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STATE v. PARKER9/27/1996
int, for instance, to § 13A-6-4, Ala. Code 1975, Alabama's statute defining criminally negligent homicide. Subsection (c) of that statute provides: "Criminally negligent homicide is a Class A misdemeanor, except in cases in which said criminally negligent homicide is caused by a driver of a motor vehicle who is driving in violation of Section 32-5A-191; in such cases criminally negligent homicide is a Class C felony." Although subsection (c) of § 13A-6-4 provides that criminally negligent "is a Class C felony" where a defendant was also violating the DUI statute — as opposed to providing that criminally negligent homicide "shall be punished as a Class C felony" — this court has held that subsection (c) is a sentence enhancement provision, which does not involve a question of proof to the jury. Crauswell v. State, 638 So.2d 11, 15 (Ala. Cr.App. 1993). Similarly, I do not find the fact that subsection (f) of § 13-5A-191 states that the defendant shall be "guilty" of a Class C felony upon conviction to require the conclusion that subsection (f) is a substantive offense and not a sentence enhancement provision.
Subsections (d) and (e) of § 32-5A-191 predate subsection (f) by a number of years. Significantly, the cases reported prior to the enactment of subsection (f), which was added in 1994, consistently recognized subsections (d) and (e), apparently without controversy, as sentence enhancement provisions. See Bilbrey v. State, 531 So.2d 27 (Ala.Cr.App. 1987) (a defendant charged with and convicted of violating § 32-5A-191 could, upon the state's proper proof of a prior DUI conviction at sentencing phase, be sentenced according to the enhancement provision of former § 32-5A-191 (d)); Loftin v. City of Montgomery, 480 So.2d 603 (Ala.Cr.App. 1985) ("Loftin I"), and Loftin v. City of Montgomery, 480 So.2d 606 (Ala.Cr.App. 1985) ("Loftin II") (it was properly a matter for the trial court to apply the provisions of former § 32-5A-191 (d) upon proof to the court of the defendant's prior conviction, to enhance the misdemeanor sentence of a defendant found guilty by jury of violating § 32-5A-191). The legislature is presumed to be aware of both the language and the judicial interpretation of pertinent existing law when it enacts legislation. Sheffield v. State, 708 So.2d 899 (Ala.Cr. App. 1997), citing In re Haas, 48 F.3d 1153 (11th Cir. 1995). Therefore, when the legislature added subsection (f) to § 32-5A-191, it was presumably aware of the construction
of subsections (d) and (e) given by the courts. Had the legislature intended for subsection (f) to be a new substantive offense and not a sentence enhancement provision, surely it would have taken greater pains to word subsection (f) differently than subsections (d) and (e). In any event, I believe that the language of subsection (f) speaks for itself and clearly expresses a legislative intent that the subsection is a sentence enhancement provision.
A contrary construction, one deeming subsection (f) to be a separate offense that includes a defendant's prior DUI convictions as an element, is inherently problematic. This court has interpreted the "five-year period" referred to in subsection (f) — and in subsections (d) and (e) — to run from the date of a defendant's prior convictions to the date of the defendant's conviction in the charged case, as opposed to the date on which the present offense occurred. State v. Brooks, 701 So.2d 56 (Ala.Cr.App. 1996); Loftin II, 480 So.2d at 607. Although this court has recognized that such an interpretation may have undesirable consequences (see Brooks, 701 So.2d at 68 n. 1, recognizing that a defendant may be encouraged to engage in deliberately dilatory practices so as to delay conviction in the charged case a
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