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Parsons v. State10/23/2000
uch offenses cannot be called upon to plead in justice's court. See NRS 171.196. However, the justice's court is required to conduct a preliminary examination in such cases. The justice's court's role at a preliminary examination is to make an evidentiary evaluation of whether there is "probable cause to believe that an offense has been committed and that the defendant has committed it." See NRS 171.206. The preliminary examination is not a trial and the issue of the defendant's guilt or innocence is not a matter before the court. State of Nevada v. Justice Court, 112 Nev. 803, 806, 919 P.2d 401, 402 (1996). At the conclusion of the preliminary examination, the justice's court must either bind the defendant over to district court or discharge the defendant. See NRS 171.206.
A person who violates the provisions of NRS 484.379 is guilty of a category B felony where the violation is " or a third or subsequent offense within 7 years." NRS 484.3792(1)(c). As such, a charge of felony driving under the influence in violation of NRS 484.379 and NRS 484.3792(1)(c) may not be tried in justice's court. The justice's court's role is solely to conduct a preliminary hearing and determine whether there is probable cause to find that an offense has been committed and that the defendant has committed it. In Parsons I, we stated in dictum:
It was within the discretion of the justice court to consider the constitutional sufficiency of the priors only in the context of making an evidentiary determination of whether or not probable cause existed to bind Parsons over on the felony charge. When the justice court determined that a prior conviction was infirm on constitutional grounds, and that the felony charge accordingly could not stand, the only order that the justice court was jurisdictionally empowered to enter was a dismissal of the felony charge. 110 Nev. at 1244, 885 P.2d at 1320.
Upon further review and consideration, we have determined that this dicta in Parsons I is unsound to the extent that it suggests that the constitutional validity of the prior convictions is part of the probable cause determination.
We first conclude that the constitutional validity of a prior DUI conviction need not be part of the probable cause determination because the prior convictions are not elements of a charge of driving under the influence . In Koenig v. State, 99 Nev. 780, 672 P.2d 37 (1983), we held that a prior version of the DUI statute merely provided for enhancement of penalty for subsequent convictions of the same or a similar offense and did not set forth a separate felony offense specifying prior convictions as separate elements. The DUI statutes were amended in 1983, with the offense and sentencing provisions being separated into different statutes--NRS 484.379 and NRS 484.3792. See 1983 Nev. Stat., ch. 426, §§ 8, 10, at 1068-72. Although this amendment was not at issue in Koenig, we observed that it "is specific in its provisions that prior convictions are to be used for enhancement of penalty" and supported our conclusion that even under the pre-amendment version, the legislature intended the prior convictions to be used for enhancement and not as elements of the offense. Id. at 784 n.3, 672 P.2d at 40 n.3; see also NRS 484.3792(2) (providing that facts concerning prior convictions "must not be read to the jury or proved at trial but must be proved at the time of sentencing"). Thus, the prior convictions are not themselves elements of a felony charge of driving under the influence in violation of NRS 484.379. As such, an evidentiary evaluation of the prior convictions is not necessary to determine whether the offense has been committed for purposes of a probable cause determination.
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