State Of Washington, Respondent V. Nicholas Windsor Anderson, Appellant

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
NICHOLAS WINDSOR ANDERSON,
Appellant.
No. 76672-4-I
(Consolidated with
No. 78070-1-I)
DIVISION ONE
UNPUBLISHED OPINION
L EACH, J. - The Washington Supreme Court granted the State’s petition for
review in this case and remanded it to this court1 to reconsider our previous
opinion2 in light of the court’s opinion in State v. Wu.3 We reconsider our opinion
and now hold that the State must prove to a jury that Anderson’s prior reckless
driving conviction was originally charged as driving under the influence but does
not have to prove that drugs or alcohol were involved in that case. 	We remand
for further proceedings consistent with this opinion.
HISTORY
Anderson appealed his convictions for four counts of vehicular homicide,
one count of vehicular assault, and one count of reckless driving. 	Pertinent to
1 State v. Anderson, 195 Wn.2d 1001, 458 P.3d 786 (2020).
2 State v. Anderson, 9 Wn.App.2d 430, 447 P.3d 176 (2019).
3 State v. Wu, 194 Wn.2d 880, 453 P.3d 975 (2019).

No. 76672-4-I/2
2
this opinion, he challenged two 24-month sentence enhancements the trial court
imposed to run consecutively to each of the vehicular homicide convictions and
to each other, 192 months total, because Anderson had two prior convictions for
driving under the influence (DUI) and reckless driving. This challenge raised two
issues.
First, Anderson challenged the trial court judge’s decision that his 2005
reckless driving conviction was a “prior offense” under RCW 46.61.5055. 	He
contended that whether his reckless driving conviction qualified as a “prior
offense” presented a question of fact that a jury must resolve, while the State
asserted that it was a threshold question of law for the judge. 	We agreed with
Anderson.4
Second, he contended the State had to prove to a jury that his reckless
driving conviction involved use of intoxicating liquor or drugs to establish it as a
prior offense. In a split decision, a majority of this court agreed with Anderson.5
The State petitioned the Supreme Court for discretionary review on these
two issues. The Supreme Court accepted review and remanded the case to this
court to reconsider our previous opinion in light of the court’s opinion in State v.
Wu.
ANALYSIS
In State v. Wu, our Supreme Court clarified the required elements for
felony DUI, and whether a judge or a jury must determine whether the State has
proved the required elements. Pertinent here, the court considered who decides
4 9 Wn.App.2d at 446-47.
5 9 Wn.App.2d at 462-63.

No. 76672-4-I/3
3
whether an earlier reckless driving conviction qualifies as a prior offense that
elevates a DUI from a gross misdemeanor to a felony, and whether the State had
to prove that conviction involved use of intoxicating liquor or drugs.
To qualify as a prior offense, a reckless driving conviction must result from
a charge originally filed as a DUI offense.6 The court held in Wu that a jury must
decide whether an earlier reckless driving conviction satisfies this requirement.7
We reached the same conclusion in our earlier opinion. 	So, we do not need to
reconsider our earlier resolution of this issue.
The court in Wu considered and rejected the claim that the State must
prove to the jury that the earlier reckless driving conviction involved alcohol or
drugs to qualify as a prior offense. 	It held that the State need prove only a
reckless driving conviction that resulted from a charge filed as a DUI offense.
Because a majority of our court reached the opposite conclusion in our earlier
opinion, we reconsider and reverse that part of our decision. 	On remand, the
State must prove beyond a reasonable doubt only that Anderson was convicted
of reckless driving on a charge originally filed as a DUI offense.
In our earlier opinion, we also held the trial court should not have imposed
a DNA fee. Nothing in Wu requires us to reconsider that part of our decision.
CONCLUSION
Whether Anderson’s prior reckless driving conviction qualifies as a “prior
offense” for purposes of 	enhancing his 	term 	of 	imprisonment for 	vehicular
homicide involves a question of fact that a jury must decide. We remand for the
6 RCW 46.61.5055.
7 194 Wn.2d at 889.

No. 76672-4-I/4
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superior court to empanel a jury to decide this question and for the court to strike
the DNA fee.
WE CONCUR: