IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE '-; STATE OF WASHINGTON, Respondent,

v. DWIGHT BENSON, Appellant. No. 68075-7-

UNPUBLISHED OPINION FILED: September 16, 2013 cr.t

.

Verellen, J. — Dwight Benson appeals his convictions for felony driving under the influence (DUI), reckless driving, and driving while license revoked. Benson, who is 

### African American, argues that the trial court erred by allowing the State to exercise a peremptory challenge to exclude the only remaining African Americanjurorfrom the 

### panel ofprospectivejurors. Undertheexisting Batson1 standards, the corequestion is whetherthe prosecutor relied upon prospectivejurors' negative experiences with police

as a proxy for race, resulting in purposeful discrimination. Although a peremptory challenge based on past negative experiences with police has the potential to be misused as a proxy for race, the totality of the circumstances here supports the trial court's finding that the prosecutor had a good-faith basis for exercising the peremptory challenge. The prosecutor did not inquire about any negative experiences with police,

or make any race-based inquiries. Comparativejuror analysis does not reveal a 

### 1Batson v. Kentucky, 476 U.S. 79, 85, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).No. 68075-1-1/2 

### questionablemotive, and there are no other"red flags" suggesting purposeful discrimination. The trial court correctly applied the existing legal standards, and Benson fails to demonstrate the trial court's finding that there was no purposefuldiscrimination

was clearly erroneous. We affirm the conviction, but remand for correction of sentencing errors. FACTS 

### On April 2, 2011, Benson took pills, drank alcohol, and then drove his car into the 

### back of Abdul Hared's stopped car. When Hared approached Benson, he smelled 

### alcohol. Officer Christopher Caron observed that Benson was unsteady on his feet and smelled of alcohol. Benson's speech was slow and slurred, and he admitted that he 

### had beendrinking.2 Hetried torecitethealphabet, butfailed. When OfficerNathan Shopay tried to talk to Benson, Benson had trouble focusing on any subject. Officer 

### Shopay and Officer Elliott Eastonboth testified that Benson appeared impaired.3 Benson refused to provide a breath sample. The police did not seek a warrant to obtain

a blood test. 

### Benson had three prior DUI convictions and one prior conviction for being in physical control of a vehicle while under the influence. Atthe time ofthe April2011 accident, his driver's license was revoked based on his convictions for three serious traffic offenses within a five-year period.



### 2Benson assigned errorto thetrial court's initial failure to enterfindings offact and conclusions of law in denying his pretrial motion to suppress his statements to police. However, those findings have since been filed, and Benson raises no issue relating to the findings in this appeal. 

### 3In addition tohis difficulty with conversation, theyboth observed thatBenson staggered, had trouble standing, and had alcohol on his breath.No. 68075-1-1/3 

### Based on his fourpriorqualifying convictions within the previous 10 years, 

## Benson was charged with felony DUI.4 He was also charged with reckless driving,5 and driving while license revoked in thefirst degree.6 Following ajurytrial, Benson was convicted as charged. 

### Benson's appeal concerns the State's peremptory challenge of juror 9, an African American woman. The court beganjury selection by asking several questions of the entire panel ofprospectivejurors. Then the court allowed the prosecutor and defense counsel two alternating 20-minute rounds ofquestioning. 

### One ofthe trial court's general questions was whether any panel member had an 

### "extremely unpleasant experiencewith a police officer."7 Seven individuals indicated 

## they had.8 Ofthose seven, onlythree,jurors 9, 16 and 23, were everseated in thejury box, where they were subjectto peremptory challenge. The prosecutor did not ask any ofthe prospectivejurors about their negative experiences with police. No one asked 

### juror16or 23 toexplain their answer to the negative experiences question.9 Benson's counsel had the final round ofquestioning, and askedjuror 9 to explain her negative experiences with police. Juror 9 explained that she had been stopped for expired license tabs, but the officer appeared to be suspicious of her: 

