Newlun v. State
| Decision Date | 16 April 2015 |
| Docket Number | No. F–2014–335.,F–2014–335. |
| Citation | 2015 OK CR 7,348 P.3d 209 |
| Parties | Starr Fernette NEWLUN, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
348 P.3d 209
2015 OK CR 7
Starr Fernette NEWLUN, Appellant
v.
STATE of Oklahoma, Appellee.
No. F–2014–335.
Court of Criminal Appeals of Oklahoma.
April 16, 2015.
Gregory N. Hope, Tulsa, OK, attorney for defendant at trial.
James Pfeffer, Assistant District Attorney, Tulsa, OK, attorney for state at trial.
E. Zach Smith, Gregory N. Hope, Tulsa, OK, attorneys for appellant on appeal.
E. Scott Pruitt, Oklahoma Attorney General, Diane L. Slayton, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.
OPINION
JOHNSON, Judge.
¶ 1 Appellant Starr Fernette Newlun, was tried in a non-jury trial in the District Court of Tulsa County, Case No. CF–2013–843, and convicted of Aggravated Driving Under the Influence of Alcohol, after former conviction of a felony DUI (Count 1), in violation of 47 O.S.Supp.2012, § 11–902(D), and Failure to Yield at an Intersection (Count 2), in violation of 47 O.S.2011, § 11–403. The Honorable William C. Kellough, who presided at trial, sentenced Newlun to five years suspended and a $600.00 fine for Count 1 and a fine of $10.00 for Count 2. From this Judgment and Sentence, Newlun appeals, raising the following questions:
(1) whether the present driving under the influence of alcohol—aggravated offense is a felony; and
(2) whether Oklahoma legal authority provides that a subsequent offense of driving under the influence of alcohol, committed over ten years after the sentence imposed on the previous offense has been completed, can be treated as a felony.
¶ 2 We find relief is required and that the district court's Judgment and Sentence on Count 1 should be modified. The Judgment and Sentence on Count 2 is affirmed.
Background
¶ 3 On November 3, 2012, Starr Newlun was stopped in Tulsa after Captain Robert Holman with the Tulsa County Sheriff's Office saw her hit a curb with her car three times and run a stop sign. Newlun smelled strongly of alcohol, had slurred speech, bloodshot watery eyes and difficulty standing. She admitted to being drunk and failed several field sobriety tests. She also agreed to take a breath test which showed a result of .22 BAC, fifteen hundredths over the limit.
¶ 4 Newlun was subsequently charged and convicted of felony aggravated driving under the influence (DUI), after a prior felony DUI. She had been previously convicted of felony DUI on October 22, 1997, and sentenced to two years imprisonment. Prior to trial on this case, Newlun filed a motion to dismiss arguing that she could be convicted only of misdemeanor DUI in this case because her prior felony DUI conviction was committed and the resulting sentence completed more than ten years before the crime in this case was committed. The trial court denied Newlun's motion, finding that “once a person has achieved a felony status, [ ] the ten year rule does not apply.”
Propositions
¶ 5 Newlun argues on appeal that the trial court's ruling was in error and that under 47 O.S. Supp.2012, § 11–902, her conviction for DUI in this case should be a misdemeanor, not a felony. Because this claim raises an issue of statutory interpretation, it presents a question of law that this
Court reviews de novo. State v. Hurt, 2014 OK CR 17, ¶ 3, 340 P.3d 7 ; State v. Davis, 2011 OK CR 22, ¶ 5, 260 P.3d 194, 195.
¶ 6 Title 47 O.S. Supp.2012, § 11–902(C)(1) provides that a person convicted of driving under the influence “shall be guilty of a misdemeanor for the first offense.” This section further provides that if, during the period of court-imposed probation or within ten years of the date following the completion of the execution of any sentence or deferred judgment for a violation of this section, a person commits a second offense pursuant to the provisions of this section, that person shall, upon conviction, be guilty of a felony. 47 O.S.Supp.2012, § 11–902(C)(2). This section also addresses the punishment provisions for those convicted of second and third or subsequent felony offenses of this section. 47 O.S.Supp.2012, § 11–902(C)(3) & (4).
¶ 7 As to aggravated driving under the influence, 47 O.S.Supp.2012, § 11–902(D) provides, “[a]ny person who is convicted of a violation of driving under the influence with a blood or breath alcohol concentration of fifteen-hundredths (0.15) or more pursuant to this section shall be deemed guilty of aggravated driving under the influence.” This subsection further provides:
Nothing in this subsection shall preclude the defendant from being charged or punished as provided in paragraph 1, 2, 3, 4 or 5 of subsection C of this section. Any person who is convicted pursuant to the provisions of this subsection shall be guilty of a misdemeanor for a first offense and shall be punished as provided in paragraph 1 of...
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