To repeal section 577.023, RSMo 1994, relating to prior and persistent intoxicated driving offenders, and to enact in lieu thereof two new sections relating to the same subject, with penalty provisions.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF MISSOURI, AS FOLLOWS:

     Section A. Section 577.023, RSMo 1994, is repealed and two new sections enacted in lieu thereof to be known as sections 577.023 and 577.024, to read as follows:

     577.023. 1. For purposes of this section, unless the context clearly indicates otherwise:

     (1) An "intoxication-related traffic offense" is driving while intoxicated, driving with excessive blood alcohol content, or driving under the influence of alcohol or drugs in violation of state law or a county or municipal ordinance, where the judge in such case was an attorney and the defendant was represented by or waived the right to an attorney in writing;

     (2) A "persistent offender" is a person who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses, where such two or more offenses occurred within ten years of the occurrence of the intoxication-related traffic offense for which the person is charged; and

     (3) A "prior offender" is a person who has pleaded guilty to or has been found guilty of one intoxication-related traffic offense, where such prior offense occurred within five years of the occurrence of the intoxication-related traffic offense for which the person is charged.

     2. Any person who pleads guilty to or is found guilty of a violation of section 577.010 or 577.012 who is alleged and proved to be a prior offender shall be guilty of a class A misdemeanor.

     3. Any person who pleads guilty to or is found guilty of a violation of section 577.010 or 577.012 who is alleged and proved to be a persistent offender shall be guilty of a class D felony.

     4. No court shall suspend the imposition of sentence as to a prior or persistent offender under this section nor sentence such person to pay a fine in lieu of a term of imprisonment, section 557.011, RSMo, to the contrary notwithstanding, nor shall such person be eligible for parole or probation until he has served a minimum of forty-eight consecutive hours' imprisonment, unless as a condition of such parole or probation such person performs at least ten days of community service under the supervision of the court in those jurisdictions which have a recognized program for community service.

     5. The court shall find the defendant to be a prior offender or persistent offender, if:

     (1) The indictment or information, original or amended, or the information in lieu of an indictment pleads all essential facts warranting a finding that the defendant is a prior offender or persistent offender; and

     (2) Evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt the defendant is a prior offender or persistent offender; and

     (3) The court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a prior offender or persistent offender.

     6. In a jury trial, the facts shall be pleaded, established and found prior to submission to the jury outside of its hearing.

     7. In a trial without a jury or upon a plea of guilty, the court may defer the proof in findings of such facts to a later time, but prior to sentencing.

     8. The defendant shall be accorded full rights of confrontation and cross-examination, with the opportunity to present evidence, at such hearings.

     9. The defendant may waive proof of the facts alleged.

     10. Nothing in this section shall prevent the use of presentence investigations or commitments.

     11. At the sentencing hearing both the state and the defendant shall be permitted to present additional information bearing on the issue of sentence.

     12. The pleas or findings of guilty shall be prior to the date of commission of the present offense.

     13. The court shall not instruct the jury as to the range of punishment or allow the jury, upon a finding of guilty, to assess and declare the punishment as part of its verdict in cases of prior offenders or persistent offenders.

     14. Evidence of prior convictions shall be heard and determined by the trial court out of the hearing of the jury prior to the submission of the case to the jury, and shall include but not be limited to [evidence of convictions received by] a search of the records of the Missouri uniform law enforcement system maintained by the Missouri state highway patrol. The record search shall include any alcohol or drug-related driving offense, plea of guilty, finding of guilty, suspended imposition of sentence, suspended execution of sentence, probation, conditional sentences and sentences of confinement, whether in violation of state law or a county or municipal ordinance. After hearing the evidence, the court shall enter its findings thereon. A conviction of a violation of a municipal or county ordinance in a county or municipal court for driving while intoxicated or a conviction or a plea of guilty or a finding of guilty followed by a suspended imposition of sentence, suspended execution of sentence, probation or parole or any combination thereof in a state court shall be treated as a prior conviction.

     577.024 1. No court of law shall accept any plea of guilt to an intoxication-related traffic offense where the charge has been reduced from an offense with a greater penalty or impose a sentence for any intoxication- related traffic offense unless the court has first reviewed the criminal history of the defendant through a record search as provided in section 577.023.

     2. The defendant in any intoxication-related traffic offense prosecution shall have a duty to inform the court of any prior convictions, pleas of guilt or findings of guilt to an intoxication-related traffic offense. Failure to inform the court after being informed of this law shall be a class A misdemeanor.

     3. The term "intoxication-related traffic offense" shall have the meaning given in section 577.023.