dissenting.
I must respectfully dissent because KRS 189A.010(4)(d) establishes the felony offense of driving under the influence, fourth or subsequent offense, and it is not merely a sentencing statute.
As stated in my other dissenting opinions, O’Bryan v. Commonwealth, Ky., 920 S.W.2d 529 (1996), and Dedic v. Commonwealth, Ky., 920 S.W.2d 878 (1996), I must conclude that the proof as to earlier convictions was necessary in determining guilt and such evidence was admissible during the guilt phase of the trial despite the possible danger of prejudice resulting from its introduction.
The three previous DUI convictions not only serve to enhance punishment, but also change the character of the offense from a misdemeanor to a felony. Therefore, the prior DUI convictions should be considered as an element of the offense or proof of jurisdiction. KRS 532.055 does not preclude the introduction of the prior DUI convictions when introduced to prove that a felony offense has occurred. The probative value of proving that a felony DUI occurred clearly outweighed the prejudice resulting from the introduction of the prior convictions during the case-in-chief.
The Court of Appeals based its decision on Clay v. Commonwealth, Ky., 818 S.W.2d 264 (1991), in which this Court held that in a drug ease where a subsequent offense is charged that the trial is to be bifurcated in accordance with the truth in sentencing act and that no reference is to be made to the prior offense until the sentencing phase of the trial. Clay, supra, specifically held that the commission of the prior offense or offenses was not a necessary element to determine guilt.
If Clay is applicable to DUI cases, it should be overruled to the extent that it precludes proof that a felony has been committed. I would reverse the decision of the Court of Appeals.
GRAVES and KING, JJ, join in this dissent.