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State v. McCraine5/16/2003
quired an element of proof that the other did not. Among the charges levied against the defendant in Games-Neely were the misdemeanors of DUI and driving with a revoked license. Although Appellant herein faced a felony charge of DUI third offense as well as the misdemeanor of driving revoked for DUI, no double jeopardy issues are implicated which would require a unitary trial because each of the charges requires an element of proof that the other does not.
Despite our finding that the trial court did not abuse its discretion in the case sub judice by denying the severance motion under the controlling legal precedents at the time the ruling was made, any retrial of this offense is subject to application to the new legal principles announced in Games-Neely. Consequently, because the Appellant invoked his statutory right to trial of the misdemeanor charge in magistrate court, the request to remand must be honored by the lower court inasmuch as no double jeopardy problems are implicated.
D. Motion for Judgment of Acquittal of Driving Revoked for DUI Charge
Appellant next claims that the trial court erred by not granting his motion for judgment of acquittal following the close of the State's evidence because no proof was submitted showing that Appellant had actual knowledge that his driving privileges were revoked for DUI. Appellant alleges that this error was compounded when the trial court did not instruct the jury that actual knowledge of license revocation is an essential element of the offense of driving revoked for DUI. Embodied in both purported errors is an issue of first impression for this Court: whether knowledge, actual or otherwise, of the revocation of a driver's license is a necessary element of the offense of driving revoked for DUI. Since this issue necessarily involves "an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
We naturally turn to the language of the statute in question at the inception of our review because "[w]hen a statute is clear and unambiguous and the legislative intent is plain, it is the duty of the courts to apply the statute in accordance with the legislative intent therein clearly expressed." Syl. pt. 7, State v. Bragg, 152 W.Va. 372, 163 S.E.2d 685 (1968).
West Virginia Code § 17B-4-3(b) (1999) (Repl. Vol. 2000) *fn13 defines the offense of driving revoked for DUI as follows:
(b) Any person who drives a motor vehicle on any public highway of this state at a time when his or her privilege to do so has been lawfully revoked for driving under the influence of alcohol, controlled substances or other drugs, or for driving while having an alcoholic concentration in his or her blood of ten hundredths of one percent or more, by weight, or for refusing to take a secondary chemical test of blood alcohol content, is, for the first offense, guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for six months and in addition to the mandatory jail sentence, shall be fined not less than one hundred dollars nor more than five hundred dollars; for the second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for a period of one year and, in addition to the mandatory jail sentence, shall be fined not less than one thousand dollars nor more than three thousand dollars; for the third or any subsequent offense, the person is guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary for not less than one year nor more than three years and, in addition to the mandatory prison sentence, shall be fined not less than three thousand do
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