* State Of Washington, Appellant V. Travis Joshua Bird, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, 	]
Appellant, 	]
No. 71615-8-1
DIVISION ONE
en
cz
1
v. 	t
TRAVIS JOSHUA BIRD, 	]
PUBLISHED OPINION 	-7; ^ i'
Respondent. 	i 	FILED: June 1,2015 cp
Trickey, J. — A charge of driving while under the influence (DUI) may be
elevated to a felony when a defendant has previously been convicted of vehicular
assault while under the influence of alcohol or drugs. 	Here, the defendant had
previously entered an Alford1 plea to vehicular assault under all three alternative
means, including driving while under the influence. 	Moreover, it is clear from the
underlying facts 	in that case that the defendant was under the influence of
alcohol and drugs when his passengerwas injured. 	Accordingly, we reverse the
trial court and remand for further proceedings.
FACTS
In January 2013, Bird was stopped by law enforcement officers for erratic
driving. 	The officers noticed that Travis Bird had slurred speech and red eyes.
Bird 	admitted 	to 	drinking. 	Bird 	performed 	poorly 	on 	field 	sobriety 	tests.
Additionally, a portable breath test showed a sample of .138. 	The officers noted
that Bird had a prior vehicular assault conviction. 	Bird told the officers that he
1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L Ed. 2d 162 (1970).
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 71615-8-1/2
was aware of the conviction and, further, that he was aware that this current
offense would be a felony. 	Bird was arrested and charged with a felony DUI.
The charge was elevated to a felony because of Bird's previous conviction
of vehicular assault in 2009. 	At that time, Bird entered an Alford plea to vehicular
assault as charged in the original information. 	The plea stated that the court
could "review the police reports and/or a statement of probable cause supplied
by the prosecution to establish a factual basis for the plea."2 	The court entered
findings accepting the plea and noting that sufficient probable cause existed to
find Bird guilty of "Vehicular Assault."3 	The court then entered a felony judgment
and 	sentence 	finding 	Bird 	guilty 	on 	a 	plea 	of 	"Vehicular 	Assault 	- 	All
Alternatives."4 The notation "(DUI)" is handwritten over "All Alternatives."5
Bird moved to dismiss the felony charge for lack of proof of the predicate
offense. 	The trial 	court agreed 	and dismissed 	the 	felony 	charge without
prejudice. 	The State appeals.
ANALYSIS
Under RCW 	46.61.502(6)(b)(ii) 	and 	RCW 	46.61.5055(4)(b)(ii), 	a 	DUI
charge can be elevated to a felony when a person has been previously convicted
of vehicular assault while under the influence of intoxicating liquor or any drug, as
defined by RCW 46.61.502(1), and causes substantial bodily harm to another
person.
2 Clerk's Papers (CP) at 29.
3 CP at 32.
4 CP at 33.
5 CP at 33.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 71615-8-1/3
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. 	State v. Chambers, 157 Wn. App. 465, 479, 237 P.3d 352 (2010), review
denied, 170Wn.2d 1031. 249 P.3d 623 (2011): State v. Cochrane, 160 Wn. App.
18, 20, 253 P.3d 95 (2011). 	We disagree with Division Two's recent opinion,
State v.Mullen, 	Wn. App. _, 345 P.3d 26 (2015), holding otherwise.
In Mullen, a divided court held that the trial court erred in not instructing a
jury that the State was required to prove beyond a reasonable doubt that alcohol
or drugs were involved in the prior conviction for reckless driving. 	But the issue
of whether that conviction qualifies is a question of law, not fact. 	"As such, the
trial court must determine [the] 'applicability' of a prior offense." Chambers, 157
Wn. App. at 479. 	We review questions of law de novo. 	State v. Mullin-Coston,
152 Wn.2d 107, 114, 95 P.3d 321 (2004).
Only prior offenses that meet the statutory definition are admissible as
predicate offenses elevating a DUI to a felony. 	Chambers, 157 Wn. App. at 479.
Once determined that it is admissible, the State can introduce the crime into
evidence at the present trial.
Below, Bird successfully argued that the record was unclear as to which
alternative Bird was convicted of and, further, 	that without 	proof that he was
convicted of the DUI means of vehicular assault, the felony charge on the new
DUI 	must 	be 	dismissed. 	But the 	evidence 	here 	is more 	than 	sufficient to
establish that Bird was under the influence in his conviction for vehicular assault.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 71615-8-1/4
Under CrR 4.2(d), a trial court must be satisfied that there is a factual
basis for a defendant's guilty plea. 	This is a procedural requirement that is not
constitutionally mandated. 	State v. Branch, 129 Wn.2d 635, 642, 919 P.2d 1228
(1996). The trial court is not limited to the defendant's statement, but may look to
any reliable source to determine that there is a factual basis for a guilty plea.
Here, there was such a factual basis in addition to Bird's own statement.
First, 	Bird 	pleaded 	guilty to all 	alternatives. 	The 2009 judgment and
sentence found Bird guilty of vehicular assault (all alternatives) as charged in the
original information. 	That judgment and sentence included the DUI prong and
the fact that there were two other prongs in addition should not alter his plea as
to the DUI prong.
Second, the statement of defendant on plea of guilty to non-sex offense
(felony) states:
4. 	I Have Been Informed and Fully Understand That:
(b) I am charged with: Vehicular Assault,
The elements are: On July 4, 2008 in Skagit County, WA did
drive a motor vehicle while under the influence of alcohol
and did cause substantial bodily harm to another person to
wit Whitney SchulzJ6]
The findings 	of fact and 	conclusions of law incorporated 	by reference Bird's
statement on his guilty plea.
Additionally, in paragraph 11 of the plea, Bird stated that he agreed the
court could 	review the police reports and/or a statement of probable cause
supplied by the prosecution to establish a factual basis for the plea. 	Witnesses'
6 CP at 22.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 71615-8-1/5
observations were included in those reports. 	One of the witnesses noticed an
odor of alcohol amongst the occupants as well as an odor of marijuana coming
from Bird and 	another passenger. 	A passenger in the 	vehicle 	informed the
responding trooper that Bird had been drinking alcohol earlier jn the evening. At
the hospital, 	Bird appeared dazed and confused and did 	not respond to the
trooper's questions. The trooper observed that Bird's eyes were pink, his speech
was slurred and repetitive, and an odor of alcohol emanated from him. 	Another
witness stated that Bird had consumed beer and smoked marijuana earlier in the
evening. 	The report concluded that Bird was driving in excess of the posted
speed limit while under the influence of alcohol and marijuana.
Thus, 	there 	is sufficient 	information 	upon 	which 	a 	trial 	court 	could
determine that the guilty plea referred to the DUI prong and, therefore, relevant
and admissible at the trial. 	Bird's description of the crime is consistent with a
plea to all three prongs of the vehicular assault crime. 	He was speeding, driving
recklessly while under the influence of alcohol and marijuana.
We hold that Bird's previous conviction serves as a predicate offense
enabling the State to charge him with a felony DUI. 	Accordingly, we reverse the
trial court's order of dismissal and remand for further proceedings.
J 	\^L-f
WE CONCUR:
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