 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        ]
                                                                                  en
                                                   No. 71615-8-1
                                                                                  cz
                     Appellant,             ]
                                                                                   1
                                                   DIVISION ONE
              v.                            t
                                                    PUBLISHED OPINION                   -7; ^ i'
TRAVIS JOSHUA BIRD,                         ]
                                                                                   cp
                     Respondent.            i       FILED: June 1,2015


      Trickey, J. — A charge of driving while under the influence (DUI) may be

elevated to a felony when a defendant has previously been convicted of vehicular

assault while under the influence of alcohol or drugs. Here, the defendant had

previously entered an Alford1 plea to vehicular assault under all three alternative
means, including driving while under the influence. Moreover, it is clear from the
underlying facts in that case that the defendant was under the influence of
alcohol and drugs when his passengerwas injured. Accordingly, we reverse the
trial court and remand for further proceedings.

                                        FACTS

       In January 2013, Bird was stopped by law enforcement officers for erratic
driving. The officers noticed that Travis Bird had slurred speech and red eyes.
Bird admitted to drinking.        Bird performed poorly on field sobriety tests.

Additionally, a portable breath test showed a sample of .138. The officers noted
that Bird had a prior vehicular assault conviction. Bird told the officers that he




1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L Ed. 2d 162 (1970).
No. 71615-8-1/2


was aware of the conviction and, further, that he was aware that this current

offense would be a felony. Bird was arrested and charged with a felony DUI.

      The charge was elevated to a felony because of Bird's previous conviction

of vehicular assault in 2009. At that time, Bird entered an Alford plea to vehicular

assault as charged in the original information. The plea stated that the court

could "review the police reports and/or a statement of probable cause supplied

by the prosecution to establish a factual basis for the plea."2 The court entered
findings accepting the plea and noting that sufficient probable cause existed to

find Bird guilty of "Vehicular Assault."3 The court then entered a felony judgment

and sentence finding Bird guilty on a plea of "Vehicular Assault - All

Alternatives."4 The notation "(DUI)" is handwritten over "All Alternatives."5
       Bird moved to dismiss the felony charge for lack of proof of the predicate

offense.      The trial court agreed and dismissed the felony charge without

prejudice. The State appeals.

                                    ANALYSIS

       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 when a person has been previously convicted
of vehicular assault while under the influence of intoxicating liquor or any drug, as

defined by RCW 46.61.502(1), and causes substantial bodily harm to another
person.




2 Clerk's Papers (CP) at 29.
3 CP at 32.
4 CP at 33.
5 CP at 33.
No. 71615-8-1/3


      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. Chambers, 157 Wn. App. 465, 479, 237 P.3d 352 (2010), review

denied, 170Wn.2d 1031. 249 P.3d 623 (2011): State v. Cochrane, 160 Wn. App.

18, 20, 253 P.3d 95 (2011). We disagree with Division Two's recent opinion,

State v.Mullen,     Wn. App. _, 345 P.3d 26 (2015), holding otherwise.

       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. "As such, the

trial court must determine [the] 'applicability' of a prior offense." Chambers, 157

Wn. App. at 479. We review questions of law de novo. State v. Mullin-Coston,

152 Wn.2d 107, 114, 95 P.3d 321 (2004).

       Only prior offenses that meet the statutory definition are admissible as
predicate offenses elevating a DUI to a felony. Chambers, 157 Wn. App. at 479.
Once determined that it is admissible, the State can introduce the crime into

evidence at the present trial.

       Below, Bird successfully argued that the record was unclear as to which

alternative Bird was convicted of and, further, that without proof that he was

convicted of the DUI means of vehicular assault, the felony charge on the new

DUI must be dismissed.           But the evidence here is more than sufficient to

establish that Bird was under the influence in his conviction for vehicular assault.
No. 71615-8-1/4


       Under CrR 4.2(d), a trial court must be satisfied that there is a factual

basis for a defendant's guilty plea. This is a procedural requirement that is not

constitutionally mandated. State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228

(1996). The trial court is not limited to the defendant's statement, but may look to

any reliable source to determine that there is a factual basis for a guilty plea.

Here, there was such a factual basis in addition to Bird's own statement.

       First, Bird pleaded guilty to all alternatives.   The 2009 judgment and

sentence found Bird guilty of vehicular assault (all alternatives) as charged in the

original information. That judgment and sentence included the DUI prong and
the fact that there were two other prongs in addition should not alter his plea as

to the DUI prong.

       Second, the statement of defendant on plea of guilty to non-sex offense

(felony) states:

       4. I Have Been Informed and Fully Understand That:


          (b) I am charged with: Vehicular Assault,
              The elements are: On July 4, 2008 in Skagit County, WA did
              drive a motor vehicle while under the influence of alcohol
              and did cause substantial bodily harm to another person to
              wit Whitney SchulzJ6]

The findings of fact and conclusions of law incorporated by reference Bird's
statement on his guilty plea.

       Additionally, in paragraph 11 of the plea, Bird stated that he agreed the
court could review the police reports and/or a statement of probable cause
supplied by the prosecution to establish a factual basis for the plea. Witnesses'

6 CP at 22.
No. 71615-8-1/5


observations were included in those reports. One of the witnesses noticed an

odor of alcohol amongst the occupants as well as an odor of marijuana coming

from Bird and another passenger.      A passenger in the vehicle informed the

responding trooper that Bird had been drinking alcohol earlier jn the evening. At

the hospital, Bird appeared dazed and confused and did not respond to the

trooper's questions. The trooper observed that Bird's eyes were pink, his speech

was slurred and repetitive, and an odor of alcohol emanated from him. Another

witness stated that Bird had consumed beer and smoked marijuana earlier in the

evening. The report concluded that Bird was driving in excess of the posted
speed limit while under the influence of alcohol and marijuana.

      Thus, there is sufficient information upon which a trial court could

determine that the guilty plea referred to the DUI prong and, therefore, relevant
and admissible at the trial. Bird's description of the crime is consistent with a

plea to all three prongs of the vehicular assault crime. He was speeding, driving
recklessly while under the influence of alcohol and marijuana.
       We hold that Bird's previous conviction serves as a predicate offense

enabling the State to charge him with a felony DUI. Accordingly, we reverse the
trial court's order of dismissal and remand for further proceedings.



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WE CONCUR:




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