This unpublished opinion from Division Two of the Court of Appeals considers what “prior offense” means when a convicted person stands before a sentencing court on a Felony DUI charge. The court here balanced two statutes that seem to be inconsistent and decided the case to expand the definition of “prior offense.”
Under the specific DUI sentencing statute, which includes felony DUIs, RCW 46.61.5055(14)(c) defines prior offense as, “the arrest for a prior offense occurred within ten years of the arrest for the current offense.” West was arrested for his current offense on November 18, 2009, his two 1996 DUI convictions and his one 1998 DUI conviction did not occur “within ten years,” he argued, and so should not have been counted in his offender score.
But Sentencing Reform Act or RCW 9.94A.525(2)(e) provides that prior DUI convictions shall be included in the offender score if they occurred within ten years or if they were committed within five years of entry of a prior judgment and sentence. West never went five years without committing another DUI. Therefore, the trial court properly included all eight prior DUI convictions in West’s offender score, under RCW 9.94A.525(2)(e)(i), even though he committed some of those prior DUI’s more than ten years before his current DUI. In short, the SRA mandates a “wash” period. Here’s the statute:
(e) If the present conviction is felony driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502(6)) or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug (RCW 46.61.504(6)), prior convictions of felony driving while under the influence of intoxicating liquor or any drug, felony physical control of a vehicle while under the influence of intoxicating liquor or any drug, and serious traffic offenses shall be included in the offender score if: (i) The prior convictions were committed within five years since the last date of release from confinement (including full-time residential treatment) or entry of judgment and sentence; or (ii) the prior convictions would be considered “prior offenses within ten years” as defined in RCW 46.61.5055.
West Rule: The SRA expands the ten year rule if five year from entry of prior judgement and sentence have not occurred.
State v. William A. West, Court of Appeals of Washington Division II. UNPUBLISHED OPINION No. 40314-5-II. (January 4, 2011)