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State v. Shaver9/17/1999
he substantive elements of the offense dealt with by § 32-5A- 191 are set out in subsection (a). ...
"....
"... Subsection (h), while increasing the severity of the punishment, does not alter the substantive offense set out in subsection (a)."
Ex parte Parker, ___ So.2d at ___.
While the Supreme Court's determination that prior DUI convictions were not elements of a substantive offense set out in § 32-5A-191(h), and, therefore, that they should not be listed in the indictment or evidence of them admitted into evidence at trial but should be used for enhancement purposes only, resolved the main issue presented in Ex parte Parker, its holding seemed to create a situation where a defendant could be tried for the misdemeanor offense of DUI in violation of § 32-5A-191 -- an offense within the original jurisdiction of the municipal or district court -- but, if convicted, could be sentenced for a felony -- an offense within the jurisdiction of the circuit court. However, in Ex parte Form-by, [Ms. 1972151, August 27, 1999] ___ So.2d ___, ___ (Ala.Cr.App. 1999), the Supreme Court clarified its holding in Ex parte Parker, by stating that "a fourth or subsequent DUI conviction is a felony conviction, rather than a misdemeanor conviction" and " rosecutions for felony DUI offenses ... should continue to be in circuit court."
Accordingly, it appears to this Court that in cases where the charged DUI would be a fourth or subsequent offense, the State should implement a procedure like the one used in Ex parte Form-by. The prosecutor should seek an indictment from a grand jury to invoke the jurisdiction of the circuit court, and the case should be tried in circuit court. We remind the state, however, that the indictment should charge a felony in violation of § 32-5A-191(h), but not list the prior DUI convictions, and the state should not refer to the prior DUI convictions at trial.
As the Supreme Court noted in Ex parte Form-by, the indictment, in and of itself, acts as notice to the defendant that the State is invoking the circuit court's jurisdiction to impose, upon conviction for a violation of § 32-5A-191(a), the felony punishment mandated by § 32- 5A-191(h). We recommend that before a defendant's trial begins, (preferably at arraignment), the State make a proffer to the circuit court of the evidence of the prior DUI convictions it intends to rely on for sentence enhancement. This proffer made before trial also provides the defendant with notice of the charged offense and the potential felony punishment. If the circuit court is satisfied that the State has proven three or more legal DUI convictions, the prosecution should proceed in circuit court. If the state fails to provide adequate legal proof of at least three prior DUI convictions, the circuit court should transfer the case to the appropriate lower court.
In situations where jurisdiction for the DUI offense originates in municipal courts but sufficient additional DUI convictions are brought to light to invoke the provisions of § 32-5A-191(h), the municipal court should transfer the case to the circuit court. See § 12-11-11, Ala. Code 1975. We note that § 12-17-184(2), Ala. Code 1975, provides that it is the duty of the district attorney to pursue and prosecute all indictable offenses. After an indictment is returned, the procedure to determine whether the three prior DUI convictions may be used to enhance the subject DUI conviction would be the same in municipal cases as in district court cases. Furthermore, we believe judicial economy would also dictate that any other traffic offenses arising contemporaneously with a fourth or subsequent DUI offense should be prosecuted with the char
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