During a Washington criminal sentencing proceeding, an offender generally cannot challenge the constitutional validity of a previous conviction. If, however, a conviction that is “constitutionally invalid on its face,” the court cannot consider it during sentencing. A Washington appeals court recently considered whether a defendant’s prior conviction was facially invalid under the merger doctrine.
The merger doctrine applies when the state has to prove the occurrence of an act that is defined as a separate crime to prove a particular degree of the charged crime. In such circumstances, the crimes “merge.” The merger doctrine does not apply if the legislature intended to allow multiple punishments.
If the legislature did not clearly intend to allow multiple punishment for the same act under different laws, the court determines its intent through application of the same evidence test, merger, and the independent purpose test.
In this case, the defendant had previously pleaded guilty to both misdemeanor DUI and vehicular assault pursuant to RCW 46.61.522(1)(b) based on a single incident in which the defendant crashed into another vehicle while under the influence of alcohol.
In 2021, he pleaded guilty to felony DUI. The state argued both of the prior convictions should be counted in his offender score at sentencing because they had different victims and occurred at different times.
The defendant argued the convictions were based on the “same criminal conduct” because they occurred at the same time, with the same victim and same criminal intent. He argued in the alternative that the two convictions constituted a violation of double jeopardy.
The trial court allowed both convictions to count toward the offender score. The trial judge acknowledged that he did not know if a defendant could be convicted of both DUI and vehicular assault under the DUI prong at the same time, but could not rule that it was not allowed.
The defendant appealed the offender score calculation and the imposition of DUI assessments and an annual collection fee. He argued the two convictions were facially invalid as a violation of double jeopardy under the merger doctrine. Therefore, he argued that the inclusion of both convictions in his offender score resulted in an incorrect calculation.
The appeals court applied the same evidence test and considered whether each crime contained an element unique from the other crime. If so, the crimes are not considered the same for purposes of double jeopardy. The appeals court determined that vehicular assault requires the state to prove substantial bodily harm to another, which is not required to prove DUI.
If the degree of one crime is raised by conduct constituting the other crime, however, the merger doctrine provides that the court assumes legislative intent to punish them both through the sentence for the greater crime.
The appeals court noted the state had to prove the defendant was driving under the influence to prove he was guilty of vehicular assault. The state did not offer evidence to show the legislature intended cumulative punishment for the two crimes. The appeals court concluded the misdemeanor DUI should have merged with the vehicular assault charge. The appeals court further concluded the DUI conviction was constitutionally invalid on its face. The DUI conviction should not have been included in the offender score.
The state argued the defendant waived his double jeopardy right with his the plea agreement for the prior convictions. The appeals court rejected this argument, noting that it is “well settled” that a plea bargain does not waive double jeopardy. The appeals court also noted, however, that a waiver of double jeopardy was irrelevant because the issue was merger.
The state also argued merger did not apply because the crimes had independent purposes or effects. According to the independent purposes or effects doctrine, two offenses may be separate even if they appear to be the same under the other tests if there is a separate injury to a person or property that is separate and distinct from the crime of which it forms an element. This is a fact-based test.
The state argued the vehicular assault statute has a purpose of holding offenders accountable for causing injury and the DUI statute is intended to reduce the danger of drunk driving.
The appeals court noted, however that courts have ordered restitution of medical expenses in DUI sentences. The court considered previous causes involving first degree assault and first degree robbery, noting that the court had held that the charges did not have independent purposes or effects in a case in which the defendant shot the victim and then robbed him. State v. Freeman. The conclusion was different, however, in a case where he defendant first robbed the victim, then struck them. In that case, there was a separate injury and intent that supported a separate conviction for assault. State v. Prater.
The court concluded the prior charges in this case were analogous to those in Freeman. The defendant crashed into the victim’s car while driving under the influence. There was nothing indicating the crash and DUI were “separate and distinct.” The court concluded that, in fact, the crash was incidental to the DUI. The independent purposes or effects doctrine did not apply.
The appeals court held the trial court erred in adding a point to the defendant’s offender score for the prior misdemeanor DUI because it should have merged with the vehicular assault conviction. The appeals court reversed and remanded the case to the trial court to be resentenced.
This case shows the potential long-lasting effects of DUI-related convictions. If you are facing criminal charges, an experienced Seattle DUI attorney can fight to protect your rights. Schedule a consultation with Blair & Kim, PLLC, at (206) 622-6562 to discuss your case.