Appellate Court Affirms Felony DWI Enhancement Based on Prior Misdemeanor CVO Conviction under 609.13

In the published opinion of State v. Coleman filed on January 3, 2012, the Court of Appeals ruled that the defendant’s 2010 DWI incident was enhanceable to felony DWI based solely on defendant’s 1990 conviction for criminal vehicular operation (“CVO” – DWI involving great bodily harm), which by operation of law became a misdemeanor on defendant’s record in 1995.  In 1990, the defendant was convicted of the felony-level offense of CVO, and the court imposed a “stay of imposition,” which meant that upon successful discharge from probation in 1995, the offense level decreased from a felony to a misdemeanor on defendant’s record.
In 2010, defendant was arrested for DWI, which occurred 20 years after the prior CVO conviction.  The plain language of the felony DWI statute states that enhancement to felony DWI must be predicated on a prior felony DWI conviction under the CVO statutes.  Because defendant’s conviction was deemed a misdemeanor in 1995, she argued at trial and on appeal that the 2010 DWI cannot be charged as a felony because there no longer is a prior felony CVO conviction on her record.  The trial court and Court of Appeals disagreed.  Despite the plain language in the felony DWI statute, the court reasoned that the prior CVO conviction was still considered a felony for purposes of enhancing any future DWI incident to a felony because from 1990 to 1995 defendant was convicted of a felony CVO offense under the stay of imposition.  Thus, the fact that the offense became a misdemeanor after completing probation did not affect the enhancement. 
If this DWI were not enhanceable, the defendant would have been charged with misdemeanor Fourth Degree DWI and faced a maximum of 90 days in jail.  Instead, the court affirmed the felony DWI conviction, and defendant was sentenced to 54 months in prison.

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