State v. Bever , 118 Idaho 80 ( 1990 )

McDEVITT, Justice.

On April 21, 1984, Bruce Bever was charged with a violation of I.C. § 18-8004, the DUI statute. He was convicted on May 8,1984. He was again charged for DUI on March 4, 1985. He was convicted on July 10, 1985. Finally, he was charged for the DUI that gives rise to this appeal on March 29, 1989. Under the assumption that three DUI violations rather than three DUI convictions were required to bring the statute’s multiple offender enhanced penalty provisions into operation, the prosecutor charged Bever with a felony under I.C. § 18-8005(3).

Bever was bound over to the district court on that charge, and the prosecutor filed an Information for felony driving under the influence of alcohol on May 11, 1989. Bever filed a motion to dismiss the information, arguing that the court lacked jurisdiction to hear the felony because Bever’s third conviction did not take place within five years of his first conviction for DUI. The district court denied the motion.

Bever now appears before the Idaho Supreme Court pursuant to its grant of permission to file an interlocutory appeal.

The issue before this Court is whether I.C. § 18-8005(3) requires three violations of I.C. § 18-8004, or whether the defendant must be actually convicted of or plead guilty to three violations of I.C. § 18-8004 within five years before a person may be charged under I.C. § 18-8005(3).

IDAHO CODE § 18-8005(3) REQUIRES THREE DUI CONVICTIONS WITHIN FIVE YEARS

Idaho Code § 18-8005(3) states that: “Any person who pleads guilty to or is found guilty of three (3) or more violations of the provisions of section 18-8004, Idaho Code ..., within five (5) years, notwithstanding the form of the judgments) or withheld judgments), shall be guilty of a felony; ...”

The drafters of this statute could have rendered far more certain the expression of their intent. The ambiguity forces this Court to engage in construction of the above quoted sentence. “In the interpretation of a statute the court’s only concern is to ascertain and give effect to the legislative intent as expressed, irrespective of the wisdom, practicability, policy, expediency or possible results.” State v. Bunting Tractor Co., 58 Idaho 617, 623, 77 P.2d 464, 466 (1938).

The State cites Maguire v. Yanke, 99 Idaho 829, 836, 590 P.2d 85, 92 (1978), for the proposition that “[i]t is a general rule of statutory construction that courts should not nullify a statute or deprive a law of potency or force unless such course is absolutely necessary,” and argues that Bever’s interpretation of the statute would cause abuse of the criminal justice system by providing an incentive for defendants to delay court procedures, citing Hiler v. Municipality of Anchorage, 781 P.2d 24, 25-26 (Alaska App.1989).

The State also argues that construction of the statute mandates a decision in its favor. Former I.C. § 49-1102A, the statute in effect prior to the adoption of the current version of I.C. § 18-8005(3), read as follows:

(3) Any person who pleads guilty to or is found guilty of a violation of section 49-1102 [the D.U.I. statute] ..., for a third time within five (5) years ... shall be guilty of a felony____

1983 Idaho Sess. Laws, ch. 145, p. 378-79.

The State urges that this provision clearly provided that three convictions needed to occur within the five year period, and that the recent amendments were intended to change the focus of the statute from convictions to violations.

Comparing the provision of I.C. § 49-1102A with I.C. § 18-8005(3) we cannot reach the conclusion urged by the State that the legislature intended to change the controlling event from conviction (or guilty plea) to violation.

Idaho Code § 18-8005(4), adopted in 1984, along with the current version of I.C. § 18-8005(3), provides:

(4) For the purposes of paragraphs (2) and (3) of this section, convictions of violation of the provisions of section 49-1102, Idaho Code, shall be considered by the court to determine if a later conviction is a second or subsequent conviction only if such convictions were of violations committed on or after July 1, 1983.

In this subsection, the legislature clearly identifies determination of guilt to be the event to be considered by the court in determining the application of I.C. § 18-8005(3).

We are required to read the statute I.C. § 18-8005 in its entirety and to interpret it so as to give meaning to all of its provisions. Moss v. Bjornson, 115 Idaho 165, 765 P.2d 676 (1988); Smith v. Dept. of Employment, 100 Idaho 520, 602 P.2d 18 (1979); Smallwood v. Jeter, 42 Idaho 169, 244 P. 149 (1926).

In reviewing I.C. § 18-8005 in its entirety we conclude that I.C. § 18-8005(3) must be read to proscribe three guilty pleas or findings of guilt within a five year period.

The State also argues that I.C. § 18-8005(3) is actually a statute of limitation on the State’s power to bring a felony action for three violations of I.C. § 18-8004. This argument is incorrect. Idaho Code § 18-8005(3) enunciates the requirements for a felony. It is completely silent as to the time within which the prosecution must bring charges.

For the foregoing reasons the district court’s denial of Bever’s motion to dismiss the charge that he violated I.C. § 18-8005(3) is reversed.

No costs on appeal.

BAKES, C.J., and JOHNSON and BOYLE, JJ., concur.