(dissenting):
1 26 I respectfully dissent from the majority opinion in this case, which concludes that the legislature intended Utah Code section 41-6-44(6)(a) to constitute a sentence enhancement used to increase punishment for a recidivist rather than a separate DUI offense element. See Utah Code Ann. § 41-6-44(6)(a) (Supp.2004). In particular, I disagree with the majority's treatment of State v. Harris, 1 Utah 2d 182, 264 P.2d 284 (1958), and with the majority's statutory interpretation of section 41-6-44.
T27 Both the pertinent case law ruling in Harris that a prior conviction is a material element for which the jury must determine proof beyond a reasonable doubt, and the text of the statute-which does not unambiguously provide that prior convictions are to be used merely as a sentencing enhancement, support the conclusion that subsection (6)(a)-is a separate offense that includes the violation described in subsection (2)(a) and adds the additional element of "a third or subsequent conviction under this section within ten years of two or more prior convictions." Utah Code Ann. § 41-6-44(6)(a).
1 28 To begin, I disagree with the majority's disregard of Harris The majority attempts to distinguish Harris from this case by stating first that it is not applicable because it was decided under Utah's Constitution, which Palmer has not cited. Nonetheless, Harris is binding law that is directly on point. In Harris, the supreme court interpreted and applied a similar version of the relevant statute. The majority fails to acknowledge that although Harris was decided forty-five years ago, it has not been altered, distinguished, or reversed since the Utah Supreme Court decided it.
' 29 Second, the majority dismisses Harris because the case was decided before the United States Supreme Court decided Al-mendarez-Torres v. United States, 528 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 850 (1998), and because section 41-6-44 has been amended more than forty times since Harris was decided. However, Almendares-Torres provides little guidance as to whether the Utah State Legislature intended subsection 41-6-44(6)(a) to be a separate element of the offense or just a penalty enhancement. In Almendarez-Torres, the Supreme Court merely held that Congress intended to set forth a sentencing factor in United States Code subsection 1826(b)@). See 8 U.S.C. 1326(b)(2) (1988). Thus, it makes no difference that Harris was decided prior to Al-mendares-Torres.
130 Although the majority is correct in pointing out that Utah Code section 41-6-44 has been amended over forty times since Harris, the language and structure of the code is substantially the same. See Utah *78Code Ann. § 41-6-44 (1958); see id. § 41-6-44 (Supp.2004). Both versions of the statute set forth the initial elements of a DUI crime and then provide additional elements in later subsections. See id. § 41-6-44(d) (1958) ("Every person who is convicted of a violation of this section shall be punished upon a first conviction by ..., a second or subsequent conviction, ... shall be punished by ...." (emphasis added)); id. § 41-6-44(6)(a) (2004) ("A conviction for a violation of [subsection (2) is a third degree felony if it is: (1) a third or subsequent conviction under this section within ten years ...." (emphasis added)). Additionally, it is of no real consequence that the majority suggests that recent decisions have referred to subsection (6)(a) as an enhancement provision. Instead, it is key that Harris provides that prior convictions are to be treated as an element and no other case has contradicted that holding.
131 Moreover, the plain language and structure of the statute supports the Harris ruling that a prior conviction is a material element for which the jury must determine proof beyond a reasonable doubt. First, I disagree with the majority's focus on the fact that recidivism is the relevant subject matter of the statute, which the majority considers to be merely a typical factor to be considered at sentencing. See supra 112; see also Al-mendares-Torres, 528 U.S. at 230, 118 S.Ct. 1219. Although recidivism may be used as a sentencing factor, this categorization alone does not make clear the meaning of the statute. Rather, the issue before us is whether the legislature intended prior convictions under subsection (6)(b), that not only increases punishment but alters the degree of the charge, to be treated as a sentence enhancement or an element of the offense. A statute that allows a defendant to be charged and convicted without a jury trial on elements which change the charge from a class B misdemeanor to a third degree felony is disconcerting and reaches beyond mere punishment enhancement to subject a defendant convicted of such a felony to potentially incur serious collateral effects such as employment and deportation issues as well as loss of voting and gun possession privileges.1
32 I am not persuaded by the majority's reading of the plain language. The majority considers the plain language of subsections (6)(a) and (2) in conjunction with one another and determines that because subsection (6)(a) does not prohibit any particular activity or provide additional elements to those already articulated in subsection (2), that the language in subsection (6)(a), "[a] conviction for a violation of [slubsection (2)," is an express prerequisite to application of subsection (6)(a), making subsection (6)(a) a sentencing enhancement only.
