Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 64126-3
Title of Case: State Of Washington, Respondent V. Donald H. Cochrane, Appellant
File Date: 01/10/2011
SOURCE OF APPEAL
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Appeal from King County Superior Court
Docket No: 09-1-00664-1
Judgment or order under review
Date filed: 09/08/2009
Judge signing: Honorable Catherine D Shaffer
JUDGES
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Authored by Ann Schindler
Concurring: Mary Kay Becker
Linda Lau
COUNSEL OF RECORD
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Counsel for Appellant(s)
Washington Appellate Project
Attorney at Law
1511 Third Avenue
Suite 701
Seattle, WA, 98101
Vanessa Mi-jo Lee
Attorney at Law
1511 3rd Ave Ste 701
Seattle, WA, 98101-3647
Counsel for Respondent(s)
Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA, 98104
Ann Marie Summers
King County Prosecutor's Office
516 3rd Ave Ste W554
Seattle, WA, 98104-2362
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
State of Washington, ) No. 64126-3-I
)
Respondent, )
v. ) ORDER GRANTING MOTION
) TO PUBLISH
Donald H. Cochrane, )
)
Appellant. )
________________________________)
The respondent State of Washington filed a motion to publish the opinion filed
on January 10, 2011 in the above case. A majority of the panel has determined that
the motion should be granted;
Now, therefore, it is hereby
ORDERED that respondent's motion to publish the opinion is granted.
DATED this ____ day of __________________, 2011.
FOR THE COURT:
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No. 64126-3-I/2
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
State of Washington, ) No. 64126-3-I
)
Respondent, ) DIVISION ONE
v. )
)
Donald H. Cochrane, ) UNPUBLISHED OPINION
)
Appellant. )
________________________________) FILED: January 10, 2011
Schindler, J. -- Under RCW 46.61.502(6), driving under the influence (DUI) is
elevated from a gross misdemeanor to a felony if the defendant has "four or more prior
offenses within ten years as defined in RCW 46.61.5055." In State v. Chambers, 157
Wn. App. 465, 237 P.3d 352 (2010), we held that while the fact that a person has four
prior DUI offenses is an essential element of the crime of felony DUI under RCW
46.61.502(6), the question of whether a prior offense meets the statutory definition
under RCW 46.61.5055 is a threshold question of law to be decided by the court.
Donald Cochrane seeks reversal of his felony DUI conviction arguing the
information was constitutionally inadequate, two of the prior DUI convictions do not
meet the statutory definition, and insufficient evidence supports the conviction for
felony DUI. The State concedes that because the information did not allege the
essential statutory element that Cochrane has four prior DUI offenses "within ten
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No. 64126-3-I/3
years," Cochrane is entitled to dismissal, but argues the remedy is dismissal without
prejudice. The State also asserts that by failing to object below, Cochrane waived his
right to challenge the validity of the two prior convictions and sufficient evidence
supports the felony DUI conviction. We accept the State's concession, and hold that
under State v. Vangerpen, 125 Wn.2d 782, 888 P.2d 1177 (1995), Cochrane is entitled
to dismissal without prejudice to the right of the State to recharge and retry him. We
also conclude Cochrane waived his right to challenge two of his prior DUI convictions
for the first time on appeal, but in any event, the record supports his conviction for
felony DUI.
FACTS
On January 9, 2009, a Seattle police officer observed a driver nearly hit a
parked car and swerve over the center line three different times. When the officer
attempted to pull the car over, the driver sped away at a high rate of speed. The driver,
Donald Cochrane, was eventually stopped and arrested for DUI. The blood test
showed Cochrane had a blood/alcohol concentration of 0.25, well in excess of the 0.08
limit.
The State charged Cochrane with felony DUI, count I, and failure to obey a
police officer, count II. As to the charge of felony DUI, the State alleged:
That the defendant DONALD HARER COCHRANE in King County,
Washington, on or about January 9, 2009, drove a vehicle within this
state and while driving had an amount of alcohol in his body sufficient to
cause a measurement of his blood to register 0.08 percent or more by
weight of alcohol within two hours after driving, as shown by analysis of
the person's blood; while under the influence of or affected by intoxicating
liquor or any drug; while under the combined influence of or affected by
intoxicating liquor and any drug; having at least four prior offenses, as
defined under RCW 46.61.5055(13)(a);
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Contrary to RCW 46.61.502 and 46.61.5055, and against the
peace and dignity of the State of Washington.
