Many DUI defense attorneys have stood in Superior Court and puzzled after receiving the court’s sentence. The hammer was dropped for a felony charge and then extensive jurisdiction to improve the person was ordered on the gross misdemeanor DUI. Typically, felonies bring punishment and misdemeanors bring rehabilitation. But both at the same time? Most often to justify extensive punishment the court rationalizes that rehabilitation has failed as the defendant is not amenable. Choosing both roads, punishment and rehabilitation appears contradictory to the legislature, who has declared a policy of concurrent jurisdiction for sentences. This practice seems nonconforming and possibly an equal protection violation.
In 1868 the United States adopted the 14th Amendment, which has been interpreted to say that two people facing the same law shouldn’t be treated differently.
The U.S. Constitution
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In short, the Oslakovic Court said “no” because the analysis of appellate level cases is that there is a strong presumption that the statutes are constitutional unless overcome by the defendant.
Mr. Oslakovic pled guilty to driving while under the influence of intoxicants (DUI), a gross misdemeanor, and failure to remain at the scene of an accident with serious injuries, a felony. The court sentenced him to consecutive standard range sentences. The dichotomy here is that courts have broad discretion to impose consecutive sentences for misdemeanor convictions, while sentences for felony convictions are presumptively concurrent.
Division II of the Court of Appeals decided that the differences between misdemeanor sentencing and felony sentencing do not violate equal protection rights and affirmed Oslakovic’s sentences.
Rule of Oslakovic – Felonies and DUIs can have consecutive sentences.
State v. Charles P. Oslakovic, Court of Appeals of the State of Washington, Division II, UNPUBLISHED OPINION, No. 40174-6-II, January 4, 2011.