finally, this result does not leave a defendant without recourse to challenge the felony
enhancement once in district court. A defendant can do so in either of two ways. First, a
defendant can move in limine to strike the felony enhancement. See, e.g., State v. Schmoll, 144
Idaho 800, 801, 172 P.3d 555, 556 (Ct. App. 2007) (defendant moved in limine to strike a felony
enhancement because the foreign DUI statute allegedly failed to conform to Idaho’s DUI
statute). Second, the defendant may object to the admissibility of evidence purporting to
establish that a foreign conviction is substantially conforming. See, e.g., State v. Moore, 148
Idaho 887, 892, 231 P.3d 532, 537 (Ct. App. 2010) (considering defendant’s argument that the
district court improperly admitted evidence, over the defendant’s objection, concerning foreign
convictions). Both alternatives were available to Schall.
                                             III.
                                         CONCLUSION
       The district court correctly denied Schall’s motion to dismiss and we therefore affirm.

       Chief Justice BURDICK, and Justices EISMANN and HORTON and Justice Pro Tem
KIDWELL CONCUR.




                                                11
