First DUI Deferred Prosecution Washington Courts Courts Home | Opinions Search | Site Map | eService Center Court of Appeals Division II State of Washington Opinion Information SheetDocket Number: 31206-9-IITitle of Case: City of Bremerton, Respondent v. Ledell Tucker, PetitionerFile Date: 01/11/2005 SOURCE OF APPEAL ----------------Appeal from Superior Court of Kitsap CountyDocket No: 03-1-00374-1Judgment or order under reviewDate filed: 07/25/2003Judge signing: Hon. M Karlynn Haberly JUDGES ------Authored by J. Robin HuntConcurring: David H. Armstrong J Dean Morgan COUNSEL OF RECORD -----------------Counsel for Petitioner(s) Eric Michael Fong Rovang Fong & Associates 569 Division St Ste a Port Orchard, WA 98366-4600Counsel for Respondent(s) Kenneth W Bagwell Wolfe Law Offices 216 6th St Bremerton, WA 98337-1816DIVISION IICITY OF BREMERTON, No. 31206-9-II Respondent, v.LEDELL TUCKER, ORDER CORRECTING PUBLISHED OPINION Appellant. Upon further review, we correct the published opinion in this case,filed January 11, 2005, ( Wn. App. , 103 P.3d 1285 (2005)), bydeleting '24-month,' in the first sentence, first line, on page one. Thecorrected first sentence now reads:Ledell Tucker appeals his mandatory, statutory minimum sentence enhancementfor driving-under-the-influence (DUI), based on a prior deferred DUIprosecution. Accordingly, it is SO ORDERED. DATED this day of ,2005. Hunt, J.We concur:Morgan, A.C.J. Armstrong, J.IN THE COURT OF APPEALS OF THE STATE OF WASHINGTONDIVISION IICITY OF BREMERTON, No. 31206-9-II Respondent, v.LEDELL TUCKER, PUBLISHED OPINION Appellant. HUNT, J. Ledell Tucker appeals his mandatory, 24-month, statutoryminimum sentence enhancement for driving-under-the-influence (DUI), basedon a prior deferred DUI prosecution. He argues that the sentenceenhancement violates due process because it relieves the State of itsburden to prove all criminal conduct beyond a reasonable doubt. Holdingthat the DUI sentence-enhancement statute does not violate due process, weaffirm.FACTSI. First DUI Deferred Prosecution In 1996, Ledell Tucker requested and received a deferred prosecutionfor DUI in Kitsap County District Court. As a condition of his deferredprosecution, he stipulated to facts in the police report and admitted hehad been driving while under the influence of alcohol as follows: 'I hadconsumed intoxicants on this occasion and at the time of driving myvehicle, my ability to drive was impaired and I was under the influence ofthe intoxicant.' Clerk's Papers (CP) at 24. He also stipulated toadmission of police reports and statements showing that he had failed afield sobriety test, registered a .211 on a Portable Breath Test, andexhibited explicit signs of intoxication. In 1999, after finding that Tucker had successfully completed thedeferred prosecution conditions, the district court dismissed his DUIcharge, entering no conviction on his record.II. Second DUI Plea and Sentence Enhancement On November 8, 2002, the City of Bremerton charged Tucker with anotherDUI, accompanied by a special enhanced sentence allegation based on hisrefusal to take a breathalyzer test. Tucker pled guilty as charged. Themunicipal court imposed the mandatory minimum sentence for a DUI offenderwith one 'prior offense,'1 based on Tucker's previous deferred DUIprosecution, under RCW 46.61.5055.2 Tucker appealed to Kitsap CountySuperior Court, which affirmed. Tucker next sought discretionary review by the Washington SupremeCourt. The Supreme Court granted review and transferred the case to us toreview whether RCW 46.61.5055 violates due process by increasing themandatory minimum DUI sentence based on a successfully completed, priordeferred prosecution, thereby relieving the State of its burden to proveall criminal conduct beyond a reasonable doubt. We find no due processviolation inherent in this sentencing procedure.ANALYSIS Tucker argues that former RCW 46.61.5055(11)(a)(vii) (2002), whichcounts deferred DUI prosecutions as prior offenses, violates due process byimposing a mandatory sentence enhancement based on an unproven charge,namely his 1996 dismissed, deferred DUI prosecution in Kitsap CountyDistrict Court. We disagree.I. Standard of Review Whether a statute is constitutional is a question of law, which wereview de novo. State v. Schultz, 138 Wn.2d 638, 643, 980 P.2d 1265(1999). We presume a statute to be constitutional. Thus, Tucker has theburden of proving the statute unconstitutional beyond a reasonable doubt.State v. Ward, 123 Wn.2d 488, 496, 869 P.2d 1062 (1994). He fails to meetthis burden here.II. Due Process 'Due process requires fair notice of proscribed criminal conduct andstandards to prevent arbitrary