                                                                    This opinion was
     IN CLERK* OFFICE     X
                                                                     filed for record
     rCOURT,SCVE OF WASNtNSTQN
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       A   X                                                     Susan L. Carlson
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                                                                Supreme Court Clerk




           IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,
                                                        No. 96747-4
                        Respondent,

               V.

                                                        En Banc
KENV. WU,

                        Petitioner.                     Filed      DEC 1 2 2019
                                                J


       MADSEN,J.—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 ROW 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.
No. 96747-4



                                          FACTS


       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.

       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.

       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
No. 96747-4



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.

       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.

       Division One of the Court of Appeals affirmed Wu's conviction in a split decision.

State V. Wu,6 Wn. 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,' leaving to the jury the issue of whether the prior

convictions existed. M at 687-89. This court granted Wu's petition for review. 193

Wn.2d 1002.




'The majority's holding included the determination of whether Wu's prior reckless driving
convictions involved alcohol. Wu,6 Wn. App. 2d at 688.
No. 96747-4



                                         ANALYSIS^

       DUI Felony Statutes and Their Requirements

       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."^ Former RCW

46.61.5055(14)(a)(xii) defines "prior offenses" for purposes ofthe felony DUI statute as

including "[a] conviction for a violation ofRCW 46.61.5249 [negligent driving],

46.61.500 [reckless driving], or 9A.36.050 [reckless endangerment] or an equivalent

local ordinance, ifthe conviction is the result ofa charge that was originallyfiled as a

violation o/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),'^ 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


        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


^ The primary issue in this ease is, what are the required elements for felony DUI?
Determination ofthat issue disposes of all other contentions.
^ RCW 46.61.502(6)(a) was amended in 2017 to require only three such prior offenses to elevate
a DUI to a felony. See Laws of 2017, eh. 335, § 1.
^ The 2016 version of RCW 46.61.5055(14)(a)(xii) and the current version of this definitional
statute are identical.
^ Wu challenges only the inclusion of his two prior convictions for reckless driving.
No. 96747-4



decision in State v. Mullen, 186 Wn. 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.

      Mullen extrapolated this court's decision in City of Walla Walla v. Greene, 154

Wn.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 offelony DUI that must

be proved beyond a reasonable doubt and to a jury." Mullen, 186 Wn. App. at 328

(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.

      Division One below disagreed with the Mullen majority about Greene'?, 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:

      [Cjontrary 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 ROW 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 Wn. App. 2d at 687-88 (quoting Mullen, 186 Wn. App. at 339(Melnick, J.,

dissenting)).
No. 96747-4



       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 ofthe same

definitional provision at issue here (overruling State v. Shaffer, 113 Wn. App. 812, 55

P.3d 668 (2002)).® 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 ofRCW 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 Wn. App. at 818("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 ofthe 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.




® At the time of the Greene decision, the statute defining "prior offenses" appeared in former
RCW 46.61.5055(12)(a)(v)(2003).
No. 96747-4



      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 Wn.2d at 726-27. 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 (citing Shaffer, 113 Wn. App. at 818-19).

This court reasoned that the Shaffer court had assumed "that the legislature only included

a prior offense 'where DUI was involved,'" id. at 727 (quoting Shaffer, 113 Wn. App. at

818), 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. The statute then limits applicability to those convictions where
      DUI was the predicate charge, thus requiring alcohol or drugs to be
      involved with the convicted driving offense. No parties dispute the statute
      is constitutional without this limiting DUI element. It follows that with the
      limiting element, the legislature is simply clarifying those alcohol or drug-
      related prior offenses to be considered. While the Shaffer court might be
      correct if the statutory definition of prior offenses listed only unproven
      charges, here, the statute specifies the prior convictions being applied to
      impose an enhanced punishment for a later offense. Subject only to the
      constraints of the constitution, the legislature may define and punish
      criminal conduct. In re Pers. Restraint ofDavis, 142 Wn.2d 165, 172, 12
      P.3d 603 (2000).
             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 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
No. 96747-4



      establish that intoxicating liquor or drugs were involved in that prior
      offense.

154 Wn.2d at 727-28 (emphasis added)(footnote omitted). Holding that former RCW

46.61.5055(12)(a)(v)(now RCW 46.61.5055(14)(a)(xii)) survives constitutional

challenge, this court concluded,"For Greene, the fact that she was convicted of first

degree negligent driving is sufficient to satisfy her due process protections because all

elements ofthat offense are established by virtue ofthe conviction itself" Id. at 728

(emphasis added).

       Turning back to Mullen, that case addressed a prior reckless driving conviction.

