Bad Facts Make Bad Law: Felony DUI And Proof Beyond A Reasonable Doubt Reduced.Jonathan Rands
This week the Court Of Appeals issued a ruling that appears to lessen the prosecutions burden when it decided the issue of prior offenses for the purposes of the felony DUI statute. The ruling came from Division One of the Appeals Court, State v. Paul 2010 . Division One’s decisions are binding authority on all lower courts (Superior, District, and Municipal) that are geographically located north of Interstate 90 and east to the mountains. The only higher state court is the...
This week the Court Of Appeals issued a ruling that appears to lessen the prosecutions burden when it decided the issue of prior offenses for the purposes of the felony DUI statute. The ruling came from Division One of the Appeals Court, State v. Paul 2010. Division One’s decisions are binding authority on all lower courts (Superior, District, and Municipal) that are geographically located north of Interstate 90 and east to the mountains. The only higher state court is the Washington Supreme Court and unless it is appealed to the Supreme Court, or there is a irreconcilable conflict in this area of law between Division One and future decisions from Division’s Two and Three, this case will be the final say for some time.
The question presented for the Court was “[w]hether the court or a jury must determine if a person has four or more prior offenses that qualify as a predicate offense to elevate a misdemeanor DUI to a felony?” Since this was a new issue for the court it turned to other areas of law where prior convictions elevate a crime from a misdemeanor to a felony. Specifically the Court wrote:
“under two other nearly identical statutory schemes, our appellate courts have held that while the existence of a prior conviction is an essential 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.”
“[F]our prior DUI offenses is an essential element of the crime of felony DUI that must be proved to the jury beyond a reasonable doubt, [the question of] whether a prior offense meets the statutory definition and qualifies as a predicate offense is not an essential element of the crime. Rather, the question of whether a prior offense meets the statutory definition is to be decided by the court before admitting a prior offense into evidence at trial.”
As a result, the trial court looks at the evidence presented outside the presence of the jury and decides if there are in fact prior crimes, in this case 4 prior DUI convictions within 10 years of the current DUI charge, that act as predicates, or prerequisites to making the current charge a felony. This analyses by the Court was no real surprise as the law is logical and like issues are typically decided in a similar fashion. Since the issue of these priors was a “first impression” in this area of law, the Court sought guidance from other cases where priors are used to make a crime a felony
In this case, the court did in fact look at evidence of priors, but in doing this the Court encountered a slight twist because one of the defendant’s prior DUI conviction was in California, so the Court was also required to determine whether the California conviction was a “similar conviction” and therefore qualify it as a legal predicate.
The trial court and Appellant court engaged in a legal analysis comparing the elements of the crime of driving while under the influence under California Vehicle Code § 23152(a) and the Washington crime of driving under the influence in violation of former RCW 46.61.502(1). Upon seeing how similar the two states were, the California DUI conviction under California Vehicle Code § 23152(a) would have been a violation in Washington under RCW 46.61.502.
The next step of the analyses was to determine whether there were in fact four priors and while this is an expected and rational step, it is the evidence that was used to PROVE the priors is where concern lies.
Since the burden of proof rests upon the prosecution it is up to the prosecutors to prove the priors and in this case they presented evidence in the form of certified copies of court records showing a conviction for two Seattle Municipal Court convictions and the docket for the DUI conviction in Everett District Court. With respect to the 1998 California DUI conviction, the court admitted a certified copy of the complaint charging Defendant with violation of §23152(a) of the California Vehicle Code. The complaint alleges that Chambers “while under the influence of an alcoholic beverage, drove a vehicle.” The court also admitted certified copies of the California docket, the order granting a conditional sentence, and a “DUI Waiver of Rights and Plea Form.
All of these documents were admitted with NO OBJECTION from the defense attorney. A close reading of the case makes one wonder if defense counsel had some strategy in mind despite since there was no objection, but subsequent to the conviction the Defense counsel appeals and makes a new argument contrary to the trial argument and in violation of trial practice 101 as pointed out by the Court of Appeals: “it is undisputed that Chambers did not object to admission of the evidence establishing her three prior DUI convictions in Washington, she waived any claim of error as to those convictions.”
Since there was no objection the evidence relied by the trial court in the form of computer entries and unchallenged driving records the standard of proof has been substantially lowered because there was no challenge to the person or persons who made the entries, no challenge to the accuracy of the “record,” no challenge to whether the driving record was actually that of the defendant, and as a result of no objection future cases under Division One jurisdiction will unlikely be able to make these challenges with success because this case will be looked to as having the final say for some time.
This is where the burden of proof appears to have been watered down and now threatens the actual standard of proof of priors “beyond a reasonable doubt.” Trial counsel’s failure to object was a significant error, but in my opinion the bigger error was appealing this case given the facts and the record created by trial counsel. There is a saying every law student learns in law school: “Bad facts make bad law.”
Future Felony DUI defendant’s in Whatcom, Skagit, Island, San Juan, Snohomish, and King County are now bound to this ruling. The proof offered by the Prosecution in support of the priors is now going to be production of a paper trail. Rather than proof beyond a reasonable doubt, the prosecution can now simply produce a screen capture of computer docket entries and maybe a driving record that is also computer generated. Therefore the right of confrontation is also lessened along with the burden the prosecution bears, or as it may be now, no longer bears. A constitutional right with hundreds of years of historical protection appears to have been eliminated.