enforcement.' City of Richland v. Michel,89 Wn. App. 764, 770, 950 P.2d 10 (1998). We hold that (1) the deferredprosecution statute, Chapter 10.05 RCW, and the DUI sentence enhancementstatute, former RCW 46.61.5055 (11)(a)(vii) (2002), provide fair notice ofboth the proscribed conduct and the corresponding penalties; (2) there isno evidence of arbitrary enforcement here; and (3) former RCW 46.61.5055(11)(a)(vii) is constitutional.A. The Legislature's Mandate Our Legislature has mandated that if a person convicted of DUI has hada 'prior offense' within the previous seven years, the trial court mustimpose a higher minimum sentence for a new DUI conviction than it wouldimpose for a person with no prior DUI offenses. For a first DUIconviction, RCW 46.61.5055(1)(b) mandates a minimum $500 fine and two daysin jail, or 30 days of electronic home monitoring.3 For a second DUI offense, however, RCW 46.61.5055(2)(b) mandates aminimum $750 fine and 45 days in jail, plus 90 days of electronic homemonitoring. By statute, a 'prior offense' includes '{a} deferredprosecution under chapter 10.05 RCW granted in a prosecution for aviolation of RCW 46.61.502, 46.61.504, or an equivalent local ordinance.'Former RCW 46.61.5055(11)(a)(vii). This statutory definition of a 'prioroffense' includes Tucker's 1996 deferred DUI prosecution.B. Deferred DUI Prosecution Tucker argues that former RCW 46.61.5055(11)(a)(vii) improperly allowsthe State to use an unproven charge for which he was never convicted,namely a prior DUI charge dismissed following a deferred prosecution, asthe predicate for an enhanced sentence for a subsequent DUI. He reliesheavily on State v. Shaffer, 113 Wn. App. 812, 55 P.3d 668 (2002), in whichDivision One of our court held a different section of the statute, formerRCW 46.61.5055(11)(a)(v) (2002), unconstitutional. In so holding, theShaffer court reasoned that former RCW 46.61.5055(11)(a)(v) mandated asentence enhancement for a vehicular homicide conviction based on a priorDUI charge that had been reduced to reckless driving and, therefore, lackedDUI proof.4 Shaffer, 113 Wn. App. at 822. The statute and facts at issuehere, however, differ significantly. Thus, Shaffer does not apply. First, Shaffer did not involve a prior deferred DUI prosecution underChapter 10.05 RCW, the statute at issue here. Second, the constitutionalflaw highlighted in Shaffer was not merely the lack of a prior DUIconviction supported by the State's proof, but also the lack of anadmission by Shaffer that he had committed a prior DUI.5 In contrast,Tucker's prior DUI charge was not reduced to reckless driving, and headmitted having committed DUI. When Tucker accepted the State's offer of adeferred DUI prosecution, he admitted on the record under oath that he haddriven under the influence of alcohol.6 His admission to having committedthe charged DUI was a prerequisite to the State's granting him a deferredprosecution.7 Tucker misconstrues the Legislature's purpose in providing theopportunity for deferred DUI prosecution:Deferred prosecution is designed to encourage treatment of culpable peoplewhose conduct is caused by a treatable condition, like alcoholism. Suchpeople are given an opportunity to avoid conviction if they successfullycomplete treatment. Deferred prosecution is not equivalent to a guiltyplea or a conviction. It is a form of preconviction sentencing orprobation under which an accused must allege under oath that the culpableconduct charged is the result of alcoholism, drug addiction or mentalproblems. The accused must execute a statement that acknowledges his orher rights, stipulates to the admissibility and sufficiency of the facts inthe police report, and acknowledges that the statement will be entered andused to support a finding of guilt if the deferred prosecution is revoked.City of Kent v. Jenkins, 99 Wn. App. 287, 289-90, 992 P.2d 1045, reviewdenied, 141 Wn.2d 1007 (2000) (emphasis added) (citations omitted); seealso, RCW 10.05.020. Conversely, if the accused refuses to admit guilt orprofesses innocence, 'the court will not accept a petition for deferredprosecution.' RCW 10.05.020(3). Third, as part of the deferred prosecution process, Tucker receivedfair notice 'that an enhanced sentence was a consequence of his {deferredprosecution} agreement' if he committed another DUI.8 Michel, 89 Wn. Appat 770. Tucker knew the deferred prosecution offered him an opportunityfor alcohol treatment, in hopes of preventing further DUI violations, andfor a DUI-conviction-free record. Tucker also knew, however that in spiteof his treatment, if, he drove again while under the influence, his penaltyfor the new DUI would be more severe than it would have been had the newDUI been his first offense. We hold that Tucker has failed to show lack of notice or any dueprocess violation when the trial court used his prior deferred DUIprosecution to enhance his sentence under former RCW46.61.5055(11)(a)(vii).C. Constitutionality of Statute Division III of our court addressed a similar constitutional challengeto the same statutory subsection in Michel. 