Spreeman v. State

Citation278 P.3d 1159,2012 WY 88
Decision Date20 June 2012
Docket NumberNo. S–11–0237.,S–11–0237.
PartiesKristen N. SPREEMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

OPINION TEXT STARTS HERE

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel. Argument by Ms. Olson.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jackson M. Engels, Assistant Attorney General. Argument by Mr. Engels.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

BURKE, Justice.

[¶ 1] Appellant, Kristen N. Spreeman, challenges her conviction of felony driving while under the influence (DWUI) in violation of Wyo. Stat. Ann. §§ 31–5–233(b)(iii)(A) and (e). She claims that she did not have three prior qualifying convictions, as required by Wyo. Stat. Ann. § 31–5–233(e), to enhance her DWUI conviction to a felony. We affirm.

ISSUE

[¶ 2] Appellant presents the following issue:

Did the trial court err in denying Appellant's motion to dismiss the felony “DUI” charge against her, since she did not have three prior qualifying convictions?

The State phrases the issue as follows:

Under Wyo. Stat. Ann. § 31–5–233(e), driving while under the influence becomes a felony if a defendant has three prior convictions in this or any other state under a law prohibiting “driving while under the influence.” One of Spreeman's three previous Michigan convictions is for driving while “visibly impaired.” Is Michigan's prohibition against driving while “visibly impaired” a law that prohibits driving “while under the influence,” for purposes of sentencing enhancement under Wyo. Stat. Ann. § 31–5–233(e)?

FACTS

[¶ 3] The facts in this matter are undisputed. On December 19, 2010, an officer of the Gillette Police Department stopped Appellant for a traffic violation. An assisting officer smelled a strong odor of alcohol coming from Appellant and noticed that she was slurring her words and that her face was extremely flushed. After performing field sobriety tests, Appellant was arrested for driving while under the influence. Appellant was transported to the Campbell County Detention Center, where she agreed to provide a breath sample. The breath test revealed a blood-alcohol content of .21%, over two-and-a-half times the legal limit.

[¶ 4] Appellant was charged by felony information with felony driving while under the influence in violation of Wyo. Stat. Ann. §§ 31–5–233(b)(iii)(A) and (e) (LexisNexis Supp. 2010). The information alleged that Appellant had been convicted of three prior drinking and driving offenses within the last ten years, all of which had occurred in Michigan. Two of the prior offenses were for driving while intoxicated in violation of Mich. Comp. Laws § 257.625(1). The third prior conviction was for driving while visibly impaired in violation of Mich. Comp. Laws § 257.625(3). Appellant moved to dismiss the felony DWUI, asserting that her Michigan conviction for driving while visibly impaired could not be considered for enhancement purposes because that conviction did not constitute a violation of a “law prohibiting driving while under the influence” under Wyo. Stat. Ann. § 31–5–233(e).

[¶ 5] Following a hearing, the district court denied Appellant's motion to dismiss. In its order denying the motion to dismiss, the court stated that

A comparison of Wyoming's Driving While Under the Influence statute and Michigan's Operating While Impaired statute demonstrate both seek to prevent operation of a motor vehicle when alcohol consumption (i.e. consumption of intoxicating liquors) affects a person's ability to operate a vehicle (i.e. results in the deprivation of a person's normal control of his bodily or mental faculties).

Appellant entered a conditional guilty plea to the charged felony DWUI, reserving the right to challenge the denial of her motion to dismiss. She was sentenced to twelve to fourteen months in prison. This appeal followed.

STANDARD OF REVIEW

[¶ 6] Whether Appellant's Michigan conviction may be considered for enhancement purposes under Wyo. Stat. Ann. § 31–5–233(e) involves a question of statutory interpretation. We review questions of statutory interpretation de novo. Harvey v. State, 2011 WY 72, ¶ 6, 250 P.3d 167, 170 (Wyo.2011).