### 4RCW46.61.5055(4)(a). 5 RCW 46.61.500. 

### 6RCW46.20.342(1 )(a). 

### 7Report of Proceedings(RP) (Nov. 16,2011) at 550. 8These werejurors 9, 16, 23, 28, 36, 37, and41. 

### 9Juror23, who wasdismissed as a result ofa peremptory challenge by the defense, was asked about his response that he was once in an automobile accident. He answered, "Itwas [a] single car accident. Iwas by myselfon the side ofthe road, on my way to an AirForce Reserve meeting on a Saturday. An officer responded and got my license plates." RP (Nov. 16, 2011) at 614.No. 68075-1-1/4 

### JUROR: Mytabs were—I had bought them, butIdidn't put them on at the time. And I had four children with me. And when he 

### stopped me, Ihad asked what Ihad didwrong. And he said, "[W]ell,

... I noticed yourtabs are expired." And Ihad said, "[0]h." And at that time I thought Ihad bought the tabs. So, Ithought okay. But, then, he started to 

### kind oflooking in my car like there were other things going on. And I thought that am Igoing to get a ticket or, you know, Iwas willing to give 

### my information. But, Ifelt like when Igot stopped, okay, Ididn't have my tabs on, but Ialso feltlike when he stopped me, like he was looking for something else. AndIhad my childrenwith me. Ifeltlike, okay, whatelse did Ido wrong? 

### COUNSEL: Okay. Did the officertreat you fairly? JUROR: Ifelt Iwas treated fair in what was asked of me. He 

### stopped me. "Did you know that your tabs expired?" Yes, Idid, but Idid 

### not put them on. But, then Ifeltlike

... he was looking for something else besides that. So, Ifelt a little, Ididn't feel easy about that. So, I guess there was kind of a mixed feeling, but Ifelt like he stopped me, 

### okay. Ineeded to make sure that Ihad tabs. And then also, you know, he was looking kind ofpast me into my car, likemaybe something else 

## was going onJ101 Based on the trial court's predetermined procedure for jury selection, the State did not 

### have another round to pose additional questions to any of the prospectivejurors. The State exercised three of its peremptory challenges to jurors 4, 13 and 19, who were reluctant to convict without a numerical blood-alcohol test result. Jurors 4 

### and 19 were both Caucasian men. Benson did not object to the State's peremptory 

### challenge to juror 13, an African American woman.11



### 10RP(Nov. 16, 2011) at609-10. 

### 11 Benson's counsel explained that hedid not objectto theprosecutor's challenge forcause of juror 13 "because there was one [African American] left on the panel and the reason regarding the lack of [any blood] test." RP (Nov. 16, 2011) at 620.No. 68075-1-1/5 

### When the State exercised a peremptory challenge to juror 9, Benson objected, pointed out thatjuror 9 was the last remaining African Americanjuror on the panel, and 

### argued that the State did not have "anonracial reason" for its challenge.12 The trial court asked the prosecutorto explain the basis for its peremptory challenge. The prosecutor argued that in jury selection and pretrial motions, Benson's counsel had signaled the defense theory that the police investigation was inadequate or conclusory. The prosecutor was concerned thatjuror 9 would be more responsive to that argument based on her own prior negative experience with police: Juror number 9,1 completely liked her in my questioning of her, my first and second round. Then defense counsel in his second round talked to her about experience with a police officer. And she talked about being pulled overfor something, and how the police officer was looking for something else. And Igot the impression from what she was saying that she believed she was being harassed or interrogated further because she is a minority. And that is not an issue in this case. In fact, the victim in this case is a minority as well.

It's my concern that she will have some bad view of officers because they focused their investigation on the defendant, who is an African American male. The other gentleman [the victim] is an African male.1131 Benson's counsel argued that the prosecutor's explanation was "disingenuous," and claimed that otherjurors the State accepted were "in a similar circumstance": People said they had an interaction with other officers. Juror number 6 was cited by an officer. That sort ofthing. But Idon't believe that what juror number 9 indicated was to the extent that it really prejudiced her. She could have been pulled over, so there is no indication that this person



### 12RP(Nov. 16,2011) at 620. 13RP(Nov. 16,2011) at 621.No. 68075-1-1/6 

### had interaction with any ofthe officers involved in this particular case. So 

### it is the defense position that there is notsufficientgrounds to strike her.[14] Inresponse, the prosecutorexplained that she had been saving a peremptory challenge to excludejuror 28, a Caucasian man, on the same basis. Juror 28 indicated 

