2013 Opinion No. 47
Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bannock County. Hon. Stephen S. Dunn, District Judge.
Order denying motion to dismiss, reversed, and case remanded.
Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy Attorney General, Boise, for respondent.
Gary L. Schall challenges the district court's denial of his motion to dismiss a felony charge for driving under the influence on the ground that the evidence at the preliminary hearing did not show probable cause to believe that a felony was committed. We reverse and remand.
Following an August 9, 2011, traffic stop, Schall was arrested for driving under the influence, Idaho Code § 18-8004(1)(a). The State filed a complaint with a charging enhancement elevating the charge from a misdemeanor to a felony under I.C. § 18-8005(6) on the ground that Schall had been twice convicted of driving under the influence within the preceding ten years.
At the close of the preliminary hearing, Schall moved to dismiss the charge pursuant to Idaho Criminal Rule 5.1(c), contending that the State had failed to show probable cause for a felony offense. Schall argued that because one of the alleged prior offenses was from Wyoming, the State bore the burden to place into evidence the Wyoming DUI statute under which he was convicted and demonstrate, as a matter of law, that this statute was "substantially conforming" to Idaho's DUI statute, I.C. § 18-8004, as required by I.C. §§ 18-8005(6) and 18-8005(10). The magistrate, however, held that it was Schall's burden to show that the Wyoming statute was noncomplying and that this should be done at the district court level. The magistrate then bound the defendant over to district court.
Schall pursued the issue in the district court through an I.C.R. 12(b)(1) motion to dismiss. He asserted the same alleged deficiency in the preliminary hearing evidence, arguing that the State had not met its burden to show probable cause for a felony. In the alternative, and taking heed of the magistrate court's ruling that Schall bore the burden of proof on the issue, Schall placed the Wyoming DUI statute before the court and argued that it did not substantially conform to I.C. § 18-8004, so the charge against him should be dismissed or reduced to a misdemeanor. As to the nature of the nonconformity, Schall pointed out that the Wyoming DUI law permits a conviction if breath test results show an alcohol concentration of less than .08, whereas Idaho law precludes a DUI charge in that circumstance; and Schall asserted that his Wyoming breath test showed an alcohol concentration of .06, which would not support a DUI conviction in Idaho. See I.C. § 18-8004(2). The district court held that the State did not bear the burden of proving that the Wyoming statute substantially conforms and that the preliminary hearing evidence was therefore adequate. The district court was of the view that once the State presented a copy of the Wyoming judgment of conviction as evidence at the preliminary hearing, the burden shifted to Schall to prove that the Wyoming statute was not substantially conforming. The court thus determined that the issue was effectively an affirmative defense. The district court further held that the Wyoming statute substantially conformed to I.C. § 18-8004.
Schall thereafter entered a conditional plea of guilty to felony DUI, reserving the right to appeal the denial of ...