dissenting.
I must respectfully dissent from the majority opinion because the proof necessary as to the first three DUI convictions was neces*531sary to the determination of guilt, consequently such evidence was admissible during the guilt phase of his trial despite the danger of possible prejudice resulting from its introduction. I would affirm the decision of the Court of Appeals.
There is no question that during the five years preceding the October, 1992 DUI arrest of O’Bryan, that he was convicted on three occasions of misdemeanor DUI offenses. Therefore, he was charged with a Class D felony on his fourth DUI conviction. KRS 189A.010(4)(d).
The trial court relied on Clay v. Commonwealth, Ky., 818 S.W.2d 264 (1991), to support its ruling of dismissal. In Clay, swpra, this Court held that a trial court erred by permitting the Commonwealth to mention the prior drug related offenses of a defendant during the guilt phase of a trial for trafficking in cocaine.
I agree with the Court of Appeals opinion to the degree that the trial court erred by relying on Clay to support its ruling because in Clay the fact that the newest charged offense was a subsequent drug offense was irrelevant to the issue of the guilt of the accused, even though it was relevant to the issue of authorized penalty which could be imposed pursuant to KRS 218A.990 in that case. Here, by contrast, proof as to the first three offenses was necessary to establish that the current offense was a fourth offense and therefore a felony rather than a misdemeanor.
The proof of prior DUI convictions was necessary to establish guilt, that is the fact of such convictions was an essential element of the crime charged. Cf. Hall v. Commonwealth, Ky., 817 S.W.2d 228 (1991). A similar conclusion was reached in Duvall v. Commonwealth, Ky.App., 593 S.W.2d 884 (1979), where it was held that evidence of the defendant’s status as a convicted felon was a necessary element of proof in a prosecution charging the defendant with being a convicted felon in possession of a handgun.
There is no validity to the contention that the prior DUI convictions could be presented during the penalty phase of the trial rather than during the guilt phase. Although KRS 532.055 permits bifurcated felony trials, bifurcated misdemeanor trials are not authorized by the applicable statute. See KRS 532.090. Accordingly, in the absence of proof of the prior DUI convictions to establish that a current DUI charge was a fourth or subsequent offense within a five year period, the prosecution would be completely unable to prove that the current charge was a felony or to establish that it was entitled to introduce evidence regarding the prior conviction during the penalty phase of a felony trial. The entire fabric of the statute charging a fourth offense could collapse thereby frustrating the clear intent of the General Assembly.
I would affirm the decision of the Court of Appeals.
GRAVES, J., joins in this dissent.