As noted, Greene addressed a prior negligent driving conviction. Negligent driving

includes as an express element that the person "exhibits the effects of having consumed

liquor." RCW 46.61.5249. Reckless driving contains an alternative but not a similarly

required alcohol effects element. See RCW 46.61.500. Based on this difference, Mullen

construed the above emphasized language in Greene to impose a new "essential element

of felony DUI" as "involvement of alcohol or drugs." 186 Wn. App. at 328. But that is

the same "DUI involvement" that the Shaffer court assumed and required, and that this

court expressly rejected in Greene. As Greene indicated in rejecting Shaffer, the absence

of any such language in the statute defining prior offenses is dispositive. Further, none of

the above language quoted from Greene can be reasonably construed to add a judicially

imposed new element to the felony DUI statute. Greene did just the opposite by adhering

to the plain language ofRCW 46.61.5055's "prior offenses" definitional statute and

determining that the constitution requires no additions to the plain language of that
No. 96747-4



statute. Accordingly, wc reject Mw/Zen's addition of language to the felony DUI statute's

requirements that are based on Mullen's incorrect reading of Greene.

       Division One, in the present case, rejected Mullen, stating,"While Greene

recognized that due process is satisfied if'the prosecution can establish that intoxicating

liquor or drugs were involved in that prior offense,' the court did not elevate the

involvement of liquor [or] drugs to an aggravating factor. Nor did the court conclude that

the involvement of liquor or drugs was an essential element ofthe crime." Wu,6 Wn.

App. 2d at 688 n.4 (citation omitted)(quoting Greene, 154 Wn.2d at 727-28). Division

One correctly concluded that Greene did not create an additional felony DUI element.

       The Wu court went on to hold,"Whether a prior offense meets the statutory

definition in ROW 46.61.5055(14)(a) is not an essential element ofthe 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." Id. To the extent

Wu can be read to mean that admissibility of the prior convictions is a legal question

properly for the trial court, we approve such approach. "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." State v. Bird, 187 Wn. App. 942, 945, 352

P.3d 215(2015)(citing State v. Chambers, 157 Wn. App. 465, 479, 237 P.3d 352(2010);

State V. Cochrane, 160 Wn. App. 18, 20, 253 P.3d 95 (2011)). As always, the trial court

decides admissibility of evidence, a legal determination; then the jury decides whether

the essential elements of the crime have been proved beyond a reasonable doubt, a

question of fact. As the Bird court explained,"Only prior offenses that meet the statutory
No. 96747-4



definition are admissible as predicate offenses elevating a DUI to a felony." Id.(citing

Chambers, 157 Wn. App. at 479). "Once determined that a prior offense is admissible,

the State can introduce the crime into evidence at the present trial." Id.-, see also State v.

Roswell, 165 Wn.2d 186, 189, 196 P.3d 705 (2008)("Washington has enacted certain

criminal statutes that raise the level of a crime from a misdemeanor to a felony based

upon the defendant's prior criminal convictions. These prior convictions are elements of

the charged crime that the State must prove beyond a reasonable doubt."). Here, the trial

court admitted exhibit 9 containing the State's documentary evidence concerning Wu's

prior convictions. The jury assessed those documents and found by special verdict that

"defendant [has] four or more prior offenses within ten years of August 1, 2016." CP at

119. This was not error.


       Plain Language


       The State effectively contends that both Wu and Mullen misconstrue RCW

46.61.5055(14)(a)(xii) by imposing an element not mentioned in the statute. Indeed, the

plain language of the statute requires only that a reckless driving conviction be originally

filed as a DUI within the preceding 10 years to qualify as a prior offense. The statutory

language does not require any additional showing that the reckless driving conviction

involved alcohol or drugs. See State v. Miller, 156 Wn.2d 23, 31, 123 P.3d 827(2005)

(where the term in question does not appear in the statute, "[it] is not a statutory element

of the crime"); State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792(2003)(courts cannot

add words or clauses to an unambiguous statute when the legislature has chosen not to

include that language; instead the court assumes the legislature means exactly what it

                                              10
No. 96747-4



says). Here, when the legislature enacted the felony DUI statute, it created a new crime

with different elements. It may do so. "Subject only to the constraints of the

constitution, the legislature may define and punish criminal conduct." Greene, 154

Wn.2d at 727 (citing Davis, 142 Wn.2d at 172); see also Roswell, 165 Wn.2d at 192

(legislature may define the elements of a crime when it enacts a criminal statute and each

element must be proved beyond a reasonable doubt). Here, the statutory language

suggests that the legislature intended to enhance penalties for conduct that is initially

charged as a DUI, even if the charges are ultimately reduced or plea bargained to reckless

or negligent driving. The legislature is free to focus on a subset of convictions most

likely to enhance the relevant public safety goal. See State v. Law, 154 Wn.2d 85, 92,

110 P.3d 111(2005)(power of the legislature to establish penalties for criminal offenses

is plenary and subject only to constitutional provisions).