### inresponse to the trialcourt's initial general question that he had a priornegative experience with police. Inresponse to questioning by defense counsel, juror 28 

### explained further that while working as a truck driver, he feltthat a police officerunfairly blamed him for a collision with another truck. He believed that the officer might have known the other driver, or harbored a bias against him because his truck had an out-ofstate license plate. The prosecutor explained: Iwanted to say something for the record. Juror number 28 was another person, a Caucasian male, who identified that he had a bad interaction with the police officer when he got into an accident with another truck. And Iwas saving a strike for him had we gotten to him on that basis. Ifelt similarly to juror number 9. They both seemed to have a situation where they felt like they were the ones who were singled out and being picked on. 

### Iwas certainly going tostrike him, ifwe hadgotten there.'151 The trial court stated that it understood the State's concern with having jurors with prior negative experiences with police, but was sensitive that using that factor to excludejurors could be discriminatory in some cases: Iobviously don't know what the defense theory is, but we are not talking about a situation where somebody is going to allege that someone was stopped unfairly by police.



### 14RP(Nov. 16, 2011) at 622. 15RP(Nov. 16,2011) at 622.No. 68075-1-1/7 

### There may be, however, an allegation that the investigation was inadequate by the police, especially in a case where we don't have a [blood-alcohol test] result. 

### So Ican see why the State would care about having jurors who have not had negative interactions with the police. On the other hand, one 

### ofthe things that is so troubling about excusing African Americans from a 

### jury trial is that they have had the experience [that] not necessarily all our otherjurors have had. Iam very mindful of that. Inthis situation, Ithink this is a very tough case, to be honest.... Ijustthink that if juror 28 [was] African American, Iwould have been more 

### inclined to think that a challenge was not motivated]. . . by the nature of the defense.1161 In addressing the trial court's concerns, the prosecutor reemphasized that the 

### basis for its peremptory challenge was that itanticipated a defense argument that the officers conducted a cursory or incomplete investigation: Defense counsel kind of pushed that fact ofthe officer not really investigating or doing the test with the other driver or anything like that. So Ido think that becomes a significant issue. Iwant to be very clear. 

### That'swhy, that's the reasonfor my strikingjurornumber 9.[17] Based on the prosecutor's explanation, the trial court concluded that the State's peremptory challenge to juror 9 was reasonable, was not based on race, was not the 

### result ofpurposeful discrimination, and was made in goodfaith.18 Juror 9 was excused from thejury panel.
DISCUSSION Batson Challenge Benson assigns error to the trial court's determination that the prosecutor did not engage in purposeful discrimination. Benson fails to demonstrate reversible error. 

### 16 RP(Nov. 16, 2011) at623-24. 17RP(Nov. 16, 2011) at 624. 18RP(Nov. 16,2011) at 626.No. 68075-1-1/8 The equal protection clause guarantees a defendant the right to be tried by a jury 

### selected freefrom racial discrimination.19 A prosecutor's use of a peremptory challenge 

### based on raceviolates a defendant'srightto equalprotection.20 TheUnited States Supreme Court in Batson established the test to determine whether a juror was peremptorily challenged pursuant to discriminatory criteria. First, the defendant must 

### establish a primafacie case ofpurposeful discrimination;21 second, theburden shifts to the State toarticulate a race-neutral explanation for challenging thejuror;22 andthird, the trial court must decide whether the defendant has demonstrated purposeful 

### discrimination.23 Theultimate burden of persuasion that there has been purposeful discrimination rests with the defendant.24 The trial court's determination as to the 

### existence ofpurposeful discrimination will beupheld unless clearlyerroneous.25 In State v. Saintcalle, our Supreme Court recently advocated a change to the existing 

### Batson procedures inWashington, but declined to make any changes on the briefing

19 U.S. Const, amend. XIV; Batson, 476 U.S. at 85. 

### 20 State v. Cook, No. 67332-7-I, 2013 WL2325117, at *1 (Wash. Ct. App. May 28, 2013) (citing Batson, 476 U.S. at 86). 21 Batson, 476 U.S. at 93-96. 

