(dissenting) — I respectfully dissent from the majority's opinion for several reasons. First, while I am persuaded that what Perez did is egregious and onerous, I am not convinced that his conduct was more egregious or onerous than that found in a typical vehicular homicide. The majority is persuaded that the combination of factors cited by the sentencing judge makes Perez's offense particularly reprehensible, thus justifying the exceptional sentence. It notes that the sentencing judge emphasized that Perez was driving at night and that he was weaving in and out of traffic lanes at speeds as high as 60 m.p.h., all at a time when he had a substantial amount of alcohol in his system. As bad as that conduct sounds, it is, unfortunately, conduct commonly exhibited by many persons charged with vehicular homicide. By establishing a standard range of 36 to 48 months for the offense of vehicular homicide, the Legislature recognized that not all vehicular homicides are the same. It, therefore, gave judges the ability to fashion a sentence appropriate to the particular facts of the case.
Furthermore, in my judgment, sentencing courts should rarely rely on the fact that an offense is more egregious or onerous than the typical offense, in imposing an exceptional sentence in a vehicular homicide case. I recognize that Division Three of this court has recognized this factor as an appropriate basis for an exceptional sentence in such cases. State v. Smith, 58 Wn. App. 621, 794 P.2d 541 (1990), rev'd on other grounds sub nom. State v. Barnes, 117 Wn.2d 701, 818 P.2d 1088 (1991). I am not persuaded, however, that the Smith decision should be followed routinely. My concern about the use of that reason to support an exceptional sentence stems from my belief that judging one vehicular homicide to be more onerous than another is largely a subjective process, which is virtually impossible to review.
I know of no objective basis on which a trial judge can reliably determine that one offense is more onerous than *142another. Obviously, there are extremes of conduct that fall within the vehicular homicide statute. Within those extremes is the judge to simply rely on his or her instincts, or does that judge engage in a comparison of the instant case with other like cases that have come before that court for sentencing? Furthermore, what standards does the appellate court apply in determining if the trial court erred in reaching its decision that an offense is more onerous than the typical offense? It would seem that the appellate court must either defer completely to the trial court's view of the case, or substitute its own experience regarding the relative seriousness of offenses. Neither alternative is palatable in my opinion.
Here, although the sentencing judge set forth some facts that led him to conclude that this case was particularly onerous, I am not, as I have noted above, convinced that the facts of this case were atypical. In addition, the sentencing court made no effort to compare this case to others. In short, the sentencing judge seems to have instinctively concluded that this case was more onerous than the typical. I, for one, am not prepared to give sentencing judges unbridled discretion to make that determination. To do so would render the determinate sentencing feature of the sentencing reform act rather meaningless.
Finally, I do not believe that it was proper for the trial court to rely on Perez's prior convictions and court appearances for DWI in imposing an exceptional sentence. As the majority concedes, prior convictions for DWI are included in the offender score for vehicular homicide and, thus, do not provide a basis for an exceptional sentence.
I would reverse the sentence and remand for imposition of a standard range sentence.
Review denied at 122 Wn.2d 1015 (1993).