State v. Wainwright , 2013 Vt. 120 ( 2013 )

Skoglund, J.,

¶ 13. dissenting. The State here asserts, and the majority essentially agrees, that the same prior DUI conviction may be used both to criminalize a refusal to submit to an evidentiary test under 23 V.S.A. § 1201(b) and to enhance the penalty for that offense because the statute does not specifically prohibit it. I respectfully disagree. The argument overlooks the plain fact that the Legislature has deliberately defined a number of individual DUI offenses under § 1201, in.1uding that of refusal to submit to an alcohol test after a prior conviction, and has equally plainly defined the pen.1ty for “[a] person who violates section 1201” as a fine of up to $750 or imprisonment for not more than two years, or both. 23 V.S.A. § 1210(b). If — as the State contends — every violation of § 1201(b) were, in effect, a second offense, it would simply eviscerate the pen.1ty expressly prescribed by the Legislature for first violations of § 1201, in.1uding § 1201(b). It is axiomatic, however, that we must construe legislation to avoid rendering any portions thereof superfluous. See In re Lunde, 166 Vt. 167, 171, 688 A.2d 1312, 1315 (1997) (“Generally, we do not construe a statute in a way that renders a significant part of it pure surplusage.” (quotation omitted)). The statutory scheme as a whole, therefore, refutes reliance on the same prior conviction both to crimin.1ize a refusal under § 1201(b) and to enhance the pen.1ty for the violation.

¶ 14. This construction finds addition.1 support in the language of § 1201(d), which prohibits driving with a blood alcohol concentration of “0.02 or more if the person has previously been convicted of a second or subsequent violation of subsection (a), (b), or (c) of this section within the preceding three years and the person’s alcohol concentration for the second or subsequent violation was proven to be 0.16 or greater.” 23 V.S.A. § 1201(d)(2). The same section goes on to provide that “[a] violation of this subsection shall be considered a third or subsequent violation of this section and shall be subject to the penalties of subsection 1201(d) of this title.” Id. The Legislature has thus shown itself to be fully capable of stating when a prior conviction which forms an essential element of a § 1201 violation may also be used as a penalty enhancement. See Daniels v. Vt. Ctr. for Crime Victims Servs., 173 Vt. 521, 523, 790 A.2d 376, 379 (2001) (mem.) (observing that “[w]here the Legislature has demonstrated that it knows how to provide explicitly” for certain action “we are reluctant to imply such an action without legislative authority”).

¶ 15. We must be cognizant, as well, of the general “rule of lenity,” which directs that “any doubts created by ambiguous legislation be resolved in favor of the defendant.” State v. Goodhue, 2003 VT 85, ¶ 21, 175 Vt. 457, 833 A.2d 861; see also State v. Oliver, 151 Vt. 626, 629, 563 A.2d 1002, 1004 (1989) (“Penal statutes . . . are to be strictly construed in a manner favorable to the accused.”). To the extent, therefore, that the statute could even arguably be construed to permit the enhancement of a sentence with the same prior conviction that criminalizes the offense, the issue must nevertheless be resolved in favor of defendants absent a clear statement to that effect in the legislation.

¶ 16. Although the question of legislative intent is necessarily Vermont-specific, a number of decisions from other jurisdictions do provide useful guidance. In State v. King, for example, the question was “whether the state can use the prior felony conviction required to convict a convicted felon for being in possession of a firearm, and then use the same prior conviction to enhance the sentence.” 313 S.E.2d 144, 144 (Ga. Ct. App. 1984). The court con.1uded that the legislature did not intend such dual use, reasoning that “[i]f the General Assembly intended that repeat offender punishment . . . applied to possession of a firearm by a convicted felon, then every conviction for that offense could result in a minimum punishment of five years, thus rendering the authorized punishment for the offense of one to five years meaningless.” Id. at 144-45. The court relied, as well, on the rule of lenity applicable in criminal matters, observing that “[i]f a statute increasing a pen.1ty is capable of two constructions, it should be construed so as to operate in favor of life and liberty.” Id. at 145 (quotation omitted).

¶ 17. The Illinois Supreme Court employed similar reasoning in People v. Ferguson, 547 N.E.2d 429 (Ill. 1989), where the issue was whether the victim’s age may be considered as a statutory factor in imposing an enhanced sentence where it was also an element of the offense. The court ruled that it could not do so “absent a clear legislative intent to accomplish that result,” reasoning that “in determining the appropriate range of punishment for a criminal offense, the legislature must have necessarily considered the factors inherent in the offense.” Id. at 433. The court also relied on the rule of lenity, noting “that any ambiguity in penal statutes, particularly in the case of enhancement provisions, must be resolved in favor of the defendant.” Id. at 434. Other decisions are to similar effect. See, e.g., Stone v. State, 727 N.E.2d 33, 37 (Ind. Ct. App. 2000) (noting general rule that factor which “comprises a material element of the offense” may not also constitute statutory aggravating factor “to support an enhanced sentence”); Ruth v. State, 1998 OK CR 50, ¶ 3, 966 P.2d 799 (reaffirming rule that “a prior felony cannot be used as both an element of the offense and as punishment enhancement”); Wiltz v. State, 787 S.W.2d 511, 512 (Tex. Ct. App. 1990) (“It is well settled that the State may not use a prior conviction to prove an essential element of the case on trial and also use that same conviction to enhance punishment on the offense being tried”).

¶ 18. The State’s arguments to the contrary are unpersuasive. It observes that this and other courts have “consisten.1y held that reliance on previous convictions both to crimin.1ize conduct and to enhance pen.1ties does not violate the Double Jeopardy Clause.” As noted, however, the issue as framed by the trial court and the parties here turns solely on the question of legislative intent; no constitution.1 claim was raised or briefed by the parties. The State also maintains, and the majority agrees, that disallowing dual use of the prior conviction “leads to an absurd result” by allowing a repeat offender to be punished for a first-offense. The argument again overlooks the fact that it was the Legislature that defined the elements of the offenses set forth in § 1201 and the pen.1ties for each violation thereof. I discern nothing inheren.1y “absurd” in a legislative determination that, before committing the first offense of refusal to submit to an alcohol test, a defendant should have experienced at least one prior DUI conviction. See Judicial Watch, Inc. v. State, 2005 VT 108, ¶ 16, 179 Vt. 214, 892 A.2d 191 (cautioning that the absurd-results doctrine “should be used sparin.1y” lest it lead to the substitution of this Court’s policy judgments for those of the Legislature, and should apply only where judicial construction would produce a result “demonstrably at odds with any conceivable legislative purpose” (quotations omitted)). If the Legislature’s intent were to define a criminal refusal under § 1201(b) as a second offense it could have easily said so, and it retains the prerogative to do so in the future. As it stands, however, the trial court’s construction of the statute as barring use of the same prior conviction to both crimin.1ize and enhance an offense under § 1201(b) was correct. Accordingly, I would affirm the judgments.