278 P.3d 1159 (Wyo. 2012), S-11-0237, Spreeman v. State

Docket Nº:S-11-0237.
Citation:278 P.3d 1159, 2012 WY 88
Opinion Judge:BURKE, Justice.
Party Name:Kristen N. SPREEMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Attorney: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. Enge...
Judge Panel:Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
Case Date:June 20, 2012
Court:Supreme Court of Wyoming
 
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Page 1159

278 P.3d 1159 (Wyo. 2012)

2012 WY 88

Kristen N. SPREEMAN, Appellant (Defendant),

v.

The STATE of Wyoming, Appellee (Plaintiff).

No. S-11-0237.

Supreme Court of Wyoming.

June 20, 2012

Page 1160

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

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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...

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