WPIC 92.28 Driving or Being in Physical Control While Under the Influence—Felony—Definition of ...

Use this instruction for a felony driving under the influence or felony physical control of a vehicle under the influence when the defendant is charged with the “prior offense” alternative means and when one or more of the predicate prior offenses are determined by the court to be comparable to a prior offense in Washington, as defined in RCW 46.61.5055. Insert the statutory name of the prior out-of-state offense, or prior offense under a local ordinance, in the first blank space. Insert the name of the Washington offense that the prior offense was found comparable to in the second blank space.

As appropriate, use with WPIC 92.25 (Driving or Being in Physical Control While Under the Influence—Felony—Definition), WPIC 92.26 (Driving or Being in Physical Control While Under the Influence—Felony—Elements), and WPIC 92.27 (Driving or Being in Physical Control While Under the Influence—Felony—Definition of Prior Offense).

RCW 46.61.502(6) and 46.61.504(6). Like many of the statutes in this area, there have been a number of amendments since initial enactment. Effective July 1, 2007, the Legislature created the new crime of felony driving/physical control while under the influence. Laws of 2006, Chapter 73, § 1. The means of commission of the felony offense were amended in 2009, 2011, 2012 by Initiative 502, 2013, and 2017. Laws of 2008, Chapter 282, § 20 (effective January 1, 2009); Laws of 2011, Chapter 293, §§ 1 through 9 (effective July 22, 2011); Laws of 2013, Chapter 3, § 33 (Initiative 502 (effective December 6, 2012)); Laws of 2013, Chapter 3, § 33 (Initiative 502 (effective December 6, 2012)); Laws of 2017, Chapter 335, § 1) (effective July 23, 2017).

See discussion of enhancing elements and prior convictions in the Comment to WPIC 92.26 (Driving or Being in Physical Control While Under the Influence—Felony—Elements).

The conviction of an equivalent municipal ordinance may be analyzed similarly to a comparable out-of-state conviction. RCW 46.61.502(14)(a)(i) and (ii). Although the phrase “comparable to” in referring to prior out-of-state convictions is a part of the statute, the phrase has been bracketed in both 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). The jury is unlikely to be asked to determine if an out-of-state conviction is “comparable” to a Washington state offense. Generally, the admissibility and validity of a prior offense is a question of law to be determined by the court. State v. Wu, 194 Wn.2d 880, 453 P.3d 975 (2019). See also State v. Chambers, 157 Wn.App. 465, 237 P.3d 352 (2010). That is, the court is to determine first whether the prior convictions are qualifying convictions that are admissible at trial, with the jury then to determine whether the prior convictions exist and whether the defendant is the person who was previously convicted. See also State v. Gray, 134 Wn.App. 547, 138 P.3d 1123 (2006); accord State v. Carmen, 118 Wn.App. 655, 77 P.3d 368 (2003). See also the discussion in the Comment to WPIC 36.51.02 (Violation of a Court Order—Felony—Elements).