Fourth DUI in Ten Years – When does a DUI become a felony under Wyoming law?

Source: perpetual.fostering, CC BY 2.0 https://creativecommons.org/licenses/by/2.0, via Wikimedia Commons

Under Wyoming law, most of the time a DUI offense will be a misdemeanor, punishable by less than one (1) year in jail. However, sometimes a person’s criminal history will “enhance” the possible punishment for an ordinary DUI from a misdemeanor to a felony. In particular, if a person is being charged with a fourth or subsequent DUI offense within ten (10) years, the offense is a felony. See Wyo. Stat. Ann. § 31-5-233(e). The trouble is — how do you count prior DUIs? And how do you fight or disprove the State’s DUI count?

Enter Rhoads v. State, 2018 WY 143, 431 P.3d 1130 (Wyo. 2018). Full opinion here:

On December 18, 2018, the Wyoming Supreme Court attempted to clarify an otherwise clumsy statute about DUI enhancement. It recited the relevant statutory language as follows:

Wyo. Stat. Ann. § 31-5-233(e) describes what constitutes a second and third offense DWUI, then uses different language to describe what constitutes a fourth offense:

On a second offense resulting in a conviction within ten (10) years after a conviction for a violation of this section . . . [the defendant] shall be punished by imprisonment for not less than seven (7) days nor more than six (6) months . . . .

On a third offense resulting in a conviction within ten (10) years after a conviction for a violation of this section . . . [the defendant] shall be punished by imprisonment for not less than thirty (30) days nor more than six (6) months . . . .

On a fourth offense resulting in a conviction or subsequent conviction within ten (10) years for a violation of this section . . . [the defendant] shall be guilty of a felony.

Rhoads, ¶ 10, 431 P.3d at 1133

It reasoned that the felony enhancement language was ambiguous as it could be read to mean the “lookback” period included ten years from the date of the first violation or ten years from the date of the first conviction. See Rhoads, ¶ 11, 431 P.3d at 1133. Thus, the Wyoming Supreme Court took the time to clear up the mess and provide a single, final answer. Here’s what it came up with: “The felony enhancement lookback is to the offense and not the conviction.” Id., ¶ 18, 431 P.3d at 1135. In other words, starting from the date of the first DUI arrest, the current offense must represent the fourth or subsequent possible DUI conviction in order to be a felony.

Complicating matters more, the Wyoming Supreme Court further concluded that the “lookback” period for enhanced misdemeanor DUIs is not the same as the “lookback” period for felonies. For enhanced misdemeanors, courts and prosecutors should look back to the dates of conviction, not the dates of violation.

To illustrate, consider this example:

Dave is arrested for his first ever DUI on April 1, 2012. He is convicted on October 1, 2012. He has two other DUI convictions, one in 2015 and another in 2018, both within 10 years of his first.

On April 8, 2022, Dave is arrested for DUI again. Is this a felony DUI?

Answer: No. Dave’s first violation on April 1, 2012, has “fallen off” his felony enhancement record under Rhoads because, for felony DUI, we look back to the date of the violation, not the date of the conviction.

It’s tricky. So, when trying to figure out if your DUI is a felony or enhanced misdemeanor, consult an attorney or read Rhoads very carefully.

My general rule of thumb is this: whatever counting produces the worst possible punishment for you is, unfortunately, probably the correct way to count.

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