### 22 Id,at 97-98. 23 IdL at 98. 

### 24 Rice v. Collins, 546 U.S. 333, 338, 126 S. Ct. 969, 163 L. Ed. 2d 824 (2006) (citing id.). 

### 25 State v. Hicks, 163 Wn.2d 477, 486, 181 P.3d 831 (2008): see also United States v. Roberts, 163 F.3d 998, 999 (7th Cir. 1998).

8No. 68075-1-1/9 

## before it.26 The lead opinion confirmedthe deference giventothetrial courtunderthe existing "purposeful discrimination" standard: 

### A trial court's decision that a challenge is race-neutral is a factual 

### determination based inpart on the answers provided by thejuror, as well as an assessment ofthe demeanor and credibility ofthejuror and the attorney. Batson, 476 U.S. at 98 n.21. The defendant carries the burden 

### ofproving purposefuldiscrimination. Id. at 93. The trialjudge's findings are "accorded great deference on appeal" and will be upheld unless proved clearly erroneous. Hernandez v. New York. 500 U.S. 352, 364, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). Deference to trial court findings is critically important in Batson cases because the trial court is much better positioned than an appellate court to examine the 

### circumstances surrounding the challenge. Further, deference is important because trialjudges must have some assurance that the rest ofthe trial 

### will not be an exercise infutility if itturns out an appellate court would 

### have ruled on a Batson challenge differently.'271 Under the existing Batson standard, where the State articulates a race-neutral 

### explanation for its challenge, the trial court is not required to analyze the firststep of 

### whether the defendant established a prima faciecase ofpurposeful discrimination.28 Here, the State explained thatjuror 9's past negative experience with a police officer would potentially make her more likely to accept a defense argument that the officers 

### focused on collateral considerations and did not conduct a thorough investigation of Benson. The second step ofthe process does not demand an explanation that is persuasive or plausible: "'Atthis [second] step ofthe inquiry, the issue is the facial



### 26 No. 86257-5, 2013 WL 3946038, at*12 (Wash. Aug. 1,2013) (indicating it would consider changing the Batson framework based on a future fully-briefed appeal advocating a new standard, or by court rule or statute). 

### 27 kL 

### 28 See.e.g., Statev. Luvene. 127 Wn.2d 690, 699, 903 P.2d 960 (1995) (citing Hernandez, 500 U.S. at 359).No. 68075-1-1/10 

### validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the 

### prosecutor's explanation, the reason offered will be deemed race neutral.'"29 Benson's argument that the State's proffered rationale was a pretext and mere proxy for race concerns the third step, which required the trial court to consider the 

### State's explanation and determine whetherthe defendant has demonstrated purposeful 

### discrimination.30 The prosecutor's explanation "mustbeviewed in thetotality ofthe prosecutor's comments."31 Thereviewing court considers theoverall circumstances, including anyred flags ofa discriminatory motive.32 Benson contends that the trial court erred by accepting the prosecutor's challenge ofjuror 9 based on her past negative experience with police, claiming that the proffered rationale was a pretext and mere proxy for race. However, the record does not support Benson's argument. A prosecutor's focus on jurors' perceptions ofpolice could be an improper proxy for race in jury selection. For example, in State v. Bishop, a case cited by Benson, the prosecutor excused a juror because she lived in a predominantly African American neighborhood, arguing that she would likely be anesthetized to violence and believe that



### 29 Purkettv. Elem, 514U.S. 765, 768, 115S. Ct. 1769, 131 L. Ed. 2d 834(1995) (alteration in original) (quoting Hernandez, 500 U.S. at 360). 

### 30 Batson, 476 U.S. at98; see also Reedv. Quarterman, 555 F.3d 364, 368(5th Cir. 2009); Purkett, 514 U.S. at 768 ("implausible orfantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination"). 