1383 Rather, I read subsection (6)(a) as providing an additional element to those contained in subsection (2). Subsection (6)(a) makes it clear that before a defendant may be charged and convicted of a third degree felony DUI an additional element must be established, i.e., "a third or subsequent conviction ... within ten years of two or more prior convictions." Utah Code Ann. § 41-6-44(6)(a) (2004). As such, Palmer should not be convicted of third degree DUI without proof beyond a reasonable doubt that he had a third DUI conviction within ten years. Moreover, a prior conviction ought to be considered as an element because it is the only difference between a class B misdemeanor and third degree felony DUI. Without such a reading, the two charges would merge and a defendant who met all of the elements for a class B misdemeanor could be charged and convicted for a third degree felony with the presence or absence of a prior conviction considered only at sentence-ing.
€34 Finally, the structure of the statute supports the Harris ruling and the plain language reading of the statute articulated above. The majority also considers the structure of the statute and notes that several DUI erimes described in subsection (2) include within that section the element of prior convictions. While the majority would conclude that because we assume that the legislature's decision to include prior convie-tions within subsection and (v), and not within subsection (Z2)(a)(iii)-the section *79Palmer is being charged with-the difference was deliberate, and the prior conviction articulated in subsection (6)(a) is merely a sentencing enhancement. The majority concludes that had the legislature wanted to include prior conviction as an element to the violation articulated in (2)(a)(iii) it would have done so within that subsection and not in a later subsection. However, a closer look at the structure of the statute reveals evidence that the legislature intended prior conviec-tions under subsection (6)(a) to be treated as an element of the crime of third degree felony DUI.
135 The statute contains several sections which provide additional elements in a structure similar to subsection (6)(a) See id. § 41-6-448)(a)@D(A)-(C), (8)(b). For instance, subsection (3)(a)@M)(B) incorporates the additional element of "halving]l a passenger under 16 years of age in the vehicle at the time of the offense" into the violation articulated in subsection (2). Id. § 41-6-44(8)(a)@)(B). Subsection (8)(a)@)(B), which requires proof of "a passenger under 16 years of age in the vehicle at the time of the offense" has been treated as an element regardless of its appearance in a subsection other than (2). Id. This court held that
[blased upon the plain language of [section 41-6-44,] .... [to conviet a defendant of violating the part of the section 41-6-44 under which [the defendant] was charged, the [state is required to prove that the defendant had a "blood or breath alcohol concentration of .08 grams or greater at the time of operation or actual physical control" of the vehicle and that the defendant "had a passenger under 16 years of age in the vehicle at the time of the offense."
State v. Hernandez, 2008 UT App 276, 112, 76 P.3d 198 (citation omitted). Thus, by holding that prior convictions under subsection (6)(a) are not considered additional elements because they do not appear in subsection (2), see Utah Code Ann. § 41-6-44(2)(a)(iv)-(v), contradicts case law. Moreover, the application of said reasoning would effectively make the additional elements listed throughout the statute sentencing factors. See id. § 41-6-44(8)(a)Gif)(A)-(C). The discord between the statute's construction incorporating prior convictions under subsection (2) for some DUI charges and providing additional elements elsewhere in the statute for other DUI charges may be due to the fact that subsections (2)(a)(iv) and (v) were not original to the statute and were added in 2004. See Utah Code Ann. § 41-6-44 (Supp. 2004) (amendment notes). Based on the structure of the code as analyzed above it is my belief that the legislature intended subsection (6)(a)'s prior conviction language to be treated as an additional element and not a sentencing enhancement.2
136 Accordingly, I respectfully dissent from the majority opinion.
. Under federal law, a convicted felon may not possess a gun. See 18 U.S.C. § 922 (2000).
. The majority asserts that this reading of the statute would make the State "incapable of 'enhancing' numerous crimes regardless of the number of defendant's prior convictions" and would require the legislature to change the level of offense to a felony anytime it determines the punishment for a repeat offender should extend incarceration beyond one year. Supra T21 n. 14. This is not my position, nor would it be the result of treating prior convictions as an element of a DUI offense. Instead, the result of treating prior convictions as an element would be to avoid perfunctorily enhancing numerous crimes which may have serious collateral effects and to ensure that any such enhancements would be done thoughtfully and with due process.