Division III: Offender Score Showdown on DUI Cases - Divisions I and II Squaring Off Against Division III as Eastern Washington Rejects Morales and Jacobs.
This case is actually pretty significant if you do DUI work. Otherwise, this is not a terribly exciting case. Its a guy who pleaded guilty to a DUI, but disputed his offender score calculation. He also was miffed about a bunch of terms that were over the statutory maximum sentences. Under the sentencing guidelines, these things have ranges - minimums and maximums. Sometimes you can depart with good reason. There was no such thing here.
Hernandez also complained about the court considering offenses that weren’t listed in the statute in calculating his offender score. The court of appeals had no problem with that. The statute talks about counting prior felony dui, felony control, and serious traffic offenses under certain circumstances. It doesn’t say that the other prior convictions won’t be counted under the standards for all offender score calculations. Its modifying a subset:
The holdings in Morales Jacob do not bind us. While Divisions One and Two were persuaded the plain meaning of subsection (2}(e) means solely those crimes specifically enumerated in the subsection could count in an offender score calculation for a felony DUI, we reason the plain meaning is that subsection (2}(e) acts as an exception to the wash out provisions seen in subsections (2}(c) and (d). Subsection (2)(e) revives certain offenses that would wash out under (2}(c) and (d), but solely in cases where the current conviction is for felony DUI or felony physical control.
First, the fact that they called it the Morales Jacob holding is weird. These are two separate cases: State v. Morales, 168 Wn. App. 489, 278 P.3d 668 (Div. I 2012), and State v. Jacob, 176 Wn. App. 351, 308 P.3d 800 (Div. 2 2013) (adopting Morales). These two cases essentially took the opposite view, that RCW 9.94A.525(2)(e) was an exclusive list, and not a modification of wash out provisions.
So, it looks like we have an honest to goodness split here that the Supreme Court will have to weigh in on. Hopefully this case is taken up to the Washington Supreme Court to settle the matter.
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