       Thus, all the State needs to establish here for felony DUI purposes is what the

statute expressly requires: that Wu has four "prior offenses" within the preceding 10

years (former RCW 46.61.502(6)(a)) defined to include "[a] conviction for a violation of

. . . 46.61.500 [reckless driving], ... or an equivalent local ordinance, ifthe conviction is

the result ofa charge that was originallyfiled as a violation o/RCW 46.61.502 [DC/7]."

Former RCW 46.61.5055(14)(a)(xii)(emphasis added). In other words, the State must

prove only that Wu has a prior reckless driving conviction that was originally charged as

a DUI, which can be done with documentation as the State did here. This is what the

plain language of the statute requires, nothing more.




                                              11
No. 96747-4



      In light of this determination, Wu's various arguments, which presume that

"involvement of drugs or alcohol" is a required element, fail. Wu contends,"The State

must prove involvement ofalcohol or drugs as part of a 'prior offense' originally charged

as a DUI but amended to another charge." Suppl. Br. of Pet'r at 3(emphasis added). Wu

cites Mullen, Greene, and Shaffer as support, but as discussed above, there is no such

additional element.


       Wu next contends that because involvement ofdrugs or alcohol in the prior

offense of reckless driving is a factual finding that elevates the DUI to a felony, the right

to a jury trial under the Sixth Amendment to the United States Constitution mandates that

the jury, not the court, make that finding. Id. at 9. Wu cites, as support, Blakely v.

Washington, 542 U.S. 296, 301-05, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). As

discussed above, because no such element exists, Wu's contention fails.

       Wu also argues there was insufficient evidence to support a finding that his prior

reckless driving offenses "involved drugs or alcohol." Suppl. Br. ofPet'r at 18. Again,

there is no such requirement. We note that when the State rested in the second part ofthe

bifurcated trial, Wu moved for dismissal, arguing there was insufficient evidence to

sustain a felony DUI conviction. The trial court went through the documentation

submitted by the State in exhibit 9 concerning Wu's prior convictions, noting the dates

when charging documents, citations, and judgment and sentence documents were filed




                                              12
No. 96747-4



and noting details on the record concerning each of Wu's prior convictions.'^ VRP at
684-91. The record shows that both of Wu's prior reckless driving convictions and his

negligent driving conviction were initially charged as DUIs and that his fourth prior

conviction was a DUI. Ex.9. That is all the felony DUI statute required. Wu's

insufficient evidence argument fails.^

       Finally, Wu's assertion that the trial court erred in declining to give his proposed

instruction also fails. "Relying on Mullen,'' defense counsel proposed a jury instruction

that modified 11 Washington Practice: Washington Pattern Jury Instructions: Criminal

92.27 (4th ed. 2016)(WPIC), which tracks the language offormer RCW

46.61.5055(14)(a), by adding the phrase "and the State has proven beyond a reasonable

doubt that the prior incident was alcohol or drug related" to the definition of"prior

offense." Suppl. Br. ofPet'r at 20; CP at 121 (emphasis added). As discussed above,

there is no such element. The trial court did not err in declining Wu's proposed modified

instruction and giving instead the State's proposed instruction, which tracked WPIC

92.27 and former RCW 46.61.5055(14)(a)(xii).



^ The trial court's review on the record additionally noted information such as recorded BAG
(blood alcohol concentration) numbers and other information concerning alcohol involvement.
While this information was not required, the court seemingly included it in an abundance of
caution, as Wu's dismissal motion was based in part on his assertion that the State's evidence did
not show "involvement of drugs or alcohol." The trial court noted it found the dissent in Mullen
persuasive, as well as Division One's decision in Bird, which rejected Mullen. VRP at 684, 690.
The trial court nevertheless noted such information as an additional basis for denying Wu's
midtrial dismissal motion. Id. at 690.
^Addressing Wu's sufficiency challenge, the majority below held that "[t]he trial court did not
err in concluding that [each of Wu's two reckless driving convictions] was originally charged as
a DUI and involved alcohol." Wu,6 Wn. App. 2d at 689(emphasis added). As discussed herein,
any purported involved alcohol determination by the trial court conceming Wu's prior reckless
driving convictions is not required.

