From time to time, a judicial opinion is released that is so informative that it is worthy of two blog posts. A recent decision released by Division Three of the Court of Appeals of Washington, because the depth into which it discusses sentencing guidelines, does just that.

The facts are simply these. Enrique Hernandez pled guilty to felony driving under the influence and third degree assault. Before trial, he asked the court to declare his offender score. He disagreed with the State about what the score should be. He believed it should be a 5; the State believed it should be a 9.

The trial court agreed with the State, and took into account the following criminal history: a juvenile conviction for robbery and adult convictions for forgery, two DUIs, physical control convictions, malicious mischief, attempting to elude, possession of stolen property, and a felony DUI. Mr. Hernandez received 5 years in prison.

On appeal, Mr. Hernandez argued that the trial court erroneously considered previous convictions. RCW 9.94A.525(2)(e) governs what previous convictions a trial court may consider when sentencing someone for felony DUI. It is not easy to understand, but previous caselaw clarifies it considerably.

The statute itself states that courts may consider:

If the present conviction is felony driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502(6)) or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug (RCW 46.61.504(6)), all predicate crimes for the offense as defined by RCW 46.61.5055(14) shall be included in the offender score, and prior convictions for felony driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502(6)) or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug (RCW 46.61.504(6)) shall always be included in the offender score. All other convictions of the defendant shall be scored according to this section.

When read with the other parts of section 525, it is easy to see why courts may be confused. Apart from DUI offenses, the statute is unclear about what other offenses may survive. The court trying Mr. Hernandez thought all previous charges that fit within the statutory timeframes could be maintained, while other courts have concluded that only previous DUI and serious driving felony offenses could be included in an offender score.

With a circuit split amongst our Courts of Appeals, it seems a distinct possibility that our Supreme Court may soon address the issue to clarify what courts may consider when determining a felony DUI offender's score. Watch this space for more information.

If you have been charged with a DUI around Seattle, you need an experienced DUI attorney to protect your rights. Attorney Steve Karimi has decades of experience both prosecuting and defending those accused of a DUI. If you face a DUI charge, contact him today for a free consultation.