DUI: Phase II Enhancements

CR30-171.  DUI: Second Offense under 23 V.S.A. § 1201(a)(2), Phase II proceeding (04/22/03).

Reporter’s Note

When the state seeks to penalize a defendant as a repeat offender, he or she is entitled to a bifurcated proceeding, including a jury trial on the second phase to consider (1) the sufficiency of the record alleged as to the prior convictions, and (2) the defendant’s identity as the person previously convicted.  See State v. Angelucci, 137 Vt. 272, 281 (1979); State v. Cameron, 126 Vt. 244, 249 (1967).  Bifurcated proceedings have been used to address repeat DUI convictions, under 23 V.S.A. § 1210, in State v. Carpenter, 170 Vt. 371 (2000); State v. Porter, 164 Vt. 515 (1996); and State v. Baril, 155 Vt. 344 (1990).

 To the extent there may be issues over the use of a prior conviction based on a prior law, or based on a conviction from another state, the defendant is not entitled to a jury determination on whether the prior conviction is sufficient under Vermont law.  Those issues present pure questions of law.  Accordingly, it is the Court’s duty to instruct the jury as to nature and effect of out of state convictions as a matter of law, i.e., whether the elements of the out of state conviction under the other jurisdiction’s law are the equivalent of the Vermont offense. See 23 V.S.A. § 1211 and State v. Pecora,2007 VT 41, 181 Vt. 627.

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