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Hewett v. State

The trial court should have designated whether it was sentencing the defendant for her less safe DUI conviction or her per se conviction based on her blood alcohol concentration, since both DUI charges were based on the same conduct.

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A jury found Gene Hewett Jr. guilty under Count 1 of driving under the influence to the extent it was less safe for him to drive1 and guilty under Count 2 of driving a moving vehicle while his alcohol concentration was more than .10 grams a “per se” violation2 using the same factual scenario. Observing that the two counts were in the alternative and were to be sentenced as though they were one count, the judge gave Hewett a single sentence. The judge failed to identify which count merged into the other, or to identify on which count he was sentencing Hewett.

Where two DUI charges are based on the same conduct, the evidence will not support convictions of two separate offenses.3 Even though the trial court enters only a single sentence, if that sentence applies to both DUI counts of the accusation, by definition the court has convicted defendant of two counts of DUI.4 Here the court noted that it was giving Hewett a single sentence on the two counts, because the court considered the counts alternative and was treating them as though they were one count. The court did not merge one count into the other nor indicate that the sentence applied only to one count. Thus, the sentence applied to both counts and was improper.

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