NEWLUN v. STATE
2015 OK CR 7
| Okla. Crim. App. | 2015Background
- On Nov. 3, 2012, Starr Newlun was stopped after driving signs (hitting a curb, running a stop sign); she exhibited intoxication and registered 0.22 BAC.
- Newlun was charged with Aggravated DUI (breath/blood ≥ .15) and Failure to Yield; aggravated DUI was charged as a felony based on a prior felony DUI conviction from Oct. 22, 1997.
- Newlun moved to dismiss/for reduction arguing the prior felony was completed more than ten years before the 2012 offense, so the 2012 offense could only be a misdemeanor under 47 O.S. § 11-902.
- The trial court denied the motion, ruling that once a person has achieved felony status the ten-year rule does not apply; Newlun was convicted and sentenced (Count 1: five years suspended + $600 fine; Count 2: $10 fine).
- On appeal the Oklahoma Court of Criminal Appeals reviewed statutory interpretation de novo and considered prior precedent (notably Kolberg) and rules of statutory construction including lenity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2012 aggravated DUI is a felony under 47 O.S. § 11-902 | Newlun: because her prior felony sentence was completed more than 10 years before, the 2012 offense cannot be a felony and must be a misdemeanor | State: prior felony status allows later DUI to be treated as felony regardless of the 10-year lapse; subsections addressing punishments imply enhancement without time limit | Court: Modified conviction — aggravated DUI reduced to misdemeanor because § 11-902’s 10-year limitation controls creation of felony status |
| Whether a subsequent DUI committed over 10 years after completion of prior DUI sentence can be treated as a felony | Newlun: statutory text requires second offense within probation or within 10 years after completion to be a felony | State: subsections on second/third felonies and punishment support treating later offenses as felonies; cited unpublished authority | Court: Rejected State; followed Kolberg — time limit in § 11-902 controls; policy-based expansions are for the Legislature, not the Court |
Key Cases Cited
- State v. District Court of Cleveland County, 816 P.2d 552 (Okla. Crim. App. 1991) (words not found in statute will not be read into it to extend criminal liability)
- State v. Day, 882 P.2d 1096 (Okla. Crim. App. 1994) (rule of lenity requires strict construction against the State)
- Kolberg v. State, 925 P.2d 66 (Okla. Crim. App. 1996) (second DUI more than ten years after prior felony must be treated as misdemeanor)
- Barnard v. State, 119 P.3d 203 (Okla. Crim. App. 2005) (clear statutory language controls interpretation)
- State v. Tran, 172 P.3d 199 (Okla. Crim. App. 2007) (statutes not enlarged by implication beyond fair meaning)
- Durant v. State, 188 P.3d 192 (Okla. Crim. App. 2008) (strict construction protects fair notice when liberty is at stake)
- State v. Davis, 260 P.3d 194 (Okla. Crim. App. 2011) (de novo review of statutory interpretation in criminal appeals)
- Johnson v. State, 308 P.3d 1053 (Okla. Crim. App. 2013) (plain statutory language governs interpretation)
- State v. Iven, 335 P.3d 264 (Okla. Crim. App. 2014) (legislative intent derived from plain text of statute)
Decision: Conviction on Count 1 modified from felony aggravated DUI to misdemeanor aggravated DUI with sentence modified to one year in jail suspended; Count 2 affirmed.