### 31 Cook, 2013 WL 2325117 at *3. 

### 32 See id. (prosecutor's peremptory challenge based in part on defense counsel's use ofthe term "brother" when speaking to an African Americanjuror and prosecutor's purportedly "confusing" one African Americanjuror with another "raises a red flag that there is some discriminatory intent").
10No. 68075-1-1/11 

## police areunfair.33 This rationale was rejected as "little morethan the assumptionthat one who livesin an area heavily populated by poor black people could notfairly try a 

## blackdefendant."34 Similarly, in Turnbull v. State, asecond casecited by Benson, the prosecutoraskedjurors iftheythoughtthatpolice racially profile people.35 Five African American individuals answered affirmatively, and the State exercised peremptory strikes 

### againstfour of them and a challengefor cause as to thefifth.36 TheTurnbull court concluded that the State's question was "subterfuge," noting that racial profiling was not

an issue in the case and that the question was not used to elicit the jurors' feelings about law enforcement.37 Because the total circumstances here are distinguishable from cases where prosecutors used pretextual criteria to purposefully discriminate, Bishop, Turnbull and 

### similarpretext decisions are not persuasive. Here, the State did not initiate the inquiry

as to negative experiences with police, did not inquire ofany prospectivejuror regarding such negative experiences, and did not ask anyjuror any questions related to race. In 

### addition, the State's beliefthat Benson would attempt to discredit the police investigation was realistic and related to the facts ofthe case. The primary witnesses

were police officers, and Benson's counsel's questions to potentialjurors signaled that 

### hewould dispute the adequacy ofthe investigation.38 These circumstances are not

33 959F.2d 820, 825 (9th Cir. 1992). 34 ]d 

### 35 959 So.2d 275, 276(Fla. App. 3 Dist. 2006). 36Id 37jd at 276-77. 

### 38 Attrial, Benson did challenge theadequacy ofthepolice investigation for failing to photograph the accident scene and obtain a blood test. Benson's counsel 11No. 68075-1-1/12 

### analogous to those in which a prosecutoremploys a "ruse" or "subterfuge" to drum up thinly-veiled racially discriminatory reasons to strike a juror. A comparison ofthe State's treatment ofotherjurors here likewise fails to 

### support a claim ofpurposeful discrimination. The State's reason for using a peremptory strike against a prospectivejuror may be a pretext for purposeful discrimination, and thus not race neutral, ifother prospectivejurors who made similar assertions were 

### seated asjurors.39 No two potentialjurors areidentical, but a meaningful comparison between jurors requirescareful consideration of the precise information in the record.40 Thus, ifa prosecutor's proffered reason for striking a minority panelist appliesjust as well to an otherwise similar nonminority panelist who is permitted to serve, "that is evidence tending to prove purposeful discrimination to be considered at Batson's third 

### step."41 And "[i]fthe State asserts thatit struck a blackjurorwith a particular characteristic, and italso accepted nonblackjurors with that same characteristic, this is evidence that the assertedjustification was a pretext for discrimination, even ifthe two 

### jurors are dissimilar in otherrespects."42 Benson suggests that all seven ofthe prospectivejurors who indicated that they had an unpleasant experience with police were comparable to juror 9. But of those seven, only jurors 9 and 16 were ever subject to challenge by the prosecutor. Accordingly, onlyjuror 16 is potentially comparable. Butjuror 16 was never asked to developed these arguments both on cross-examination ofthe officers and again in closing argument. 39 Cook, 2013 WL 2325117 at *3. 40 See Reed, 555 F.3d at 375-81. 

### 41 Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162L. Ed. 2d 196(2005). 42 Reed. 555 F.3d at 376.

12No. 68075-1-1/13 

### explain his unpleasant experience. The record does not support the proposition that juror 16 harbored the same belief that led to the prosecutor's peremptory challenge of juror 9, i.e., the perception that the police officers' investigation was inadequate due to 

### collateral circumstances. The prosecutor had no opportunity to follow up withjuror 16 in light ofjuror 9's answers to defense counsel's questions inthe final round of 

### questioning. Juror 16 andjuror 9 both reported negative experiences with police. But 

### this, ofitself, was not the basis for the challenge to juror 9. Benson offers no authority that the prosecutor had an obligation to anticipate the need to build a record as to juror 16.43 

### Inthe trial court and on appeal, the defense suggestsjuror 6 is a comparable 

### juror. But juror 6 did not respond when the judge asked whetherjurors had had an extremely unpleasant experience with the police and described his experience with 

