State ex rel. Collins v. Udall (Flood)
In State ex rel. Collins v. Udall (Flood), 149 Ariz. 199, 717 P.2d 878 (1986), the defendant was charged with driving while under the influence of intoxicating liquor, with two prior convictions for the same offense within 60 months.
There, as here, the issue before the court was whether the two prior DWI convictions were elements of a separate or distinct crime.
Construing A.R.S. 28-692 and 28-692.01 (1997), the two statutes that, as discussed below, together served as the original version of A.R.S. 28-1381, the court held that a prior DWI conviction was not an element of the offense; therefore, a bifurcated trial was required under the then-current version of Rule 19.1(b). The court reasoned as follows:
Arizona Revised Statutes section 28-692(A) defines the offense and makes it unlawful "for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this state." Once a conviction for violation of 28-692 occurs, the punishment provisions of 28-692.01 come into play. The applicable subsection, 28-692.01(F), reads in pertinent part:
If a person is convicted of a third or subsequent violation of 28-692 within a period of sixty months, the person is guilty of a class 5 felony and shall not be eligible for probation, pardon, parole . . . . (emphasis supplied). The classification of a DWI offense as a class five felony under 28-692.01(F) is conditioned on conviction under A.R.S. 28-692. The prior conviction is not an element of the basic offense, but a prior conviction does increase the penalty for that offense. Id. at 200.