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State v. Sola9/18/2003
crime of DWI, fourth offense. See Payne v. State, 327 Ark. 25, 937 S.W.2d 160 (1997). However, this court has made it clear that proof of earlier offenses is not appropriate until the sentencing phase of a DWI trial. We said in Peters v. State, 286 Ark. 421, 425, 692 S.W.2d 243, 245-46 (1985): " e agree the trial should be bifurcated. The jury must first hear evidence of guilt or innocence. If the defendant is found guilty of the instance of DWI alleged, the jury will then hear evidence of previous convictions." We added in a subsequent case:
The prosecution must prove a prior conviction for DWI as an element of the offense of DWI, Second Offense. The prior DWI conviction must be given the status of an element of a subsequent DWI offense because eventually, upon the fourth DWI conviction, the crime charged will change from a misdemeanor to a felony. As stated in Peters, the proof of the prior DWI conviction or convictions must come in the punishment phase of a bifurcated trial to protect a defendant from possible prejudice during the guilt phase.
Hagar v. City of Fort Smith, 317 Ark. 209, 212-13, 877 S.W.2d 908, 909 (1994).
Under Peters and Hagar, the State need not prove a defendant's three other DWI offenses to determine his guilt. Indeed, to do so would be prejudicial to the defendant during the guilt phase of the trial. It is not until the sentencing phase of the trial that the State need show the earlier offenses for purposes of sentencing under § 5-65-111(b)(3) for multiple offenses. Accordingly, the critical point for counting DWI offenses is at the sentencing phase of the DWI case, not the date that the crime was committed. Here, that sentencing date was on September 11, 2002. It was at this time when the circuit should have determined whether the June 14, 2001 offense was the fourth offense to occur within five years of the first offense.
There is one final point. Sola adduces Colburn v. State, 352 Ark. ___, 98 S.W.3d 808 (2003), for the proposition that courts must count prior offenses from the date the offense at issue was committed. In Colburn, the crime was a battering offense and enhancement for sentencing was governed by a different statute than § 5-65-111(b)(3). The battering enhancement statute specifically refers to a "prior offense" of battering for purposes of enhancement. See Ark. Code Ann. § 5-26-305(b)(2) (Supp. 2003); Colburn, 352 Ark. at ___, 98 S.W.3d at 811. There, we looked to the date of the offense in counting prior battering offenses. To emphasize, once more, the DWI statute does not use the language of "prior offenses" as the battering statute does. Rather, § 5-65-111(b)(3) plainly contemplates determining total DWI offenses within five years of the first offense.
Sola argues lack of deterrence of future DWIs, if we embrace the State's interpretation. We give this argument little credence in light of the plain meaning of § 5-65-111(b)(3). We reverse the judgment of the court and remand for further proceedings.
Reversed and remanded.
Thornton, J., not participating.
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