[¥1] Appellant, Kristen N. Spreeman, challenges her conviction of felony driving while under the influence (DWUI) in violation of Wyo. Stat. Ann. §§ 31-5-288(b)(ii1)(A) and (e). She claims that she did not have three prior qualifying convictions, as required by Wyo. Stat. Ann. § 81-5-288(e), to enhance her DWUI conviction to a felony. We affirm.
ISSUE
[12] Appellant presents the following issue:
Did the trial court err in denying Appellant's motion to dismiss the felony "DUI" charge against her, sincе she did not have three prior qualifying convictions?
The State phrases the issue as follows:
Under Wyo. Stat. Ann. § 31-5-283(e), driving while under the influence becomes a felony if a defendant has three prior convictions in this or any other state under a law prohibiting "driving while under the influence." One of Spreeman's three previous Michigan convictions is for driving while "visibly impaired." Is Michigan's prohibition against driving while "visibly impaired" a law that prohibits driving "while under the influence," for purposes of sentencing enhancement under Wyo. Stat. Ann. § 81-5-288(e)?
FACTS
[13] The facts in this matter are undisputed. On December 19, 2010, an officer of the Gillette Police Department stopped Appellant for a traffic violation. An assisting officer smelled a strong odor of alcohol coming from Appellant and noticed that she was slurring her words and that her face was extremely flushed. After performing field sobriety tests, Appellant was arrested for driving while under the influence. Appellant was transported to the Campbell County Detention Center, where she agreed to provide a breath sample. The breath test revealed a blood-alcohol content of .21%, over two-and-a-half times the legal limit.
[14] Appellant was charged by felony information with felony driving while under the influence in violation of Wyo. Stat. Ann. §§ 31-5-233(b)(ii)(A) and (e) (LexisNexis Supp. 2010). The information alleged that Appellant had been convicted of three prior
[15] Following a hearing, the district court denied Appellant's motion to dismiss. In its order denying the motion to dismiss, the court stated that
A comparison of Wyoming's Driving While Under the Influence statute and Michigan's Operating While Impaired statute demonstrate both seek to prevent operation of a motor vehicle when alcohol consumption (Le. consumption of intoxicating liquors) affects a person's ability to operate a vehicle (Me. results in the deprivation of a person's normal control of his bodily or mental faculties).
Appellant entered a conditional guilty plea to the charged felony DWUI, reserving the right to challenge the denial of her motion to dismiss. She was sentenced to twelve to fourteen months in prison. This appeal followed.
STANDARD OF REVIEW
Whether Appellant's Michigan conviction may be considered for enhancement purposes under Wyo. Stat. Ann. § 31-5-233(e) involves a question of statutory interpretation. We review questions of statutory interpretation de novo. Harvey v. State,
DISCUSSION
[17] Appellant entered a conditional guilty plea to felony driving while under the influence in violation of Wyo. Stat. Ann. §§ 31-5-2833(b)(Gii)(A) and (e). Those subsections provide, in relevant part, as follows:
§ 31-5-233. Driving or having control of vehicle while under influence of intoxicating liquor or controlled substances; penalties.
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(b) No person shall drive or have actual physical control of any vehicle within this state if the person:
(i) Has an alсohol concentration of eight one-hundredths of one percent (0.08%) or more;
(i) Has an alcohol concentration of eight one-hundredths of one percent (0.08%) or more, as measured within two (2) hours after the time of driving or being in actual physical control of the vehicle following a lawful arrest resulting from a valid traffic stop; or
(Ii) To a degree which renders him incapable of safely driving:
(A) Is under the influence of alcohol;
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(e) ... On a fourth offense resulting in a conviction or subsequent conviction within ten (10) years for a violation of this section or other law prohibiting driving while under the influence, he shall be guilty of a felony and fined not more than ten thousand dollars ($10,000.00), punished by imprisonment for not more than two (2) years, or both.
