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IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 34590
STATE OF IDAHO,                                                                                                           )
                                                                                                                          )   2008 Opinion No. 88
                                                                                                  Plaintiff-Respondent,   )
                                                                                                                          )   Filed: September 29, 2008
v.                                                                                                                        )
                                                                                                                          )   Stephen W. Kenyon, Clerk
KENT JAY LESLIE,                                                                                                          )
)
Defendant-Appellant.                                                                              )
)
Appeal from the District Court of the Third Judicial District, State of Idaho,
Canyon County.  Hon. Juneal C. Kerrick, District Judge.
Judgment of conviction for felony driving under the influence, affirmed.
Molly J. Huskey, State Appellate Public Defender; Eric D. Fredericksen, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
PERRY, Judge
Kent Jay Leslie appeals from his judgment of conviction for felony driving under the
influence (DUI).  For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
Leslie was stopped for driving erratically and failed several field sobriety tests.   He was
charged with misdemeanor DUI.   I.C. § 18-8004.   Later, it was discovered that Leslie had two
previous convictions for DUI, one of which had been subject to an enhanced penalty for
excessive alcohol concentration.   I.C. § 18-8004C.   Because of his previous record, the state
amended Leslie’s misdemeanor DUI citation to felony DUI.   I.C. § 18-8005(5).   Leslie filed a
motion to have the prior DUI which was enhanced for excessive alcohol concentration stricken
from his charging information.   Leslie reasoned that an I.C. § 18-8005(5) enhancement was
applicable only if he had pled guilty or been found guilty of three violations of I.C.  §  18-
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8004                                                                                                      (1)(a), (b), or (c), within five years and that his prior conviction, with enhanced penalties for
excessive alcohol concentration, was based on I.C.  §  18-8004C.    The district court denied
Leslie’s motion, holding that an enhanced conviction under I.C. § 18-8004C first required that
Leslie be found guilty of I.C. § 18-8004(1)(a), (b), or (c).   Therefore, the requirements of I.C. §
18-8005(5) were satisfied.   Leslie entered a conditional guilty plea and was sentenced to a
unified term of three years, with a minimum period of confinement of two years.   The district
court suspended the sentence and placed Leslie on probation.   Leslie appeals, challenging the
district court’s denial of his motion to strike the previous DUI conviction with the excessive
alcohol concentration enhancement.
II.
ANALYSIS
This Court exercises free review over the application and construction of statutes.   State
v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct. App. 2003).     Where the language of a
statute is plain and unambiguous, this Court must give effect to the statute as written, without
engaging in statutory construction.   State v. Rhode, 133 Idaho 459, 462, 988 P.2d 685, 688
(1999); State v. Burnight, 132 Idaho 654, 659, 978 P.2d 214, 219 (1999); State v. Escobar, 134
Idaho 387, 389, 3 P.3d 65, 67 (Ct. App. 2000).   The language of the statute is to be given its
plain, obvious, and rational meaning.   Burnight, 132 Idaho at 659, 978 P.2d at 219.     If the
language is clear and unambiguous, there is no occasion for the court to resort to legislative
history or rules of statutory interpretation.   Escobar, 134 Idaho at 389, 3 P.3d at 67.    When this
Court must engage in statutory construction, it has the duty to ascertain the legislative intent and
give effect to that intent.   Rhode, 133 Idaho at 462, 988 P.2d at 688.   To ascertain the intent of
the legislature, not only must the literal words of the statute be examined, but also the context of
those words, the public policy behind the statute, and its legislative history.   Id.   It is incumbent
upon a court to give a statute an interpretation, which will not render it a nullity.   State v. Beard,
135 Idaho 641, 646, 22 P.3d 116, 121 (Ct. App. 2001).     Constructions of a statute that would
lead to an absurd result are disfavored.   State v. Doe, 140 Idaho 271, 275, 92 P.3d 521, 525
(2004); State v. Yager, 139 Idaho 680, 690, 85 P.3d 656, 666 (2004).
Idaho Code Section 18-8004C provides, in pertinent part:
Notwithstanding any provision of section  18-8005, Idaho Code, to the
contrary:
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(1) Any person who pleads guilty to or is found guilty of a violation of the
provisions of section 18-8004(1)(a), Idaho Code, for the first time, but who has an
alcohol concentration of 0.20, as defined in section 18-8004(4), Idaho Code, or
more, as shown by an analysis of his blood, breath or urine by a test requested by
a police officer, shall be guilty of a misdemeanor;
The statute then goes on to provide a greater penalty for this misdemeanor DUI than is applicable
to a misdemeanor DUI where the alcohol concentration is less than 0.20.
