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State v. Bird

Court of Appeals of Washington, Division 1

June 1, 2015

The State of Washington, Appellant ,
v.
Travis Joshua Bird, Respondent

Oral Argument February 24, 2015

Appeal from Whatcom County Superior Court. Docket No: 13-1-00069-8. Judge signing: Honorable Charles Russell Snyder. Judgment or order under review. Date filed: 02/03/2014.

David S. McEachran, Prosecuting Attorney, and Nathan E. Deen, Deputy, for appellant.

Jeffrey A. Lustick and Adrian Martinez Madrone (of Lustick, Kaiman & Madrone PLLC ), for respondent.

Authored by Michael J. Trickey. Concurring: Marlin Appelwick, J. Robert Leach.

OPINION

Page 216

Trickey, J.

[187 Wn.App. 943] [¶1] A charge of driving while under the influence (DUI) may be elevated to a felony when a defendant has previously been convicted of vehicular assault while under the influence of alcohol or drugs. Here, the defendant had previously entered an Alford [1] plea to vehicular assault under all three alternative means, including driving while under the influence. Moreover, it is clear from the underlying facts in that case that the defendant was under the influence of alcohol and drugs when his passenger was injured. Accordingly, we reverse the trial court and remand for further proceedings.

FACTS

[¶2] In January 2013, Bird was stopped by law enforcement officers for erratic driving. The officers noticed that Travis Bird had slurred speech and red eyes. Bird admitted [187 Wn.App. 944] to drinking. Bird performed poorly on field sobriety tests. Additionally, a portable breath test showed a sample alcohol concentration of 0.138. The officers noted that Bird had a prior vehicular assault conviction. Bird told the officers that he was aware of the conviction and, further, that he was aware that this current offense would be a felony. Bird was arrested and charged with a felony DUI.

[¶3] The charge was elevated to a felony because of Bird's previous conviction of vehicular assault in 2009. At that time, Bird entered an Alford plea to vehicular assault as charged in the original information. The plea stated that the court could " review the police reports and/or a statement of probable cause supplied by the prosecution to establish a factual basis for the plea." [2] The court entered findings accepting the plea and noting that sufficient probable cause existed to find Bird guilty of " Vehicular Assault." [3] The court then entered a felony judgment and sentence finding Bird guilty on a plea of " Vehicular Assault - All Alternatives." [4] The notation " (DUI)" is handwritten over " All Alternatives." [5]

[¶4] Bird moved to dismiss the felony charge for lack of proof of the predicate offense. The trial court agreed and dismissed the felony charge without prejudice. The State appeals.

ANALYSIS

[¶5] Under RCW 46.61.502(6)(b)(ii) and RCW 46.61.5055(4)(b)(ii), a DUI charge can be elevated to a felony when a person has been previously convicted of vehicular assault while under the influence of intoxicating liquor or any drug, as defined by RCW ...


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