NEWLUN v. STATE
2015 OK CR 7
| Okla. Crim. App. | 2015Background
- On Nov. 3, 2012, Starr Newlun was stopped after erratic driving; breath test showed .22 BAC and she failed field sobriety tests.
- Charged with aggravated DUI (BAC ≥ .15) and failure to yield; aggravated-DUI charge charged as a felony based on a prior felony DUI conviction in 1997.
- Newlun moved to dismiss/convert the felony enhancement, arguing the prior conviction and sentence were completed more than ten years before the 2012 offense.
- Trial court denied the motion, ruling that once a person attains "felony status" the 10‑year rule does not apply; Newlun was convicted in a non‑jury trial.
- On appeal, the Oklahoma Court of Criminal Appeals reviewed statutory interpretation de novo and considered prior precedent (Kolberg) holding a post‑10‑year subsequent DUI may be reduced to a misdemeanor.
- The Court modified Count 1 to misdemeanor aggravated DUI (one year jail suspended) and affirmed Count 2.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2012 aggravated DUI must be a felony because of a prior felony DUI (1997) | Newlun: prior sentence was completed >10 years before; statutory 10‑year window bars felony enhancement, so current offense should be misdemeanor | State: once a person has a prior felony DUI, subsequent DUIs are felonies regardless of the 10‑year lapse; trial court: "felony status" permanent | Court: Modified conviction to misdemeanor; 10‑year limitation in §11‑902 controls, so Kolberg precedent applies |
| Whether §11‑902(C)/(D) permits treating a second DUI as a misdemeanor if prior felony conviction occurred and sentence completed >10 years earlier | Newlun: statutory text and rule of lenity require strict construction favoring accused; plain language ties felony enhancement to probation or within 10 years after completion | State: subsections addressing punishments for second/third felonies show legislature intended permanent felony enhancement; omission of time limits in some subsections supports enhancement | Court: Plain language does not create permanent felony status; punishment subsections do not redefine when an offense becomes a felony; policy arguments for permanent enhancement are for Legislature |
Key Cases Cited
- Kolberg v. State, 925 P.2d 66 (Okla. Crim. App. 1996) (held a second DUI occurring more than ten years after prior conviction/sentence should be reduced to misdemeanor)
- State v. Day, 882 P.2d 1096 (Okla. Crim. App. 1994) (applies rule of lenity; construing criminal statutes strictly against the State)
- State v. District Court of Cleveland County, 816 P.2d 552 (Okla. Crim. App. 1991) (courts will not read words into criminal statutes to extend their reach)
- Barnard v. State, 119 P.3d 203 (Okla. Crim. App. 2005) (statute with unambiguous language must be applied as written)
- Johnson v. State, 308 P.3d 1053 (Okla. Crim. App. 2013) (statutory construction principles: give effect to legislature's plain language)