The statute defines "[other law prоhibiting driving while under the influence" as "a statute of another state ... which prohibits driving while under the influence of intoxicating liquor, alcohol, controlled substances or drugs." Wyo. Stat. Ann. § 81-5-2833(a)(v).
[T8] Appellant's prior convictions, all of which were received in Michigan, arose from violations of Mich. Comp. Laws § 257.625, which provides as follows:
§ 257.625. Operating - motor - vehicle while intoxicated; operating motor vehicle when visibly impaired; ...
(1) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the park*1162 ing of vehicles, within this state if the person is operating while intoxicated. As used in this section, "operating while intoxicated" means any of the following:
(a) The person is under the influence of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance.
(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or, beginning October 1, 2018, the person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
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(8) A person, whether licensed or not, shall not operate a vehicle upon a highway or other place open to the general public or genеrally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state when, due to the consumption of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance, the person's ability to operate the vehicle is visibly impaired. If a person is charged with violating subsection (1), a finding of guilty under this subsection may he rendered.
(Emphasis added.) In Michigan, the phrase "visible impairment" means that the defendant's "ability to drive was so weakened or reduced by consumption of intoxicating liquor that defendant drove with less ability than would an ordinary, careful and prudent driver." People v. Calvin,
[T9] Appellant contends that driving while "visibly impaired" under Mich. Comp. Laws § 257.625(8) does not constitute a statute "which prohibits driving while under the influence of intoxicating liquor, aleohol, controlled substances or drugs" because driving while "visibly impaired" in Michigan is a lesser included offense of "operating while intoxicated" under Mich. Comp. Laws § 257.625(1). Appellant also contends that the visible impairment standard is satisfied by a lessеr degree of intoxication than operating a vehicle while "incapable of safely driving" as set forth in Wyo. Stat. Aun. § 31-5-283(b)(fii)(A), and is consequently not a qualifying offense for enhancement purposes under Wyo. Stat. Ann. § 31-5-238(e). The State claims, however, that Wyoming's enhancement provision does not restrict qualifying convictions to offenses that arise from violations of laws that are identical, or even substantially similar, to Wyoming's definition of driving while under the influence. It claims that the plain language of Wyoming's enhancement statute, in omitting any reference to the degree of intoxication required under another state's statute, does not limit qualifying convictions to those that arise under statutes which prohibit driving while under the influence "in exaсtly the same fashion and to the same degree that Wyoming does." We agree with the State.
[T10] In determining whether Mich. Comp. Laws § 257.625 constitutes an "other law prohibiting driving while under the influence" under Wyo. Stat. Ann. § 31-5-2838(e), we apply our usual rules of statutory interpretation.
Our paramount consideration is the legislature's intent as reflected in the plain and ordinary meaning of the words used in the statute. Initially, we determine whether the statute is clear or ambiguous.
A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Conversely, a statute is ambiguous if it is found to be vague or uncertain and subject to varying interpretations. If we determine that a statute is clear аnd unambiguous, we give effect to the plain language of the statute.
Parks v. State,
[T11] Appellant's analysis attempts to focus our attention on the variation in the level of intoxication necessary to the offense of driving under the influence of alcohol to a degree which renders a person incapable of safely driving, in violation of Wyo. Stat. Ann. § 81-5-288(b)Gi)(A), and the level of intoxication necessary to the offense of driving with less ability than would an ordinary,
[112] As noted above, Wyo. Stat, Ann. § 31-5-238(e) states that a fourth conviction for "a violation of this section or other law prohibiting driving while under the influence" results in a felony. The statute makes no qualifying referenсe to laws that specify a certain blood-aleohol content, or that require a degree of intoxication which renders a person "incapable of safely driving," as set forth in Wyo. Stat. Ann. §§ 31-5-2833(b)(), (b)), or (b)Gii). The statute also does not provide that another state's law "prohibiting driving while under the influence" must be "substantially similar," or even merely "similar," to Wyoming's law in order for а conviction to qualify for enhancement purposes. Likewise, the definition of "other law prohibiting driving while under the influence" gives no indication that the phrase incorporates Wyoming's criteria for conviction under Wyo. Stat. Ann. §§ (b)), or (b)Gii). Rather, Wyo. Stat. Ann. § 81-5-2883(a)(v) defines "[olther law prohibiting driving while under the influence" simply as "a statute of another state ... which prohibits driving while under the influence of intoxicating liquor, alcohol, controlled substances or drugs." - Again, the statutory definition makes no mention of a certain degree of intoxication that must be set forth in another state's statute in order for a conviction to qualify for enhancement purposes.
