Last week, Division One of the Washington Court of Appeals affirmed the dismissal of a Felony DUI charge against a man who had been stopped for DUI at least 15 times previously. If we can get beyond the sensationalistic aspect of the ruling based on the history of the defendant, we find a very well reasoned decision that, in conjunction with another recent case, appears to be instructive as to how our appellate courts have begun to define "prior offenses". At least as they relate to the defense and prosecution of drunk driving cases.
In December of 2007, Robert Castle was stopped and arrested for DUI. At the time of his arrest he had, within ten years, one previous conviction for DUI and three pending charges. Instead of immediately filing the new DUI charge, the State delayed the filing until the three pending charges resulted in convictions. It then charged Castle under the then relatively new Felony DUI statute for committing the offense of DUI while having four "prior offenses" within ten years of the new offense. On motion of the defense, the trial court dismissed the felony charge. After an appeal by the King County Prosecutor’s Office, the Court of Appeals affirmed.
Citing the clear and unambiguous language of the Washington DUI Statute, the court held that in order to be charged with Felony DUI under the "four prior offenses" prong, all offenses must have occurred prior to the arrest. The statute further defines "offenses" as being "convictions" or deferred prosecutions. Accordingly, since at the time of his DUI arrest in 2007 Castle had only one DUI conviction and three pending matters, he was three "convictions" shy of violating the Felony DUI statute.
This is at least the second time that an appellate court has taken on the issue of what constitutes a prior offense under Washington law. In City of Seattle v. Winebrenner/Quezada, the Washington State Supreme Court ruled that a for an offense to be considered a "prior offense", it must have occurred, temporally before the offense in question. In these cases, both defendants had been found in violation of their deferred prosecutions by committing a subsequent offense. The City of Seattle, trying to take advantage of confusing statutory language on what constitutes a "prior" for purposes of sentencing, argued that the subsequent offenses, since they resulted in convictions, should be treated as priors for purposes of sentencing on the revoked deferred prosecutions. Though Division One of the Court of Appeals agreed with the city, the Washington Supreme Court did not, ultimately overturning the lower court. In its decision the Court agreed that the statute was poorly drafted but ruled that the "rule of lenity" requires and ambiguous statute to be construed in favor of the defendant. As a result, "subsequent offenses" can not be treated as "prior offenses", cats aren’t dogs, black isn’t white, the Seahawks still didn’t win the 2007 Super Bowl and so on and so forth.
I doubt that the State of Washington is satisfied with the Division I ruling in Castle and suspect that it will seek review from the state Supreme Court. If so, is Quezada instructive of how the Court might rule? The state appears to now have a a very difficult argument on it’s hands. In order to prevail it will most certainly have to show that the statutory construction as interpreted by the lower court is not as straight forward as the decision indicates. But if successful, will that amount to a pyrrhic victory? If it follows its rational in Quezada, the court would rule that the rule of lenity requires that the ambiguous statute be resolved in favor of the defendant. Accordingly, the court will either (a) uphold the lower court ruling on the grounds that the Felony DUI statue is unambiguous and a prior offense means a "conviction" prior to the arrest date for the current crime charged or (b) that the "prior offense" definition is confusing and ambiguous and then uphold the decision on the grounds of the Quezada rationale.