Once, Twice, Three Times a DUI?

State v. Wainwright, 2013 VT 120

By Andrew Delaney

So this case is about a year old. Actually, as I write this, it’s a week past its first birthday. Sometimes “we” take a little while to get around to doing things. Just ask my wife about the “temporary” carpeting that resided in our entryway for nearly six years.

But this isn’t a case about carpeting; it’s a case about DUI and prior convictions and whether the same prior conviction can be used to criminalize a refusal to submit to an evidentiary test and to enhance the penalty for the refusal. The SCOV says it can.

Here’s the setup. One statute generally provides that if one has previously been convicted of DUI, it’s a crime to refuse a law-enforcement officer’s reasonable request for an evidentiary test. Another statute, again, generally, provides an enhanced penalty for second and subsequent DUIs.

There are two cases here. The first involves Mr. Wainwright, who was charged with DUI, second offense, after a refusal to take an evidentiary test. The trial court tossed the second offense charge, reasoning that the prior conviction was an essential element of the criminal refusal charge and couldn’t also be used to support a DUI2 charge—the idea being that the word “another” in the penalty enhancement statute requires more than one prior conviction to trigger its application. There was a similar charging and result in Mr. Wilder’s case—except in Mr. Wilder’s case, the trial court dialed a DUI4 back to a DUI3. In both cases, the State appealed, the SCOV consolidated, and here we are.

The State says the trial court botched it when it concluded that the same prior conviction couldn’t be applied to both criminalize a refusal and also enhance penalties. The parties agree it’s a legislative-intent question, so this is a question-of-law-only appeal, which gets complete SCOV-alicious review.

This reminds me: You know that song Fergalicious by Fergie? I really think someone needs to do an Elmer Fudd version titled Fuddawicious. Just think about that for a few moments. You’re welcome.

At any rate, when the SCOV starts with, “As we have repeatedly stated,” you know it’s a back-to-school moment. When interpreting statutes, the SCOV is always trying to implement the legislature’s intent, so the first place to look is at the plain and ordinary meaning of the statute. The SCOV notes that it interprets penal statutes strictly, but not so strictly as to defeat the statutes’ purpose. Also, though the rule of lenity generally applies in the criminal context, the SCOV won’t invoke it unless the language is ambiguous.

Here, the four-justice majority concludes that “the language is clear.” The majority reasons that by referring to the DUI statute generally (which includes the refusal subsection) in the penalty enhancement statute, the legislature didn’t intend to limit the application of a prior conviction to one instance. The majority reasons that the general, unlimited reference is sufficiently clear to indicate that the legislature intended to allow application of a prior DUI conviction to criminalize refusal and to enhance the penalty for a subsequent DUI.

The majority reasons “what is also plain is that the statute does not contain the additional requirement imposed by the trial court.” In other words, the majority reasons that the trial court read a requirement into the statute that is simply not there.

The majority further reasons that the trial court’s interpretation results in inconsistency—that the refusal results in a lower-leveled DUI, when a straight-up DUI itself would result in a higher-leveled DUI. For example, when the prior conviction is considered only an element of the refusal and not used in the penalty enhancement, the DUI4 refusal becomes a DUI3, yet a straight-up DUI4 stays a DUI4.

Defendants make some valiant arguments citing cases where the SCOV has rejected using multiple convictions from the same conduct to impose habitual-offender status, and likening the situation to using aggravating factors to support a second identical charge for the same conduct, which the SCOV has also rejected, but the majority doesn’t buy any of it.

The majority reasons that the penalty is enhanced only once, and the criminal refusal is a separate issue. Thus, these cases go back to the trial court for further proceedings.

Justice Skoglund dissents, reasoning that the majority renders portions of the statute superfluous. The dissent notes that a number of penalties are laid out for first-time violations of the various subsections of the DUI subsections. Accordingly, the dissent reasons, “The statutory scheme as a whole, therefore, refutes reliance on the same prior conviction both to criminalize a refusal under § 1201(b) and to enhance the penalty for the violation.”

The dissent points out that there’s a different subsection that lowers the threshold blood-alcohol content to 0.02 when the defendant has a conviction within three years of a double-the-limit second-or-subsequent conviction. The majority didn’t really address that issue, and it supports the dissent’s position.

The dissent points to the rule of lenity, noting that the application favored by the majority includes at least some ambiguity under the statutory scheme and those ambiguities are s’posed to be resolved in favor of the defendant. ‘

The dissent—while noting that the inquiry must be Vermont specific—looks to a number of out-of-state decisions that take a similar approach to that proposed by the defense and the dissent. The dissent reasons there is “nothing inherently ‘absurd’ in a legislative determination that, before committing the first offense of refusal to submit to an alcohol test, a defendant should have experienced at least one prior DUI conviction.” The absurd-results doctrine is supposed to be applied sparingly, and the majority uses it broadly. Accordingly, the dissent would affirm the trial court’s dismissal of the enhanced counts.

Another reason not to drink and drive this holiday season. Stay safe out there, folks.