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Mcguire v. State4/17/1991
or the day after tomorrow would justify and require the augmented penalty assessment.
Having then started with the initiating date, we are required to determine whether the event necessary for penal offense enhancement has occurred within or after the period of five years. The decisional factor here, as it would be in any case, is what event must have occurred within that previous five years for penal offense enhancement — crime commission or crime conviction. We make the determination as a matter of law by statutory interpretation starting with the initiating date and then analyzing whether commission or conviction is the event which earlier occurred that did or did not precede the second offense trigger date by five years.
I do not find any administrative review standards involved and certainly not any questions of arbitrary or capricious action. The statute either is or is not misapplied as a matter of law and the action taken by the department is consequently valid or invalid. The review by this court is plenary. Nielsen v. State ex rel. Wyoming Workers' Compensation Div., 806 P.2d 297 (Wyo. 1991); Union Pacific R. Co. v. Wyoming State Bd. of Equalization, 802 P.2d 856 (Wyo. 1990). For a plenary appellate review status without deference, see the discussion of Justice Blackmun in Salve Regina College v. Russell, ___ U.S. ___, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). Reading the statute as written, the defined event for the previous offense to be computed is the date of the offense and not some future time when the conviction occurs, as would be in this case, about one and half years later.
A careful examination of the text of the statute reveals that in W.S. 31-7-128(b)(ii) (June 1989) for the prior offense the word convicted in the second line defines status and does not establish a date. The provision does not provide a date of conviction, a noun, but rather a past tense verb, convicted, with the subject thereof being a statutory offense defined by W.S. 31-5-233. Consequently the offense "under W.S. 31-5-233" establishes the event which is driving-while-under-the-influence. The verb relates to the status of the event and does not define its date. This section would more simplistically be understood in accord with the terms used if the sentence was restructured to relate to an offense under the cited statute for which the defendant was convicted. Otherwise, to interpret the provision as this majority would do and as the department earlier attempted, we restructure to add a different subject; namely, date of conviction, as the terminology of the interpretation.
By reading the statutory text to find that the initial event was the offense "for which he was convicted" and not the date he was convicted, I would find that the department as a matter of law was in error and this majority continues the same error as amplified by application of the wrong standard of review and acceptance of that erroneous statutory interpretation.
I would reverse.
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