Cochrane waived his right to a jury trial. The State presented the testimony of
the arresting officers, the police in-car video, and expert testimony regarding the
toxicology analysis. The State also introduced certified copies of court dockets to
prove that Cochrane had four prior DUI convictions within ten years: (1) a February 21,
2001 conviction in King County District Court for a May 30, 1999 DUI, listing RCW
46.61.502 as the basis for the conviction, (2) a February 20, 2001 conviction in Seattle
Municipal Court for "physical control while intoxicated" on November 24, 1999, listing
Seattle Municipal Code (SMC) 11.56.020(B) as the basis for the conviction, (3) a July
12, 2000 conviction in Everett Municipal Court for a DUI arrest on June 15, 2000, listing
RCW 46.61.502 as the basis for the conviction, and (4) an April 13, 2006 conviction in
Seattle Municipal Court for a DUI arrest on May 11, 2002, listing SMC 11.56.020 as the
basis for the conviction. In addition, the State introduced a "Stipulation on Prior Record
and Offender Score" that Cochrane entered into as part of a plea agreement in April
2008. In the stipulation, Cochrane agrees his prior criminal history is correct and that
he is "the person named in the convictions." The stipulation lists a number of prior
convictions including the four prior DUI convictions introduced into evidence at trial.
The defense objected to admission of the court dockets for the four prior DUI
convictions on hearsay grounds and in violation of his right to confrontation under
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The
court overruled the objections, and admitted the certified copies of the court dockets as
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business records and as self-authenticating documents. The court also notes:
The dockets are simply evidence of a conviction, as a judgment and
sentence is evidence of a conviction, and that's all purposes the court is
taking it for is proof that, in fact, the defendant has prior convictions for
qualifying offenses.
During closing argument, defense counsel argued for the first time that the
information did not contain the essential statutory elements for felony DUI, and the
charges should be dismissed. Defense counsel asserted that the information did not
include the mandatory statutory language of "within ten years," and did not specify the
dates for the four prior DUI convictions. Defense counsel also argued that the
information cited the wrong section of the statute defining a prior offense.1
The court denied Cochrane's motion to dismiss the charges. The court ruled
that whether the four prior convictions occurred "within ten years" and the dates of the
prior convictions are not essential elements of the crime of felony DUI that the State
must allege in the information. The court also ruled that the incorrect citation to the
statute defining a prior offense was a scrivener's error and did not prejudice Cochrane.
Because Cochrane "had been convicted of four prior DUI or Physical Control
crimes within ten years," the court found Cochrane guilty of felony DUI.2 Cochrane
appeals his felony DUI conviction.3
ANALYSIS
Cochrane argues he is entitled to dismissal of the felony DUI conviction because
the information did not allege that the four prior DUI convictions occurred "within ten
1 As amended, prior subsection 13 defining "prior offense" is renumbered as subsection 14. Laws of
2008, ch. 282, § 14.
2 The court imposed a concurrent standard range sentence of 60 months.
3 The court also found Cochrane guilty of failing to obey a police officer. Cochrane did not appeal that
conviction.
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No. 64126-3-I/6
years," and the information did not specifically identify the four prior convictions.
The State concedes that alleging the four prior DUI convictions occurred within
ten years is an essential statutory element that the State must allege and prove beyond
a reasonable doubt. But the State argues that specifically identifying the four prior DUI
convictions is not an essential element of the crime that it must allege in the
information.
The accused in a criminal case must be informed of the nature and cause of the
accusation against him, and cannot be tried for an offense for which he has not been
charged. U.S. Const. amend. VI; Wash. Const. art. I § 22; Vangerpen, 125 Wn.2d at
787. A charging document is constitutionally adequate only if all the essential elements
of a crime are included in the charging document. Vangerpen, 125 Wn.2d at 787.
Because Cochrane argued the information was constitutionally inadequate
before the verdict, we must strictly construe the language in the information. State v.
Johnson, 119 Wn.2d 143, 149-50, 829 P.2d 1078 (1992).