[118] Although we do not find Wyoming's DWUI enhancement provision to be ambiguous, we are nonеtheless guided by well-established rules of statutory construction in determining whether Appellant's Michigan conviction for driving while visibly impaired is a qualifying conviction under Wyo. Stat. Ann. § 81-5-288(e). "[A] basic tenet of statutory construction is that omission of words from a statute is considered to be an intentional act by the legislature, and this court will not read words into a statute when the legislature has chosen not to include them." Adelizzi v. Stratton,
Where the legislature has specifically used a word or term in certain places within a statute and exeluded it in another place, the court should not read that term into the section from which it was excluded. A word or words appearing in one section of a statute cannot be transferred into anothеr section.
In re Adoption of Voss,
[¢14] Our conclusion is further supported by Wyoming precedent interpreting the meaning of the phrase "driving while under the influence," as used in Wyo. Stat. Ann. § 81-5-288(e). In Goich v. State,
[T15] The cases cited by Appellant as authority for the proposition that a conviction for driving while visibly impaired cannot be used to enhance her conviction are distinguishable based on the language of the applicable statutes in those jurisdictions. In State v. Akins,
[116] Likewise, in State v. McNally,
[117] Finally, Appellant cites to Oxendine v. Secretary of State,
[T18] As noted above, Wyoming's enhancement statute contains no requirement that a conviction for driving while under the influence must be received under a statute that is "similar," "substantially similar," or that "substantially corresponds" to Wyoming's statute prohibiting driving under the influence. As a result, the statutory element that was critical to the holdings in Akins, McNally, and Oxendine does not enter our analysis. Because Wyoming's enhancement provision, contained in Wyo. Stat. Ann. § 81-5-2383(e), does not incorporate the elements of driving while under the influence of alcohol set forth in Wyo. Stat. Ann. §§ 81-5-2383(b)0), (b)G), or (b)@ii), we must conclude that Appellant's Michigan conviction for driving while visibly impaired may be used to enhance thе current conviction to a felony.
[119] Affirmed.
Notes
. Voss emphasized the importance of these rules of statutory construction by providing ample legal authority:
The omission of words from a statute must be considered intentional on the part of the legislature. State v. Reese, 1974,12 Wash.App. 407 ,529 P.2d 1119 . Words may not be supplied in a statute where the statute is intelligible without the addition of the alleged omission. Ward v. Yoder, Wyo.1960,355 P.2d 371 , 376, reh. den.,357 P.2d 180 ; Montoya v. McManus, 1961,68 N.M. 381 ,362 P2d 771 . Words may not be inserted in a statutory provision under the guise of interpretation. Kirkwood v. Bank of America Nat. Trust & Savings Ass'n., 1954,43 Cal.2d 333 ,273 P.2d 532 . The Supreme Court will not read into laws what is not there. Durante v. Consumers Filling Station Company of Cheyenne, 1953,71 Wyo. 271 , 299,257 P.2d 347 , 356; Cook v. Hill, 1960,224 Or. 565 ,356 P.2d 1067 . This court will not supply omissions in a statute and redress is with the legislature. Lo Sasso v. Braun, Wyo.1963,386 P.2d 630 , 631-632. We are alerted by all this to the result that it is just as important to recognize what a statute does not say as it is to recognize what it does say.
Id.,