NEWLUN v. STATE
2015 OK CR 7
| Okla. Crim. App. | 2015Background
- On Nov. 3, 2012, Starr Newlun was stopped in Tulsa after erratic driving; breath test showed .22 BAC and she failed sobriety tests.
- Newlun was charged with aggravated DUI (BAC ≥ .15) and Failure to Yield; trial was non-jury in Tulsa County, Case No. CF-2013-843.
- The State prosecuted aggravated DUI as a felony based on a prior felony DUI conviction (Oct. 22, 1997) and resulting sentence completed more than ten years before the 2012 offense.
- Before trial Newlun moved to dismiss/enforce misdemeanor treatment under 47 O.S. § 11-902 because the prior conviction and sentence completion were over ten years earlier; trial court denied the motion.
- The district court convicted and sentenced Newlun; she appealed arguing the ten-year statute prevents felony treatment when the prior sentence was completed more than ten years before the new offense.
- The Oklahoma Court of Criminal Appeals modified Count 1 from felony aggravated DUI to misdemeanor aggravated DUI and reduced the sentence; Count 2 was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2012 aggravated DUI is a felony under 47 O.S. § 11-902 given a prior felony DUI whose sentence was completed >10 years earlier | Newlun: § 11-902 makes second DUI a felony only if committed while on probation or within 10 years after completion of prior sentence; here >10 years, so only a misdemeanor | State: Prior felony status means subsequent DUI should remain a felony; court found "once felony, always felony" | Court: Agrees with Newlun and Kolberg—because statute imposes the 10-year limit, the 2012 offense is a misdemeanor aggravated DUI; modify conviction and sentence |
Key Cases Cited
- Kolberg v. State, 925 P.2d 66 (Okla. Crim. App. 1996) (held second DUI over ten years after prior conviction must be treated as misdemeanor)
- Johnson v. State, 308 P.3d 1053 (Okla. Crim. App. 2013) (statutory interpretation principles; rely on plain language)
- State v. Day, 882 P.2d 1096 (Okla. Crim. App. 1994) (application of rule of lenity in criminal statutes)
- State v. Tran, 172 P.3d 199 (Okla. Crim. App. 2007) (statutory construction limits courts from enlarging criminal statutes beyond their language)