Elements from prior out of state DWI not enough to charge a felony

If you have been charged with DWI, and you had prior DWIs in another state, you need to know that those previous guilty pleas cannot be used against you in some cases to enhance your penalty from a misdemeanor to a felony.

A recent case from Johnson County illustrated this point.

The Appellant Defendant was arrested for driving while intoxicated, and for driving while his license was revoked, following a traffic stop in 2016.

The State argued that Defendant was a “persistent offender” based on his convictions in 2005 and 2006 of two “intoxication-related traffic offenses” in Illinois. And based on his status as a “persistent offender,” the State alleged that the Defendant’s driving while intoxicated offense was enhanced from a class B misdemeanor to a class D felony.

At trial, the State presented evidence of his two Illinois convictions. Then the court found Defendant to be a persistent offender and convicted him of both driving while intoxicated (as a class D felony) and driving while revoked. 

The circuit court imposed a three-year sentence for the DWI conviction, but suspended the execution of the sentence and placed Defendant on probation for five years.  Defendant also was fined $250 fine for the driving while revoked count. The Defendant appealed.    

The argument the Defendant made was that his 2005 Illinois conviction does not qualify as an “intoxication-related traffic offense.”  That’s because the statute used to convict him made  it a crime to drive or be in actual physical control of a vehicle while “there [was] any amount of a drug . . . in [his] breath, blood or urine resulting from the unlawful use or consumption of cannabis . . .” 

Here is why this matters.  In Illinois, according to the Illinois Supreme Court, the offense of which the Defendant was convicted in 2005 did not require that he in fact be impaired by the presence of cannabis in his body.  But in Missouri, an individual can be convicted of driving under the influence of a drug only if that person is impaired by the drug. 

Therefore, logically, the Defendant’s 2005 Illinois offense did not contain all of the elements of the Missouri offenses of driving while intoxicated or driving under the influence of alcohol or drugs.  Therefore, the Defendant’s attorneys argued that the 2005 Illinois conviction lacked the most important element of impairment, and that the conviction cannot constitute an “intoxication-related traffic offense” within the meaning of Missouri’s § 577.023.1(4).

Now the State had a clever counter argument to that. They attempted to use extrinsic evidence of the offense such as from police reports and the officer’s testimony to try and show the Defendant was impaired. But the court was not having it, stating that considering facts beyond what was in evidence was inappropriate.

It is not appropriate, however, to consider facts beyond those actually underlying a prior conviction, to determine if the prior offense constitutes an “intoxication-related traffic offense.”

The Appellate Court ended up vacating the man’s Felony D conviction and remanded it to the circuit court to enter a conviction for DWI as a class B misdemeanor.

Opinion was written by Judge Alok Ahuja. 

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