                                               13
No. 96747-4



      For these reasons, we affirm Wu's eonviction for felony DUI.

                                     CONCLUSION


       We reject Mw//en's addition of an "involvement of alcohol or drugs" essential

element to felony DUI based on Greene. We clarify that Greene did not alter the

essential elements of felony DUI as set forth in the relevant "prior offenses" definitional

statute, currently ROW 46.61.5055(14)(a)(xii). We hold that following a trial court's

determination of admissibility, the essential elements of felony DUI should be decided by

a jury upon proof by the State beyond a reasonable doubt. We affirm Wu's felony DUI

conviction for the reasons stated herein.




                                             14
No. 96747-4




WE CONCUR:




                   7




              15
State V. Wu




                                      No. 96747-4


      JOHNSON, J.(dissenting)—A criminal charge proves nothing of the

underlying facts. A charge can be defeated in a number of ways: actual innocence,

lack of proof, or a trial decision. In City of Walla Walla v. Greene, we analyzed

former ROW 46.61.5055(12)(a)(v)(2005)' and held that

      the statute requires the State to establish that a prior driving
      conviction involved 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.

154 Wn.2d 722, 727-28, 116 P.3d 1008 (2005)(footnote omitted). Without this

proof, a prior charge fails to satisfy due process requirements. The majority here

abandons that holding without explaining why and establishes a troubling,

unprecedented rule validating enhanced sentences based on nothing more than an

unproven allegation. The majority's decision further violates the United States




       The statute has since been recodified as RCW 46.61.5055(14)(a)(xii).
State V. Wu, No. 96747-4
(Johnson, J., dissenting)


Supreme Court's holding in In re Winship? The Court of Appeals should be

reversed.


        We should adhere to the analysis of RCW 46.61.5055(14)(a)(xii) laid out in

Greene. Greene overruled Division One's holding in State v. Shaffer, 113 Wn.

App. 812, 55 P.3d 668 (2002), that the enhancement statute was unconstitutional.

154 Wn.2d at 727-28. But Greene did not declare that Shaffer's result was

erroneous. The defendant in Shaffer faced enhanced sentencing for vehicular

homicide because of a prior conviction for reckless driving initially charged as a

DUI(driving under the influence). The Shaffer court reasoned that the statute

violated due process because it essentially elevated a prior reckless driving

conviction to a DUI conviction without any proof ofthe underlying facts or the

DUI charge. 113 Wn. App. at 819. Greene clarified that Shaffer would be correct if

the statute indeed was based only on unproven charges. 154 Wn.2d at 727. The

majority now abandons this reasoning.

       In Greene, we held that "due process is satisfied for the purposes ofthis

mandatory enhancement if the prior conviction exists and the prosecution can

establish that intoxicating liquor or drugs were involved in that prior offense." 154

Wn.2d at 728 (footnote omitted). The statute requires proof oftwo facts:(1)the


       2 In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,25 L. Ed. 2d 368 (1970)("[T]he Due
Process Clause protects the accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime . . . .").
State V. Wu, No. 96747-4
(Johnson, J., dissenting)


existence ofthe prior conviction and (2)the involvement of alcohol or drugs. The

limiting element ofthe prior DUI charge in the statute evinces the legislature's

intent that the enhancement applies to driving offenses involving alcohol or drugs.

To accomplish this purpose, the State must prove that the prior conviction involved

alcohol or drugs as a separate fact. See State v. Mullen, 186 Wn. App. 321, 335,

345 P.3d 26(2015)(interpreting Greene).

       The State can satisfy that burden by documentation as a matter of law only

when the involvement of alcohol or drugs is an element ofthe prior crime, as it

was for the defendant in Greene. In that case, the prior conviction was first degree

negligent driving, which requires the State to prove(1)the defendant operated a

motor vehicle (2)in a negligent manner(3)that endangered or was likely to

endanger any person or property (4) while exhibiting the effects ofhaving

consumed alcohol, drugs, or any intoxicating substance. RCW 46.61.5249(l)(a)

(emphasis added); 11A Washington Practice: Washington Pattern Jury

Instructions: Criminal 96.02, at 385 (4th ed. 2016). We recognized Winship's

mandate that due process requires proof beyond a reasonable doubt of"every fact

necessary to constitute the crime." 397 U.S. at 364. Applying that rule, we held

that "the fact that [the defendant] was convicted of first degree negligent driving

[was] sufficient to satisfy [the defendant's] due process protections because all
State V. Wu, No. 96747-4
(Johnson, J., dissenting)


elements [including use of alcohol or drugs] of that offense are established by

virtue of the conviction itself." Greene, 154 Wn.2d at 728.