DISCUSSION

[¶ 7] Appellant entered a conditional guilty plea to felony driving while under the influence in violation of Wyo. Stat. Ann. §§ 31–5–233(b)(iii)(A) and (e). Those subsections provide, in relevant part, as follows:

§ 31–5–233. Driving or having control of vehicle while under influence of intoxicating liquor or controlled substances; penalties.

...

(b) No person shall drive or have actual physical control of any vehicle within this state if the person:

(i) Has an alcohol concentration of eight one-hundredths of one percent (0.08%) or more;

(ii) Has an alcohol concentration of eight one-hundredths of one percent (0.08%) or more, as measured within two (2) hours after the time of driving or being in actual physical control of the vehicle following a lawful arrest resulting from a valid traffic stop; or

(iii) To a degree which renders him incapable of safely driving:

(A) Is under the influence of alcohol;

...

(e) ... On a fourth offense resulting in a conviction or subsequent conviction within ten (10) years for a violation of this section or other law prohibiting driving while under the influence, he shall be guilty of a felony and fined not more than ten thousand dollars ($10,000.00), punished by imprisonment for not more than two (2) years, or both.

The statute defines [o]ther law prohibiting driving while under the influence” as “a statute of another state ... which prohibits driving while under the influence of intoxicating liquor, alcohol, controlled substances or drugs.” Wyo. Stat. Ann. § 31–5–233(a)(v).

[¶ 8] Appellant's prior convictions, all of which were received in Michigan, arose from violations of Mich. Comp. Laws § 257.625, which provides as follows:

§ 257.625. Operating motor vehicle while intoxicated; operating motor vehicle when visibly impaired; ...

(1) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parkingof vehicles, within this state if the person is operating while intoxicated. As used in this section, “operating while intoxicated” means any of the following:

(a) The person is under the influence of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance.

(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or, beginning October 1, 2013, the person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

...

(3) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state when, due to the consumption of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance, the person's ability to operate the vehicle is visibly impaired. If a person is charged with violating subsection (1), a finding of guilty under this subsection may be rendered.

(Emphasis added.) In Michigan, the phrase “visible impairment” means that the defendant's “ability to drive was so weakened or reduced by consumption of intoxicating liquor that defendant drove with less ability than would an ordinary, careful and prudent driver.” People v. Calvin, 216 Mich.App. 403, 548 N.W.2d 720, 723 (1996).

[¶ 9] Appellant contends that driving while “visibly impaired” under Mich. Comp. Laws § 257.625(3) does not constitute a statute “which prohibits driving while under the influence of intoxicating liquor, alcohol, controlled substances or drugs” because driving while “visibly impaired” in Michigan is a lesser included offense of “operating while intoxicated” under Mich. Comp. Laws § 257.625(1). Appellant also contends that the visible impairment standard is satisfied by a lesser degree of intoxication than operating a vehicle while “incapable of safely driving” as set forth in Wyo. Stat. Ann. § 31–5–233(b)(iii)(A), and is consequently not a qualifying offense for enhancement purposes under Wyo. Stat. Ann. § 31–5–233(e). The State claims, however, that Wyoming's enhancement provision does not restrict qualifying convictions to offenses that arise from violations of laws that are identical, or even substantially similar, to Wyoming's definition of driving while under the influence. It claims that the plain language of Wyoming's enhancement statute, in omitting any reference to the degree of intoxication required under another state's statute, does not limit qualifying convictions to those that arise under statutes which prohibit driving while under the influence “in exactly the same fashion and to the same degree that Wyoming does.” We agree with the State.

[¶ 10] In determining whether Mich. Comp. Laws § 257.625 constitutes an “other law prohibiting driving while under the influence” under Wyo. Stat. Ann. § 31–5–233(e), we apply our usual rules of statutory interpretation.

Our paramount consideration is the legislature's intent as reflected in the plain and ordinary meaning of the words used in the statute. Initially, we determine whether the statute is clear or ambiguous.

A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Conversely, a statute is ambiguous if it is found to be vague or uncertain and subject to varying interpretations. If we determine that a statute is clear and...

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