### police as "extremely pleasant."44 Juror6described an incidentwhere he lost control of his car on the freeway and crashed, but the police responded and "treated mewell."45 This is not comparable to juror 9's experiences or answers. Notably, the State had the same rationale for excludingjuror 9, an African American, and juror 28, a nonminority. Both were more likely, based on their individual experiences, to be more responsive to a defense argument that the police officers who arrested Benson and investigated his offense allowed their biases to influence their investigation. This strongly supports the trial court's conclusion that the State's 

### 43 Failure toexplore atopic in voirdire may be someevidence ofpretext, but not where there are reasonable explanations for the failure. See Puckett v. Epps, 641 F.3d 657, 664-65 (5th Cir. 2011), cert, denied, 132 S. Ct. 1537, 182 L. Ed. 2d 174 (2012). 

### 44RP(Nov. 16, 2011) at 550. 

### 45RP(Nov. 16,2011) at 614.

13No. 68075-1-1/14 

### challenge was notbased on race. As recognized by the trial court, juror reactions to the limited investigation bythe police in this case were legitimate concerns for the prosecutor. The record on appeal does not reveal disparate treatment based on comparativejuror analysis. 

### Finally, in making its determination, the trial court also had the opportunity to observe the prosecutor's demeanor. "Batson requires thejudge to determine whether a race-neutral reason offered for a challenge is honest, and [trial court] judges are much better situated than appellatejudges to evaluate the honesty ofthe lawyers who 

## practice in [trial] court."46 And there were no red flags based upon otherconductbythe prosecutor suggesting a racial motive. Afocus on general attitudes toward police and 

### past negative experienceswith police might be used as proxy for race.47 But here, the specific responses by juror 9 and the explanation offered by the prosecutorwere 

### analyzed by the trial court. The trial court determined that the prosecutor had a good faith concern thatjuror 9 would be predisposed to the defense theory that police did not thoroughly and objectively investigate Benson's DUI, a concern the prosecutor also had regarding a nonminority member ofthejury panel. The record supports the factual 

### 46 Roberts. 163 F.3d at 1000 (even where "jury selection raises substantial questions about the conduct and candor of the prosecutorwho selected th[e]jury," the trialcourt's determination that the prosecutor's rationale was valid "must be accepted"). 

## 47 There areseveral decisions accepting consideration ofpastnegative police experiences as a proper basis for exercise ofperemptory challenges under Batson. See, e.g.. State v. Rhodes. 82 Wn. App. 192, 202-03, 917 P.2d 149 (1996) (negative contact with police was sufficient race-neutral explanation); People v. Booker, 51 Cal. 4th 141, 245 P.3d 366, 390 n.13, 119 Cal. Rptr. 3d 722 (2011); People v. Avila. 38 Cal. 4th 491, 133 P.3d 1076, 1113-17, 43 Cal. Rptr. 3d 1 (2006); People v. Gabler. 958 P.2d 505, 508 (Colo.App. 1997); State v. Jackson. 73 Conn. App. 338, 808 A.2d 388, 399- 

### 402 (2002); State v. Pendleton. 725 N.W.2d 717, 726 (Minn. 2007); Mitleider v. Hall. 

### 391 F.3d 1039, 1048 (9th Cir. 2004); United States v. Vaccaro. 816 F.2d 443, 457 (9th Cir. 1987).

14No. 68075-1-1/15 

### determination bythe trialcourtthat the prosecutor did not engage inpurposeful discrimination. Benson fails to demonstrate that the trial court rulingwas clearly

erroneous. Accordingly, we affirm his convictions. Sentence The State concedes that remand is required for the trial court to strike the term of 

### community custody. The State's concession is welltaken. The trial court imposed a 

### 60-month term ofincarceration for thefelony DUI, the statutory maximum.48 Thetrial court was required under RCW 9.94A.701(9) to reduce his term of community custody to zero.49 

### Benson also correctly claims that the State failed to prove his offender score by providing certified copies of his priorjudgments and sentences, and failed to prove that 

### his otherpriorconvictions did not "wash out" ofhis score.50 At his sentencing hearing, Benson agreed that his offender score should be calculated with the score of 9 plus, the maximum offender score class. The trial court calculated Benson's offender score as 

### 48 RCW46.61.502(6); RCW9A.20.021(1)(c) 

### 49 Statev. Bovd, 174Wn.2d 470, 473, 275 P.3d 321 (2012); Statev. Winborne, 167 Wn. App. 320, 329, 273 P.3d 454, review denied. 174 Wn.2d 1019 (2012). 

