State v. MacE

Judge SCHWARTZMAN,

concurring.

I concur in the opinion of this Court. I write separately to further amplify two of the issues addressed in the lead opinion.

1. Whether Evidence of Mace’s Prior DUI Should Have Been Admitted

I agree that Mace “opened the door” when he foolishly volunteered that, “I don’t drink and drive.” Moreover, the district judge is to be commended for balancing the competing interests under I.R.E. 403 and denying admission of Mace’s prior felony DUI status. I would suggest, however, that an even more cautious approach would be prudent in these circumstances to avoid the inherent prejudice sought to be protected against under I.R.E. 404(b), i.e. the legalesque maxim of “once a drunk driver, always a drunk driver.” This is especially true where the prior conduct or evidence is for the very same offense for which the defendant is currently on trial. To that extent, a district court could limit the state’s inquiry to the fact of a DUI stop or *908arrest rather than a conviction, and so further reduce the potential prejudicial impact.

2. Whether the Persistent Violator Statute Was Applicable

I endorse Judge Lansing’s suggestion that this Court’s Brandt rationale may need to be reexamined by our Supreme Court. I, too, am concerned that the “exception” articulated in Brandt may nearly swallow up the general rule. Just recently this Court wrestled with a similar issue in State v. Harrington, 133 Idaho 563, 990 P.2d 144 (Ct.App.1999). I wonder whether, if Harrington had entered another Piggly Wiggly in an adjoining neighborhood or county rather than the very same store, or if he was about to burgle a competitor next door, such as a Wiggly Piggly, the result would have been the same, i.e. a ruling that the two convictions and sentences issued on the same day in the same proceeding were one for the purposes of sentencing enhancement under I.C. § 19-2514? Such may be the stuff of Supreme Court review.