¶17 (dissenting) —Five years ago Kathleen Greene was charged with driving under the influence (DUI) and pleaded guilty to the lesser offense of first degree negligent driving. Last year she was charged and convicted of DUI. Under RCW 46.61.5055 the State seeks to use Greene’s previous plea as a “prior conviction” for a sentence enhancement even though she was not convicted of DUI. While such action may be allowed under the statute, it deprives Greene of her liberty absent the process due her under the constitution by increasing her punishment based on an unproven DUI charge. Nevertheless, the majority upholds the statute. I dissent.
Sanders, J.*729f 18 The trial court struck down the statute, relying on State v. Shaffer, 113 Wn. App. 812, 55 P.3d 668 (2002). In Shaffer, the defendant pleaded guilty to a charge of vehicular homicide and received a mandatory sentencing enhancement of 24 months because he had previously been charged with DUI, even though the previous conviction was for reckless driving. The Court of Appeals struck down the statute (former RCW 46.61.5055(ll)(a)(v) (1999))5 as unconstitutional since it increased the defendant’s punishment based on an unproven DUI charge. The court reasoned a sentence could not be enhanced under the statute for mere reckless driving or first degree negligent driving. An additional requirement is needed to trigger the mandatory enhancement: the unproved DUI charge. Such a mandatory enhancement violated due process because the State is never required to prove DUI; it never has to prove alcohol was even involved in the previous conviction. See Shaffer, 113 Wn. App. at 818 n.19 (describing situations where a DUI could be charged but not proved).
¶19 Further, the court reasoned the statute fell short of the “minimum constitutional standard required for criminal conviction. That standard is for proof beyond a reasonable doubt.” Id. at 819; see also In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (holding that due process requires the government to prove every element of a crime beyond a reasonable doubt). If a defendant pleads guilty to reckless driving or first degree negligent driving and later to an unrelated DUI, he is not liable for the mandatory enhancement. If, however, the first crime was charged as DUI, then he is so liable. A difference in *730punishment is predicated on an unproved charge. This result violates due process.
¶20 Shaffer is persuasive, but the majority disapproves of its reasoning. The majority concludes the State is required to demonstrate the first conviction was alcohol related. Majority at 747. This is so, the majority reasons, because the statute requires a DUI charge. Id. But that is the problem. The first conviction could have been charged as DUI even if the charge was inaccurate and could not be proved. See Shaffer, 113 Wn. App. at 818 n.19. The result is a mandatory sentence enhancement based on a conviction that may not have involved alcohol. Due process requires greater safeguards to protect individual liberty.
¶21 I would affirm the district court and therefore dissent.
Chambers, J., concurs with Sanders, J.Reconsideraton denied September 9, 2005.
The relevant language of the former version is identical to the present version, which includes this provision in the definition of a “prior offense”:
A conviction for a violation of RCW 46.61.5249 [first degree negligent driving], 46.61.500 [reckless driving], or 9A.36.050 [reckless endangerment] or an equivalent local ordinance, if the conviction is the result of a charge that was originally filed, as a violation of RCW 46.61.502 [DUI] or 46.61.504 [physical control of a vehicle under the influence], or an equivalent local ordinance, or of RCW 46.61.520 [vehicular homicide] or 46.61.522 [vehicular assault].
RCW 46.61.5055(12)(a)(v) (emphasis added).