### 50 RCW 9.94A.525(2)(d) and (e)provide that"serious traffic convictions shall not be included in the offender score if, since the last date ofrelease from confinement... pursuant to a felony conviction, ifany, or entry ofjudgment and sentence, the offender spent five years in the community without committing any crime that subsequently results in a conviction" and that [i]fthe present conviction is felony driving while under the influence ofintoxicating liquor or any drug (RCW 46.61.502(6)) or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug (RCW 46.61.504(6)), prior convictions offelony driving while under the influence of intoxicating liquor or any drug, felony physical control of a vehicle while under the influence of intoxicating liquor or any drug, and serious traffic offenses shall be included in the offender score if: (i) The prior convictions were committed within five years since the last date of release from confinement... or entry ofjudgment and sentence; or (ii) the prior convictions would be considered 'prior offenses within ten years' as defined in RCW 46.61.5055."
15No. 68075-1-1/16 16 based on the agreement ofcounsel, the four prior DUI convictions proved at trial, and the prosecutor's statement of Benson's offender history. The State must prove a defendant's criminal history by a preponderance ofthe 

### evidence.51 Thetrial court "may rely on nomore information than isadmitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of 

### sentencing."52 To establish the existence of a [prior] conviction, a certified copy ofthe judgment and sentence is the best evidence. The State may introduce other comparable evidence only if itshows that the writing is unavailable for some reason otherthan the serious fault of the proponent. In that 

### case, comparable documents ofrecord ortrial transcripts may suffice.[53] Adefendantgenerally '"cannotwaive a challenge to a miscalculated offenderscore.'"54 The State was required to prove the validity of Benson's prior convictions, and to demonstrate that the convictions had not washed out. Because the four prior DUI convictions were elements ofthe felony DUI offense that Benson stipulated to at trial, any argument about the validity ofthose four convictions is waived. However, their inclusion in Benson's offender score is a different issue. The State failed to prove by a preponderance ofevidence that none ofthe prior convictions had washed out underthe 

### special washout rules applicable tofelony DUI.55 This was error. Benson could not 51 State v. Ford, 137Wn.2d 472, 479-80, 973 P.2d 452 (1999). 

### 52 RCW 9.94A.530(2). 53 State v. Rivers, 130Wn. App. 689, 698-99, 128 P.3d 608 (2005) (citing State v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002)). 

### 54 State v. Ross, 152 Wn.2d 220, 231, 95 P.3d 1225 (2004) (quoting In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002)). 

### 55 State v. Morales, 168Wn. App. 489, 492-501, 278 P.3d 668 (2012) (where felony DUI conviction falls within provisions of RCW46.61.502(6)(a), sentencing court must calculate defendant's offender score pursuant to washout provision of RCW 9.94A.525). 16No. 68075-1-1/17 

### agree to an incorrect offender score thatignored thosewashout rules.56 Weremand for the trial court to determine the correct offender score.57 We affirm the convictions, and remand for the limited purposes of allowing the State to prove Benson's offender score and to correct the erroneous sentence.

WE CONCUR:



### 56 State v. Weaver, 171 Wn.2d 256, 259-60, 251 P.3d 876 (2011) (where defendant did not object to offender score calculation at sentencing but contested the proofof criminal history used to determine his offender score on appeal, the issue was not waived because defendant did not "affirmatively acknowledge" criminal history); State v. Mendoza, 165 Wn.2d 913, 929, 205 P.3d 113 (2009) (State bears the burden to prove the existence of prior convictions by a preponderance ofthe evidence; "a defendant cannotwaive a challenge to a miscalculated offender score"). 

### 57 Where, as here, there was noobjection at sentencing and the State consequently has not had an opportunity to put on its evidence, it is appropriate to allow additional evidence at resentencing. Mendoza, 165 Wn.2d at 930; State v. Bergstrom, 162 Wn.2d 87, 97-98, 169 P.3d 816 (2007).

17