[No. 42914-4-II. Division Two. August 27, 2013.]
Oliver R. Davis (of Washington Appellate Project), for appellant.
Michael K. Dorcy, Prosecuting Attorney, and Timothy J. Higgs, Deputy, for respondent.AUTHOR: J. Robin Hunt, P.J. We concur: Joel Penoyar, J., Thomas R Bjorgen, J.J. Robin Hunt
FACTS It is a class C felony punishable under chapter 9.94A RCW, or chapter 13.40 RCW if the person is a juvenile, if: (a) The person has four or more prior offenses within ten years as defined in RCW 46.61.5055.» ANALYSIS FELONY DUI OFFENDER SCORE: Morales AND RCW 9.94A.525(2)(e) If the present conviction is felony driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502(6)) . . . prior convictions of felony driving while under the influence of intoxicating liquor or any drug, felony physical control of a vehicle while under the influence of intoxicating liquor or any drug [(RCW 46.61.504(6))], and serious traffic offenses (Emphasis added.) These subsection (ii) "prior offenses," however, do not include every crime; rather, they are limited to the following statutorily specified offenses: nonfelony DUI (RCW 46.61.502), nonfelony physical control of vehicle while under the influence (RCW 46.61.504), vehicular homicide (RCW 46.61.520), vehicular assault (RCW 46.61.522), negligent driving (RCW 46.61.5249), reckless driving (RCW 46.61.500), and reckless endangerment (RCW 9A.36.050); these "prior offenses" also include deferred prosecutions and comparable out-of-state convictions for these listed crimes. Former RCW 46.61.5055(14)(a) (2011). A. Subsection (ii) "prior [former RCW 46.61.5055 (2011)] offenses within ten years" [1] B. Subsection (i) "prior convictions" committed within five years "since" release from confinement or entry of judgment and sentence 1. Prior convictions that count as offender score points [2] 2. Prior convictions that begin the running of the five-year intervals [3-5] (b) Class B prior felony convictions other than sex offenses shall not be included in the offender score, if since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent ten consecutive years in the community without committing any crime that subsequently results in a conviction. (c) Except as provided in (e) of this subsection, class C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction. (d) Except as provided in (e) of this subsection, serious traffic convictions shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender spent five years in the community without committing any crime that subsequently results in a conviction.» [6] EXCLUSION OF INHALANT DEVICE TESTIMONY A. Standard of Review B. Mischaracterization of Knoy's Testimony COMMUNITY CUSTODY AND INCARCERATION PENOYAR and BJORGEN, JJ., concur.