WPIC 92.27 Driving or Being in Physical Control While Under the Influence—Felony—Definition of ...

Use this instruction only if the defendant is charged with felony driving under the influence or felony physical control of a vehicle under the influence using the alternate means of “three” or “four” or more prior offenses within ten years. See the Comment to WPIC 92.26 (Driving or Being in Physical Control While Under the Influence—Felony—Elements) for dates of application.

Use this instruction with WPIC 92.25 (Driving or Being in Physical Control While Under the Influence—Felony—Definition) and WPIC 92.26 (Driving or Being in Physical Control While Under the Influence—Felony—Elements) when applicable to define the prior offenses of the charged offense.

Use bracketed material as applicable. For directions on using bracketed phrases, see WPIC 4.20 (Introduction).

Use WPIC 92.28 (Driving or Being in Physical Control While Under the Influence—Felony—Definition of Comparable Offense) as applicable. This instruction may be modified if an Old Chief stipulation is entered. See WPIC 4.78 (Stipulation of Prior Offense (“Old Chief Stipulation”)).

RCW 46.61.502(6) and RCW 46.61.504(6); RCW 46.61.5055, as amended in 2014. Laws of 2014, Chapter 100, § 1 (effective June 12, 2014).

The definition contained in WPIC 92.27 should not be used to calculate a prior offense for purposes of sentencing in a DUI gross misdemeanor offense under RCW 46.61.502. A prior offense is defined differently for a DUI felony and gross misdemeanor, both as an element and for sentencing. RCW 46.61.5055(1) through (4); see State v. Arndt, 179 Wn.App. 373, 320 P.3d 104 (2014).

The essential format of this instruction was used by the trial court in State v. Chambers, 157 Wn.App. 465, 473–74, 237 P.3d 352 (2010). Refusal to give an instruction similar to WPIC 92.27 was found to be reversible error in State v. Mullen, 186 Wn.App. 321, 345 P.3d 26 (2015) (abrogated on other grounds by State v. Wu, 194 Wn.2d 880, 453 P.3d 975 (2019)). It is a threshold determination to be decided by the trial court whether a prior conviction meets and qualifies within the statutory definition of an admissible predicate offense. State v. Wu, 194 Wn.2d 880, 453 P.3d 975 (2019). See also State v. Chambers, 157 Wn.App. at 479; State v. Bird, 187 Wn.App. 942, 352 P.3d 215 (2015).

The statute provides that when originally charged as DUI or Physical Control, a subsequently amended charge of Negligent Driving 1st degree or Reckless Driving will be a qualifying prior offense for purposes of felony DUI. (RCW 46.61.5055(14)(xii). No additional proof of involvement with alcohol or drugs on the date of the prior incident is required of the prosecution. State v. Wu, 194 Wn.2d 880, 453 P.3d 975 (2019), abrogating State v. Mullen, 186 Wn.App. 321, 345 P.3d 26 (2015).

The State must prove beyond a reasonable doubt the existence of the predicate prior offenses within the specified period to convict a person of the charged offense. State v. Wu, 194 Wn.2d 880, 453 P.3d 975 (2019). See also State v. Chambers, 157 Wn.App. 465, 481, 237 P.3d 352 (2010). But see State v. Cochrane, 160 Wn.App. 18, 253 P.3d 95 (2011) (in a bench trial the court found the defendant could waive an objection as to time of the predicate offense by failing to object). See additional discussion at Comments to WPIC 92.18 (Driving or Being in Physical Control Under the Influence—Felony—Elements) and WPIC 36.51.02 (Violation of a Court Order—Felony—Elements).

The practitioner should be familiar with the predicate offenses and the temporal period of the prior convictions that elevate the offense of DUI and physical control to a class C felony as defined in RCW 46.61.502, 46.61.504, and 46.61.5055.

The language of the statute has been modified for this instruction. The phrase “or after,” as used in the statute to define a prior offense for purposes of a felony driving/physical control under the influence offense, has been deleted from the instruction to conform to the express holding in State v. Castle, 156 Wn.App. 539, 234 P.3d 260 (2010); RCW 46.61.5055(14)(d). In Castle, a case involving a pre-trial motion to dismiss a felony DUI, the Court of Appeals held that to prove the “prior offenses element” of felony DUI, each “prior offense” must have resulted in a conviction (or entry into a deferred prosecution or imposition of deferred sentence) prior to the driving involved in the current incident. State v. Castle, 156 Wn.App. 539, 234 P.3d 260 (2010). Distinguish City of Seattle v. Winebrenner, 167 Wn.2d 451, 461, 219 P.3d 686 (2009) (affirmed the trial court finding that for a gross misdemeanor DUI sentencing, a prior offense means that the arrest for the prior offense preceded in time the arrest for the current offense even though conviction may enter after the current offense).