1. A felony DUI trial is a two-part trial

In Washington, a DUI is normally a gross misdemeanor, punishable up to 364 days in jail and a $5,000 fine.

If you have 3 or more prior DUI-related offenses within a 10 year period, however, the State can charge you with felony DUI, a class B felony punishable up to 10 years in state prison.

For this reason, felony DUI jury trials are generally bifurcated into two separate phases. In the first phase (i.e. the first trial), the State has to prove that the defendant committed a DUI. Assuming the jury finds the defendant guilty, the second phase begins.

At the second phase (i.e. the second trial), the State has to prove beyond a reasonable doubt that the defendant has three or more prior DUI offenses.

(Obviously, if the jury knew that a defendant had multiple prior DUIs before the trial stated, the chance of receiving a fair trial would fall somewhere between 0 percent and 0 percent.)

Under Washington law, a “prior” DUI offense is not necessarily a DUI conviction. A prior conviction, of course, counts as a prior DUI, but that's not all. To quote the precise language of RCW 46.61.5055 (the DUI penalty statute), a prior offense also means a conviction for reckless driving or negligent driving in the first degree “if the conviction is the result of a charge that was originally filed” as a DUI.

As you can imagine, the stakes for a DUI defendant in the second trial phase are huge—the difference between a year in jail or possibly ten years in state prison.

The only question, then, is whether the State can prove that the defendant had prior DUI offenses.

2. The jury has to find beyond a reasonable doubt that a defendant has prior DUI convictions to make the DUI a felony

That's why Ken Wu and the State battled in the Court of Appeals over the rules that govern this second trial.

At trial, a jury found Wu guilty of DUI. At the second trial, the State presented evidence that Wu had prior DUI offenses, including two prior convictions for reckless driving when he was originally charged with DUI.

To prove these prior convictions, the State introduced into evidence the criminal complaints showing that Wu was originally charged with DUI and the sentence forms showing that he plead guilty to reckless driving. That was enough for the jury, which convicted him of felony DUI.

But Wu argued—to both the trial court and to the appeals court—that the State also had to prove to a jury beyond a reasonable doubt that “alcohol or drugs were involved” in his prior reckless driving convictions.

In other words, the State had to more than just introduce a complaint and a sentence form. Wu relied on a prior case from the Washington Supreme Court (State v. Greene) supported his argument. InGreene, the state supreme court said that the State has to prove prior DUI conviction involved the use of alcohol or drugs.

Both the trial court and the appeals court disagreed. As the Court explained, to prove the defendant guilty of felony DUI, the State has to prove beyond a reasonable doubt to a jury that Wu had prior DUI offenses. But the “specific details of the prior offense” are not essential elements that a State has to prove to a jury. The only essential element (as described above) is whether Wu's prior reckless driving convictions were the result of his DUI charges.

But what about Greene? Greene doesn't say that a jury had to decide this question of whether drugs or alcohol were involved in the prior offense. The trial judge can decide this question. 

The trial judge in Wu's trial, therefore, followed the correct procedure. After the State rested during the second phase, Wu moved to dismiss the felony DUI charge, arguing that the State presented no evidence that his prior reckless driving convictions actually involved alcohol or drugs. The judge denied his motion, finding that they did. The judge then turned the case over to the jury, which deliberated and found beyond a reasonable doubt that Wu had prior DUI offenses.