NEWLUN v. STATE, 348 P.3d 209

On Nov. 3, 2012, Starr Newlun was stopped after driving erratically; breath test = .22 BAC. She admitted intoxication and failed field sobriety tests.
Charged in Tulsa County with: (Count 1) aggravated DUI (BAC ≥ .15) after former felony DUI; (Count 2) failure to yield.
Newlun had a prior felony DUI conviction from Oct. 22, 1997, with a two‑year sentence completed more than ten years before the 2012 offense.
Pretrial, Newlun moved to dismiss or to be charged only with misdemeanor DUI based on the statute’s ten‑year limiting language; trial court denied the motion, holding that once a person attains “felony status” the ten‑year rule does not apply.
On non‑jury trial she was convicted on both counts; sentence for Count 1 was five years suspended and $600 fine. Newlun appealed the felony designation on Count 1.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 2012 aggravated DUI may be a misdemeanor despite a prior felony DUI >10 years earlier	Newlun: § 11‑902’s plain text and Kolberg require the ten‑year lookback; because prior sentence was completed >10 years earlier, the new offense is misdemeanor	State: once a defendant has a prior felony DUI, subsequent DUI is felonious irrespective of the ten‑year lapse; subsections addressing punishment support felony status	Court: Modified conviction to misdemeanor aggravated DUI — the ten‑year limit controls; Kolberg precedent followed
Proper statutory construction to resolve ambiguity and application of rule of lenity	Newlun: statute’s plain language controls; any ambiguity favors defendant under rule of lenity	State: omission of time limits in later subsections implies enhancement without time restriction	Court: Applied plain language and rule of lenity; refused to read additional time‑free enhancement into statute

Kolberg v. State, 925 P.2d 66 (1996) (held second DUI >10 years after prior conviction must be treated as misdemeanor under § 11‑902)
Johnson v. State, 308 P.3d 1053 (2013) (statutory interpretation: apply plain language and legislative intent)
State v. Day, 882 P.2d 1096 (1994) (discusses rule of lenity in criminal statutes)
State v. Tran, 172 P.3d 199 (2007) (limits on expanding criminal statutes by implication)
Durant v. State, 188 P.3d 192 (2008) (strict construction protects fair warning when liberty is at stake)
Barnard v. State, 119 P.3d 203 (2005) (unambiguous statutes govern; no resort to extra rules)
State v. District Court of Cleveland County, 816 P.2d 552 (1991) (words not in statute will not be read in to extend criminal liability)
Young v. State, 989 P.2d 949 (1999) (court should not fix legislative omissions by judicial interpretation)