State v. Craig

793 P.2d 215, 117 Idaho 983, 1990 Ida. LEXIS 85

• Court: Idaho Supreme Court
• Decided: June 12, 1990
• Docket: 18124
• Status: Published

Opinions

BAKES, Chief Justice.

The State appeals from the dismissal of a felony criminal charge for driving under the influence of alcohol (DUI). Defendant respondent Craig had been convicted for two prior DUI’s. Prior to entry of the second conviction, Craig was arrested for this third DUI offense. After the second conviction was entered, the State filed an amended complaint in this case to charge Craig with felony DUI. The defendant Craig waived a preliminary hearing and a felony information was filed. Craig then moved to dismiss the felony information, which the court granted. The district court dismissed the felony prosecution on the grounds that the second conviction must occur prior to the third violation.¹ The State appeals. We reverse.

On January 23, 1985, Craig pleaded guilty to and was convicted of driving under the influence for a violation occurring on August 23, 1984. On October 12, 1988, Craig pleaded guilty to and was convicted for the second DUI that occurred on August 26, 1988. After the second citation, but prior to the second (October 12th) conviction, Craig was cited for a third DUI offense on September 26, 1988. Craig pleaded not guilty to the third offense and demanded a jury trial.

On November 16, 1988, the State filed an amended complaint on the third offense, charging Craig with felony DUI. Subsequently a felony information was filed. Craig filed a motion to dismiss, arguing that the information violated his due process rights. On May 2, 1989, the district court, in a memorandum decision granted Craig’s motion to dismiss the information on the ground that the second conviction must be entered prior to the commission of the third DUI in order for the third charge to constitute a felony. The State appeals this order.

The foregoing facts present the following limited issue on appeal: must a second DUI conviction precede a third DUI violation in order for the defendant to be subject to a felony conviction under I.C. § 18-8005(3)? Our task is purely one of statutory interpretation. We have not considered this precise issue on any previous occasion.

At the time of this action, I.C. § 18-8005(3) read in pertinent part:

(3) Any person who pleads guilty to or is found guilty of three (3) or more violations of the provisions of section 18-8004, Idaho Code, within five (5) years, notwithstanding the form of the judgments) or withheld judgment(s), shall be guilty of a felony____

The State argues that this provision does not require two convictions prior to the arrest for the DUI offense which gives rise to the felony charge. The State argues further that I.C. § 18-8005(3) requires no specific sequence, but only requires that a defendant be found guilty of three or more DUI offenses within five years before the enhanced penalty can be imposed. Craig responds that subsections (3) and (4) of I.C. § 18-8005 must be construed together, and that subsection (4) requires that two DUI convictions must occur both subsequent to 1983 and must precede the third DUI arrest in order for a defendant to be subject to a felony charge. Subsection (4) of I.C. § 18-8005, upon which Craig relies, stated that:

(4) For the purposes of paragraphs (2) and (3) of this section, convictions of violation of the provisions of section 49-1102, Idaho Code, shall be considered by the court to determine if a later conviction is a second or subsequent conviction only if such convictions were of violations committed on or after July 1, 1983.

Craig’s argument is that subsection (4) modifies subsection (3) and that the use of the term “conviction” in subsection (4) mandates the result he argues for. The district court upheld Craig’s argument. However, we disagree.

I.C. § 18-8005(3) clearly states that if a defendant is convicted (pleads guilty or is found guilty) of three DUI violations within five years, he has committed a felony. Counsel for Craig, in support of the district court’s dismissal, argues, nevertheless, that subsection (4) has modified subsection (3) to the effect that the two prior violations must be reduced to judgment before the third violation occurs in order for the felony enhancement provisions to apply. Craig bases that argument on the fact that subsection (3) uses the term “violation” rather than the term “conviction.” Craig suggests that each subsection of the statute must be construed together to ascertain the legislative intent. Messenger v. Burns, 86 Idaho 26, 382 P.2d 913 (1963); In re Gem State Academy Bakery, 70 Idaho 531, 224 P.2d 529 (1950).

However, subsection (4) only states that for purposes of determining whether a person has been convicted of three DUI violations within five years, those convictions were for violations committed on or after July 1,1983. Beyond this, subsection (4) in no way modifies subsection (3).

We conclude that as long as a defendant “is found guilty of three (3) or more violations of the provisions of section 18-8004, Idaho Code, ... within five (5) years," he has committed a felony, regardless of whether the third violation preceded the second conviction.

The order of the district court dismissing the information and the amended information against Craig is therefore reversed and remanded with directions to reinstate the amended information.

JOHNSON, BOYLE and McDEVITT, JJ., concur.

1 . Subsequent to the order of dismissal of the felony information, the State filed an amended information in an attempt to satisfy the district court’s concern that the defendant had received the appropriate notices required by I.C. § 18-8005. The district court also dismissed the amended information based upon the same grounds on which he dismissed the original information.