The State concedes that the information omitted an essential element of the
crime as defined by the legislature in RCW 46.61.502(6) by failing to allege that the
four prior DUI offenses occurred "within ten years." We accept the State's concession.
Under RCW 46.61.502(6), a gross misdemeanor DUI is elevated to a felony if
the defendant has four prior DUI convictions within ten years. RCW 46.61.502(6)
provides,
in pertinent part:
It is a class C felony punishable under chapter 9.94A RCW, or chapter
13.40 RCW if the person is a juvenile, if: (a) The person has four or more
prior offenses within ten years as defined in RCW 46.61.5055.
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No. 64126-3-I/7
RCW 46.61.5055(14)(c) addresses the meaning of "within ten years" under
RCW 46.61.502. RCW 46.61.5055(14)(c) states, "[T]he arrest for a prior offense
occurred within ten years of the arrest for the current offense."
RCW 46.61.5055(14) also defines "prior offense" for purposes of a prior DUI
offense under RCW 46.61.502(6). RCW 46.61.5055(14)(a) lists the statutory violations
that meet the definition of prior offense. RCW 46.61.5055(14)(a) provides, in pertinent
part:
For purposes of this section and RCW 46.61.502 [DUI] and 46.61.504
[physical control of vehicle under the influence]:
(a) A "prior offense" means any of the following:
(i) A conviction for a violation of RCW 46.61.502 or an equivalent
local ordinance;
(ii) A conviction for a violation of RCW 46.61.504 or an equivalent
local ordinance.
Cochrane contends that the specifics of the four prior convictions are also an
essential element that the State must allege in the information. We disagree.
The legislature defines the elements of a crime. State v. Williams, 162 Wn.2d
177, 183, 170 P.3d 30 (2007). The statutory definition of felony DUI does not require
the State to allege the specific details of the prior DUI offenses as an essential element
of the crime. State v. Roswell, 165 Wn.2d 186, 192, 196 P.3d 705 (2008). While the
existence of the four prior DUI offenses as defined by the statute is an essential
element of the crime that must be proved beyond a reasonable doubt, providing the
specific details of each of these offenses is not an essential statutory element that must
be alleged in the information. RCW 46.61.502(6); Chambers, 157 Wn. App. at 477.4
4 Cochrane also argues that the information was constitutionally inadequate because it cited the
wrong section of the statute to define what prior offenses qualify. Error in a numerical statutory citation is
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No. 64126-3-I/8
Cochrane asserts that because the information omitted the essential element of
"within ten years," the remedy is to reverse and direct the trial court to enter judgment
for a misdemeanor DUI. The State contends the remedy is dismissal without prejudice.
Vangerpen controls the question of whether dismissal of the felony DUI charges
against
not reversible unless it prejudiced the accused. Vangerpen, 125 Wn.2d at 787-88, 790 ("Convictions
based on charging documents which contain only technical defects . . . usually need not be reversed.").
Further, Cochrane does not claim prejudice from the incorrect citation.
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No. 64126-3-I/9
Cochrane is with or without prejudice.
In Vangerpen, the State charged the defendant with attempted murder in the first
degree, but inadvertently omitted the statutory element of premeditation. Vangerpen,
125 Wn.2d at 784-85. After the State rested, the defense made a motion to dismiss for
lack of evidence of premeditation. The trial court denied the motion, finding there was
sufficient evidence of premeditation. Vangerpen, 125 Wn.2d at 785. The defense then
moved to dismiss because the information did not allege premeditation. The trial court
denied the motion and allowed the State to amend. The jury found the defendant guilty
of attempted murder in the first degree. Vangerpen, 125 Wn.2d at 785-86.
The Washington Supreme Court reversed the conviction because the charging
document was constitutionally inadequate. The court held that "[w]hen a conviction is
reversed due to an insufficient charging document, the result is a dismissal of charges
without prejudice to the right of the State to recharge and retry" the defendant.
Vangerpen, 125 Wn.2d at 791. "[T]he remedy for an insufficient [information] is
reversal
and dismissal of charges without prejudice to the State's ability to refile charges."