Idaho Code Section 18-8005(5) then provides, in pertinent part:
Except as provided in section 18-8004C, Idaho Code, any person who
pleads guilty to or is found guilty of a violation of the provisions of section 18-
8004(1)                                                                                                (a), (b) or (c), Idaho Code, who previously has been found guilty of or has
pled  guilty  to  two                                                                                                                                                                                                                    (2)  or  more  violations  of  the  provisions  of  section       18-
8004(1)                                                                                                (a),                                                                          (b)  or                                             (c),  Idaho  Code,  or  any  substantially  conforming  foreign
criminal  violation,  or  any  combination  thereof,  within  ten                                      (10)  years,
notwithstanding the form of the judgment(s) or withheld judgment(s), shall be
guilty of a felony;
Leslie  argues  that  the  plain  language  of  I.C.                                                   §  18-8005(5)  expressly  excludes  the
consideration of prior convictions that are enhanced under I.C. § 18-8004C because the provision
begins  with                                                                                           “except  as  provided  in  section                                            18-8004C.”    Furthermore,  he  argues  that  the
legislature expressly excluded I.C. § 18-8004C from consideration in I.C. § 18-8005(5) because
I.C. § 18-8004C is a separate offense from I.C. § 18-8004(1)(a)-(c) that requires proof of an
additional element--blood alcohol concentration above 0.20.  Additionally, Leslie argues that any
ambiguities in the statute must be resolved in favor of the defendant according to the rule of
lenity.
We disagree.   This section does not create a separate offense, as Leslie suggests.   Rather,
it is an enhanced penalty provision for those convicted of DUI with elevated blood alcohol
levels.   Idaho Code Section 18-8004C is entitled “Excessive alcohol concentration--Penalties.”
It explicitly provides that upon a finding of guilt under I.C. § 18-8004(1)(a), a defendant is
subjected to the enhancement if his or her blood alcohol concentration is  0.20 or higher,
notwithstanding any penalties imposed as a result of I.C. § 18-8005.   Additionally, as the district
court determined, the plain language of I.C. § 18-8004C presupposes a finding of guilt under I.C.
§ 18-8004(1)(a).
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Next we consider Leslie’s argument that the “except as provided in section 18-8004C”
language of I.C.  §  18-8005(5) precludes the use of a previous misdemeanor DUI, that was
enhanced under I.C.  §  18-8004C, from consideration for a repeat DUI felony enhancement.
Idaho Code Section 18-8005(5) addresses repeat DUI offenders.   Idaho Code Section 18-8004C
pertains to offenders with excessive blood alcohol levels.   There is no language in either section
that lends to the conclusion that a previous misdemeanor DUI, enhanced under I.C. § 18-8004C,
cannot be considered for the purposes of a later felony enhancement.   Rather, the plain meaning
of these two sections is that the penalty provisions of I.C. § 18-8004C apply rather than those
specified in I.C. § 18-8005(5), when the alcohol concentration for the present offense is 0.20 or
more.  Therefore, I.C. § 18-8005(5) does not preclude the use of a previous conviction for  which
the penalty was enhanced under I.C. § 18-8004C, in its computation for felony enhancement for
a repeat DUI offender.   Because we find that the language of the two sections is plain and
unambiguous, the rule of lenity does not apply.
Finally, we note that the policies behind providing enhanced penalties for repeat DUI
offenders  are  to  remove  them  from  the  roadways  and  to  deter  other  potential  offenders.
Likewise, the policy behind providing enhancements for those more dangerous DUI offenders
with excessive blood alcohol concentrations is to deter such persons from driving in such a
condition or, in the alternative, to remove them from the roadways for a longer period of time.  It
would  be  an  absurd  result  to  hold  that  a  repeat  DUI  offender  should  have  a  previous
misdemeanor DUI stricken from consideration in determining enhancement to a felony DUI
under I.C. § 18-8005 because the previous misdemeanor DUI was enhanced under I.C. § 18-
8004C due to excessive blood alcohol concentration.
III.
CONCLUSION
The plain language of I.C. §§ 18-8004C and 18-8005(5) is unambiguous and does not
preclude the use of a prior DUI conviction, with an enhanced penalty for excessive alcohol
concentration, from being used in determining a repeat DUI offender felony enhancement.   The
district court did not err in denying Leslie’s motion to strike that offense from the information.
Therefore, Leslie’s judgment of conviction for felony DUI is affirmed.
Chief Judge GUTIERREZ and Judge LANSING, CONCUR.
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