       Here, unlike first degree negligent driving, reckless driving does not

necessarily involve alcohol or drugs. The crime of reckless driving merely requires

the State to prove that the defendant drove a vehicle with "willful or wanton

disregard for the safety of persons or property." RCW 46.61.500(1). Only facts that

are admitted, stipulated to, or proved beyond a reasonable doubt can be recognized

through the conviction without additional proof. Blakely v. Washington, 542 U.S.

296, 303-04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)(defining the "statutory

maximum" as the maximum sentence the "judge may impose solely on the basis of

thefacts reflected in thejury verdict or admitted by the defendant. . . without any

additional findings. When a judge inflicts punishment that the jury's verdict alone

does not allow, the jury has not found all the facts 'which the law makes essential

to the punishment'"(quoting 1 JOEL PRENTISS BISHOP, CRIMINAL PROCEDURE § 87,

at 55 (2d ed. 1872))); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348,

147 L. Ed. 2d 435 (2000)("Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt."); Winship, 397

U.S. at 364; State v. Olsen, 180 Wn.2d 468, 473-74, 325 P.3d 187(2014). When
State V. Wu, No. 96747-4
(Johnson, J., dissenting)


the prior conviction is reckless driving, the additional fact of the involvement of

alcohol or drugs cannot be established by the conviction alone.

       The Court of Appeals' dissent in this case applies the correct analysis of

current case law. First, Mullen properly interpreted Greene as applied to a prior

conviction for reckless driving. Mullen held that to satisfy due process, the State

had to prove that the defendant's prior reckless driving conviction involved alcohol

or drugs as an essential element. 186 Wn. App. at 329. The difference from Greene

was that "in Mullen's case ... the State cannot prove that alcohol or drugs were

involved merely by virtue of his conviction for reckless driving." 186 Wn. App. at

334. Thus, where the prior conviction is reckless driving, additional proof is

required to confirm the involvement of alcohol or drugs.

        Second, the determination is a matter oflaw only where the record ofthe

prior conviction leaves nothing left to prove, as in State v. Allen, 5 Wn. App. 2d

32,425 P.3d 529(2018), and State v. Bird, 187 Wn. App. 942, 352 P.3d 215

(2015). Both cases assessed RCW 46.61.502(6)(b)(ii), which elevates a

misdemeanor to a felony DUI based on a prior conviction of"[vjehicular assault

while under the influence." Vehicular assault includes three alternative means,

including operating a vehicle "[w]hile under the influence of intoxicating liquor or

any drug." RCW 46.61.522(l)(b). The defendants in Bird dind Allen faced an

enhanced conviction because their prior guilty pleas to vehicular assault included
State V. Wu, No. 96747-4
(Johnson, J., dissenting)


an admission of all three alternative means, including under the influence of

alcohol or drugs. Allen, 5 Wn. App. 2d at 38; Bird, 187 Wn. App. at 946. Similar to

the first degree negligent driving conviction in Greene, the prior conviction

inherently involved alcohol or drugs. A prior DUI conviction would also

necessarily include use of alcohol or drugs. RCW 46.61.502(1); see State v.

Cochrane, 160 Wn. App. 18, 27, 235 P.3d 95 (2011). In those circumstances, the

court's determination as a matter oflaw satisfies due process because the record of

the prior conviction contains the aggravating element. See Allen, 5 Wn. App. 2d at

37-38; Bird, 187 Wn. App. at 945-46.

       The majority ignores this critical distinction. Only where the record ofthe

prior conviction contains a stipulation, admission, or finding that alcohol or drugs

were involved can the fact be determined as a matter of law. Otherwise, it must be

established to the fact finder beyond a reasonable doubt. Here, where the prior

conviction is reckless driving, even if initially charged as a DUI,the conviction

does not inherently involve alcohol or drugs. The initial DUI charge cannot prove

that fact. Yet, the majority creates fact out of allegation and undermines the due

process mandate that every element be proved beyond a reasonable doubt.

Winship, 397 U.S. at 364.

       In this case, there is no stipulation, admission, or proven fact that Wu's prior

reckless driving convictions involved alcohol or drugs. Evidence that the
State V. Wu, No. 96747-4
(Johnson, J., dissenting)


convictions were originally cited as DUIs is insufficient. An initial charge is a

mere accusation, not proof of any facts. As we established in Greene, due process

requires the State to prove as an essential element that alcohol or drugs were

involved in a prior conviction. The Court of Appeals should be reversed and Wu's

felony DUI conviction vacated. The case should be remanded for entry of a

misdemeanor DUI conviction and resentencing.




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