IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,                           No. 76672-4-I

                          Respondent,          (Consolidated with
                                               No. 78070-1-I)
                    v.
                                               DIVISION ONE
NICHOLAS WINDSOR ANDERSON,
                                               UNPUBLISHED OPINION
                            Appellant.



       LEACH, J. - The Washington Supreme Court granted the State’s petition for

review in this case and remanded it to this court 1 to reconsider our previous

opinion 2 in light of the court’s opinion in State v. Wu. 3 We reconsider our opinion

and now hold that the State must prove to a jury that Anderson’s prior reckless

driving conviction was originally charged as driving under the influence but does

not have to prove that drugs or alcohol were involved in that case. We remand

for further proceedings consistent with this opinion.

                                      HISTORY

       Anderson appealed his convictions for four counts of vehicular homicide,

one count of vehicular assault, and one count of reckless driving. Pertinent to


       1 State v. Anderson, 195 Wn.2d 1001, 458 P.3d 786 (2020).
       2 State v. Anderson, 9 Wn.App.2d 430, 447 P.3d 176 (2019).
       3 State v. Wu, 194 Wn.2d 880, 453 P.3d 975 (2019).




  Citations and pincites are based on the Westlaw online version of the cited material.
No. 76672-4-I/2


this opinion, he challenged two 24-month sentence enhancements the trial court

imposed to run consecutively to each of the vehicular homicide convictions and

to each other, 192 months total, because Anderson had two prior convictions for

driving under the influence (DUI) and reckless driving. This challenge raised two

issues.

       First, Anderson challenged the trial court judge’s decision that his 2005

reckless driving conviction was a “prior offense” under RCW 46.61.5055. He

contended that whether his reckless driving conviction qualified as a “prior

offense” presented a question of fact that a jury must resolve, while the State

asserted that it was a threshold question of law for the judge. We agreed with

Anderson. 4

       Second, he contended the State had to prove to a jury that his reckless

driving conviction involved use of intoxicating liquor or drugs to establish it as a

prior offense. In a split decision, a majority of this court agreed with Anderson. 5

       The State petitioned the Supreme Court for discretionary review on these

two issues. The Supreme Court accepted review and remanded the case to this

court to reconsider our previous opinion in light of the court’s opinion in State v.

Wu.

                                     ANALYSIS

          In State v. Wu, our Supreme Court clarified the required elements for

felony DUI, and whether a judge or a jury must determine whether the State has

proved the required elements. Pertinent here, the court considered who decides


       4   9 Wn.App.2d at 446-47.
       5   9 Wn.App.2d at 462-63.
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No. 76672-4-I/3


whether an earlier reckless driving conviction qualifies as a prior offense that

elevates a DUI from a gross misdemeanor to a felony, and whether the State had

to prove that conviction involved use of intoxicating liquor or drugs.

       To qualify as a prior offense, a reckless driving conviction must result from

a charge originally filed as a DUI offense. 6 The court held in Wu that a jury must

decide whether an earlier reckless driving conviction satisfies this requirement. 7

We reached the same conclusion in our earlier opinion. So, we do not need to

reconsider our earlier resolution of this issue.

       The court in Wu considered and rejected the claim that the State must

prove to the jury that the earlier reckless driving conviction involved alcohol or

drugs to qualify as a prior offense. It held that the State need prove only a

reckless driving conviction that resulted from a charge filed as a DUI offense.

Because a majority of our court reached the opposite conclusion in our earlier

opinion, we reconsider and reverse that part of our decision. On remand, the

State must prove beyond a reasonable doubt only that Anderson was convicted

of reckless driving on a charge originally filed as a DUI offense.

       In our earlier opinion, we also held the trial court should not have imposed

a DNA fee. Nothing in Wu requires us to reconsider that part of our decision.

                                   CONCLUSION

       Whether Anderson’s prior reckless driving conviction qualifies as a “prior

offense” for purposes of enhancing his term of imprisonment for vehicular

homicide involves a question of fact that a jury must decide. We remand for the


       6   RCW 46.61.5055.
       7   194 Wn.2d at 889.
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superior court to empanel a jury to decide this question and for the court to strike

the DNA fee.




WE CONCUR:




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