Koenig v. State

• Decision Date: 10 November 1983
• Docket Number: Nos. 14124,14202,s. 14124
• Citation: 99 Nev. 780,672 P.2d 37
• Parties: Raymond William KOENIG, Appellant, v. The STATE of Nevada, Respondent. Chester Edwin PACHECO, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 37

672 P.2d 37

99 Nev. 780

Raymond William KOENIG, Appellant, v. The STATE of Nevada, Respondent.

Chester Edwin PACHECO, Appellant, v. The STATE of Nevada, Respondent.

Nos. 14124, 14202.

Supreme Court of Nevada.

Nov. 10, 1983.

Thomas E. Perkins, State Public Defender, William G. Rogers, Robert A. Bork, and Laura Fitzsimmons, Deputy Public Defenders, Carson City, for appellants.

Brian McKay, Atty. Gen., Carson City, Brent T. Kolvet, Dist. Atty., and Michael P. Gibbons, Deputy Dist. Atty., Douglas County, Virginia R. Shane, Dist. Atty., Humboldt County, Winnemucca, for respondent.

OPINION

STEFFEN, Justice:

These are consolidated appeals ¹ from judgments of conviction of driving under the influence of intoxicating liquors with two or more prior convictions. For the reasons set forth hereinafter, we affirm both convictions.

The facts of each case are as follows:

Koenig: On February 18, 1982, Koenig was arrested after having been stopped and subjected to field sobriety tests. It was later determined that Koenig had previously been convicted of driving under the influence of intoxicating liquors; he therefore was charged with driving under the influence of intoxicating liquors with two or more prior convictions within five years, in violation of NRS 484.379(5).

Prior to trial, Koenig petitioned for a writ of habeas corpus on the basis that there was insufficient evidence to bind him over for trial. Koenig also filed motions to determine the admissibility of evidence prior to trial, and to dismiss the criminal information against him, based on alleged inadequacy of the court records regarding the prior convictions. The habeas petition and the motions were denied.

At trial, the district court ruled that Koenig's prior misdemeanor convictions would not be considered as an element of the offense charged and would not be submitted to the jury. Over Koenig's objection, the convictions were admitted into evidence before the trial judge only, for purposes of penalty enhancement. Five prior convictions were put into evidence. Of those five convictions, the record indicated that Koenig had been represented by counsel in four instances. The record further indicated that in all five cases Koenig had been advised of his constitutional rights in entering guilty pleas.

Koenig was convicted, and this appeal ensued.

Pacheco: On February 10, 1982, Pacheco was arrested and subjected to a field sobriety test after a high speed automobile chase. It was later determined that Pacheco had been convicted of driving under the influence twice before, and a felony information was filed charging Pacheco with driving under the influence of intoxicating liquors with two or more prior convictions within five years, in violation of NRS 484.379(5).

Pacheco filed a petition for a writ of habeas corpus which alleged that the court record of the prior misdemeanor convictions was constitutionally inadequate. The petition was ultimately denied. ² Pacheco also made a motion to dismiss the criminal complaint upon the basis that the prior convictions were constitutionally infirm due to an inadequate court record with regard to those guilty pleas. This motion was also denied.

At trial, counsel stipulated to the admission of the prior convictions, which had been received in the preliminary hearing without objection. After admission of the convictions, defense counsel, over objection, attempted to establish that the convictions had been unconstitutionally obtained. The trial court found Pacheco guilty, and this appeal followed.

We first turn to the characterization of the statute under which appellants were convicted, NRS 484.379(5). Appellant Koenig argues that the statute sets forth a separate offense of "felony driving under the influence with two or more prior convictions" which requires proof of the prior convictions as separate elements of the crime. Koenig contends that the statute, thus construed, mandates a reversal of his conviction because the trial court disallowed consideration of the prior convictions by the jury in reaching its verdict. We disagree.

Our review of the legislative history of NRS 484.379 convinces us that the statute provides for enhancement of penalty for subsequent convictions of the same or a similar offense and does not set forth a separate offense specifying prior convictions as separate elements. The title of the act which introduced the provisions of NRS 484.379(5) as it read at the time of the appellants' convictions states, in part, as follows:

An act relating to traffic violations; increasing the penalties for driving under or refusing a test for the influence of intoxicants; ...