Vangerpen, 125 Wn.2d at 792-93; see State v. Nonog, 169 Wn.2d, 220, 226 n.3, 237
P.3d 250 (2010); State v. Quismundo, 164 Wn.2d 499, 503-04, 192 P.3d 342 (2008).5
Here, as in Vangerpen, we conclude that the remedy is dismissal without prejudice to
the right of the State to recharge and retry Cochrane.
Cochrane also argues that insufficient evidence supports his conviction of felony
5 Cochrane cites to State v. Sanders, 65 Wn. App. 28, 827 P.2d 354 (1992). But the Washington
Supreme Court in Vangerpen specifically rejected the applicability of Sanders in determining that the proper
remedy for a deficient information is reversal and remand to enter a verdict for the lesser charge. Vangerpen,
125 Wn.2d at 792.
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No. 64126-3-I/10
DUI because the State did not prove beyond a reasonable doubt that the four prior DUI
convictions meet the definition under RCW 46.61.5055(14)(a). Cochrane concedes
that two of his prior DUI convictions meet the definition under RCW 46.61.5055(14)(a).
For the first time on appeal, Cochrane argues that the State did not prove that the two
other prior Seattle Municipal Court DUI convictions meet the definition under RCW
46.61.5055(14)(a).
In Chambers, we held that the question of whether a prior conviction qualifies as
a predicate offense is a threshold question of law for the court, and not an essential
element of the crime of felony DUI. Chambers, 157 Wn. App. at 479. Accordingly,
whether a violation of a local ordinance is comparable or equivalent to a DUI offense
under RCW Chapter 46.61 is a threshold question of law, and not an essential element
that the State must prove at trial. Chambers, 157 Wn. App. at 479.6
Below, Cochrane did not claim that the two prior Seattle Municipal Court
convictions do not meet the statutory definition of a prior offense. Cochrane objected to
admissibility of the certified copies of the dockets for the prior DUI convictions on
hearsay and confrontation grounds. And when the trial court clarified that the dockets
were being admitted for proof of whether "the defendant has prior convictions for
qualifying offenses," Cochrane did not object or argue that the two Seattle Municipal
Court convictions do not meet the statutory definition. We conclude Cochrane waived
his right to object to the admissibility of the dockets establishing those convictions for
the first time on appeal. See State v. Gray, 134 Wn. App. 547, 557-58, 138 P.3d 1123
6 While Cochrane's stipulation to his criminal history establishes the existence of the four prior
convictions, it does not establish that those convictions meet the definition of RCW 46.61.5055(14)(a).
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No. 64126-3-I/11
(2006) (holding that the defendant waived his objection to the admissibility of the
Seattle Municipal Court judgment and sentence by failing to timely object on specific
grounds). Nonetheless, the record supports the conclusion that the two prior Seattle
Municipal Court DUI convictions qualify under RCW 46.61.5055(14)(a) as "an
equivalent local ordinance."
The court docket for the February 20, 2001 conviction in Seattle Municipal Court
for physical control while intoxicated, lists SMC 11.56.020(B) as the statutory basis for
the conviction. The language of SMC 11.56.020(B) ("Physical Control") is virtually
identical to RCW 46.61.504, the physical control statute. The court docket for the April
13, 2006 conviction in Seattle Municipal Court lists SMC 11.56.020 as the statutory
basis for the conviction of "driving while intoxicated." The language of SMC
11.56.020(A) ("Driving While Intoxicated") is also virtually identical to the language of
the DUI statute, RCW 46.61.502.
The trial court found that the State proved beyond a reasonable doubt the
existence of the four prior DUI convictions within ten years. The court expressly found
that "[o]n the date of this crime, the defendant had been convicted of four prior DUI or
Physical Control crimes within ten years." The court dockets establish the date of
arrest, the date of conviction, and the statutory basis for the conviction. The dockets
also support the conclusion that all four prior DUI offenses occurred within ten years of
his arrest for the current offense for felony DUI. RCW 46.61.5055(14)(c).7 The record
supports Cochrane's conviction for felony DUI.
7 While the stipulation admitted into evidence establishes the existence of the four prior DUI offenses,
the trial court found the court dockets establish that Cochrane's four prior DUI convictions met the statutory
definition, "the defendant has prior convictions for qualifying offenses."
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We reverse Cochrane's conviction for felony DUI, but without prejudice to the
State's right to recharge and retry him for felony DUI.
WE CONCUR:
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