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State v. Davis7/28/1999
State v. Davis, 1999 SD 98
HTML Code © State Bar of South Dakota, 1999
South Dakota Supreme Court Appeal from the First Judicial Circuit, Union County, SD Hon. Richard Bogue, Judge
Reversed
Considered on Briefs Jun 1, 1999; Opinion Filed Jul 28, 1999
[ ] The State appeals the dismissal of a part two information charging Shane Davis with fourth offense driving while under the influence of alcohol (DUI). We reverse and remand.
FACTS
[ ] Davis is from Castana, Iowa and was arrested for DUI in Union County, South Dakota in September 1998. After his arrest, the State filed an information charging him with one count of DUI and one count of driving with a revoked license. The State also filed a part two information charging him with fourth offense DUI based upon three prior DUI convictions in Iowa. The prior convictions included two convictions for third offense DUI constituting felonies under Iowa law.
[ ] The charge of fourth offense DUI in this case was filed pursuant to SDCL 32-23-4.6 which provides in pertinent part:
"If conviction for a violation of § 32-23-1 [i.e., DUI] is for a fourth offense, or subsequent offenses thereafter, and the person has previously been convicted of a felony under § 32-23-4, the person is guilty of a Class 5 felony[.] (emphasis added)."
The issue in this case focuses on the language of SDCL 32-23-4.6 emphasized above. Generally, DUI is a Class 1 misdemeanor punishable by up to one year in jail and/or a fine of up to one thousand dollars. SDCL 32-23-2, 32-23-3, 22-6-2(1). However, SDCL 32-23-4 makes third offense DUI a Class 6 felony punishable by up to two years in the penitentiary and/or a fine of two thousand dollars. SDCL 22-6-1-(8). SDCL 32-23-4.6 further enhances the penalty for fourth offense DUI to a Class 5 felony punishable by up to five years in the penitentiary and/or a fine of five thousand dollars. SDCL 22-6-1(7). However, as a prerequisite to conviction of fourth offense DUI, the emphasized language of SDCL 32-23-4.6 quoted above requires conviction of a felony third offense DUI "under § 32-23-4[.]"
[ ] Since Davis' prior DUI convictions were all in Iowa, none of them were felony third offense convictions "under § 32-23-4[.]". For that reason, Davis filed a "motion for clarification" of the effect of the State's part two information for fourth offense DUI. The trial court held a hearing on Davis' motion and subsequently entered an order determining the State's part two information did not describe a fourth offense DUI violation under SDCL 32-23-4.6, but a third offense violation under SDCL 32-23-4. The order also granted the State leave to file an amended part two information. Treating the trial court's order as a dismissal of the part two information, the State filed this appeal as a matter of right pursuant to SDCL 23A-32-4:
"An appeal by a prosecuting attorney in a criminal case may be taken to the Supreme Court, as a matter of right, from a judgment, or order of a circuit court sustaining a motion to dismiss an indictment or information on statutory grounds or otherwise[.]"
ISSUE
[ ] Did the trial court err in dismissing the part two information?
[ ] The trial court found the language of SDCL 32-23-4.6 plain and unambiguous. Observing it requires conviction of third offense DUI "under § 32-23-4" as a prerequisite to conviction of fourth offense DUI and that none of Davis' prior DUI convictions were "under § 32-23-4," the trial court found the State's part two information insufficient to charge fourth offense DUI. The State argues the trial court erred in this in
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