1981 Stats. Nev. 1922 (emphasis added). Furthermore, the provision which NRS 484.379(3), (4) and (5) replaced appears clearly to have been a penalty enhancement statute:

Upon a subsequent conviction within 3 years, the person so convicted shall be punished by confinement in the county or municipal jail for not less than 10 days, nor more than 6 months or by a fine of not more than $500 or by both such fine and imprisonment.

No judge or justice of the peace in imposing sentences provided for in this section shall suspend the same or any part thereof.

1981 Stats. Nev. at 1925.

In enacting the statute as it read at the time of appellants' convictions, the legislature clearly intended that it provide for penalty enhancement for subsequent convictions of the same or a similar offense. ³ Thus, the trial court in Koenig's case correctly precluded the jury from considering evidence of his prior convictions in its deliberations.

Koenig argues that if NRS 484.379(5) is, as we now hold, a penalty enhancement statute, the trial court committed reversible error in allowing any reference to his prior convictions to come before the jury. Jury Instruction # 2 stated that Koenig was being tried for the crime of "[d]riving under the influence of intoxicating liquor with two or more prior convictions." Unquestionably, it was error to admit any reference to Koenig's prior convictions. The error was harmless, however, in light of the overwhelming evidence of guilt in the form of the arresting officer's testimony, the results of Koenig's breathalyzer test and the admissions of Koenig himself during trial. ⁴ See Revuelta v. State, 86 Nev. 587, 472 P.2d 343 (1970); Jacobs v. State, 91 Nev. 155, 532 P.2d 1034 (1975); NRS 178.598.

Appellants next argue that under the terms of NRS 484.379(5), as it read at the time of their convictions, the statute may only apply where a prior conviction has been obtained under NRS 484.3795 or a law that prohibits the same conduct--driving under the influence of intoxicating liquor or controlled substances when death or substantial bodily harm results. Thus, they conclude, it is improper for the trial court to consider prior misdemeanor convictions for driving under the influence of alcohol or controlled substances in considering sentencing under the statute. This argument is without merit.

At the time of appellants' convictions NRS 484.379 read, in pertinent part, as follows:

1. It is unlawful for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of a vehicle within this state.

2. It is unlawful for any person who is an habitual user of or under the influence of any controlled substance or any person who inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any chemical, poison or organic solvent, to a degree which renders him incapable of safely driving or exercising actual physical control of a vehicle to drive or be in actual physical control of a vehicle within this state. The fact that any person charged with a violation of this subsection is or has been entitled to use that drug under the laws of this state is not a defense against any charge of violating this subsection.

3. Any person who violates the provisions of subsection 1 or 2, and who has not been convicted of a violation of one of those subsections or any law which prohibits the same conduct in any jurisdiction within 5 years before the violation took place, is guilty of a misdemeanor. Except as provided in subsection 6, the court shall order him to pay tuition for and attend courses on the use and abuse of alcohol and controlled substances approved by the department, shall fine him not less than $100 nor more than the maximum fine permitted for a misdemeanor, and may sentence him to imprisonment in the county jail for not more than 6 months. The court may order the department of motor vehicles to suspend his driver's license for a definite period of not less than 30 days nor more than 1 year and not to allow him any limited driving privileges unless his inability to drive to and from work or in the course of his work would cause extreme hardship or prevent his earning a living.

4. Any person who violates the provisions of subsection 1 or 2 within 5 years after having once been convicted in any jurisdiction of a violation of subsection 1 or 2, NRS 484.3795 or a law which prohibits the same conduct is guilty of a misdemeanor. Except as provided in subsection 6, the court shall sentence him to imprisonment for not less than 10 days nor more than 6 months in the county jail, fine him not less than $500 and direct the department of motor vehicles to suspend his driver's license for a period specified in the order which must be not less than 6 months and not allow him any limited driving privileges unless his inability to drive to and from work or in the course of his work would cause extreme hardship or prevent his earning a living.

5. Except as provided in subsection 6, any person who violates the provisions of subsection 1 or 2 within 5 years after having been convicted more than once in any jurisdiction of a violation of subsection 1 or 2, NRS 484.3795 or a law which prohibits the same conduct, shall be punished by...