89 Wn. App at 769-70. Michelargued that former RCW 46.61.5055(8)(a)(vii) (1996): (1) denied him dueprocess9 in failing to warn that a deferred DUI prosecution could be usedfor sentencing enhancement at a later time, and (2) violated equalprotection10 by treating a DUI charge dismissed after successful completionof deferred prosecution the same as a DUI conviction. Michel, 89 Wn. App.at 769-70. The court held that the Legislature's inclusion of a deferredprosecution as a 'prior offense' did not violate due process or equalprotection. Michel, 89 Wn. App. at 770, 772. Two years later, Division I of our court addressed a related statutoryinterpretation argument that a charge dismissed following a deferredprosecution is not a 'prior offense.' Jenkins, 99 Wn. App. at 289. Thecourt held that the Legislature meant exactly what it said: It intendedthat a successfully completed, deferred prosecution should count as a prioroffense for sentencing purposes in a subsequent DUI offense. Jenkins, 99Wn. App. at 290-91. Rejecting Tucker's analogy to Shaffer, we adopt Jenkins and Michel.We hold, therefore, that former RCW 46.661.5055(11)(a)(vii) does notviolate due process by increasing the penalty for a second DUI where adefendant has previously admitted to having committed a prior DUI under adeferred prosecution (even though that prior DUI charge was dismissedfollowing successful completion of the deferred prosecution conditions).The Legislature's intent in providing deferred prosecution was to encouragepeople with severe alcohol addictions to seek treatment in the hope thatthey would never drive under the influence again. Where, however, suchtreatment has not curtailed a defendant's drinking and driving, theLegislature has expressed in this statute its intent to protect the publicfrom the grave danger of repeated drunken driving. Accordingly, we affirm Tucker's enhanced DUI sentence. Hunt, J.We concur:Morgan, A.C.J. Armstrong, J.1 As defined in former RCW 46.61.5055(11)(a)(vii) (2002).2 The municipal court sentenced Tucker to 45 days in jail, 90 days homedetention, and five years probation, and it imposed $1,405 in fines.3 RCW 46.61.5055(1)(b)(i) provides: 'In lieu of the mandatory minimum termof imprisonment required under this subsection (1)(b)(i), the court mayorder not less than thirty days of electronic home monitoring.'4 For vehicular homicide sentence enhancement purposes, former RCW46.61.5055(11)(a)(v) allowed the State to elevate a prior reckless drivingconviction to a DUI conviction if the reckless driving had originally beencharged as a DUI. The Shaffer court held that the statute's failure torequire any proof of the prior DUI charge allowed a conviction withoutproof beyond a reasonable doubt by the State. Shaffer, 113 Wn. App. at 818-19. But such is not the case here.5 Shaffer had been convicted of only the lesser charge of reckless driving.Shaffer, 113 Wn. App. at 817.6 The trial court expressly found that Tucker's statements were knowing andvoluntary.7 Conversely, he would not have qualified for deferred prosecution if hehad maintained that he was not guilty of the charged DUI. See RCW10.05.020(3), discussed infra.8 We recognize that in Michel, former RCW 10.05.120 (1992) specificallyprovided that a sentencing court can consider prior deferred prosecutionsfor enhancement purposes. Michel, 89 Wn. App at 769. Though the amendedversion of RCW 10.05 in effect at the time of Tucker's deferred prosecutiondid not specifically warn of the possibility of an enhanced sentence,former RCW 46.61.5055(11)(a)(vii) (2002) specifically contemplated such aresult. Furthermore, in holding that Michel received fair notice that anenhanced sentence was a consequence of deferred prosecution, the courtreasoned, 'Unlike the case with guilty pleas, the deferred prosecutionstatute does not require written notice of all consequences of theagreement.' Michel, 89 Wn. App. at 770. We agree, adopt the holding inMichel, and apply it to the slightly varied facts of Tucker's case.9 U.S. Const. amend. V; Wash. Const. art. I, sec. 3.10 U.S. Const. amend. XIV, sec. 1; Wash. Const. art. I, sec. 12. Courts | Organizations | News | Opinions | Rules | Forms | Directory | Library Back to Top | Privacy and Disclaimer Notices
|
DUI / DWI, Drinking 
