Missouri Persistent-Offender DWI: “Separate Occasions” Must Be Found by a Jury, Yet § 577.023.2 Survives Facial Challenge Through Second-Stage Jury Findings

1. Introduction

In State ex rel. Catherine Hanaway vs. Hellmann (Mo. banc Jan. 13, 2026), the Supreme Court of Missouri considered whether Missouri’s persistent-offender DWI scheme—particularly the procedure in section 577.023.2 requiring the judge to determine persistent-offender status “prior to submission to the jury outside of its hearing”—is facially unconstitutional after the U.S. Supreme Court’s decision in Erlinger v. United States, 602 U.S. 821 (2024).

The underlying criminal case involved defendant Johnson, charged with driving while intoxicated and alleged to be a persistent offender based on two prior DWI convictions (January 12, 2010, and June 2, 2021). The circuit court dismissed the class E felony DWI count, reasoning that Erlinger requires a jury (not a judge) to find beyond a reasonable doubt that the prior convictions occurred on “separate occasions,” and that section 577.023.2 provides no constitutionally adequate mechanism for a jury determination. The State sought an extraordinary writ to prohibit enforcement of that dismissal.

The central issues were (i) whether section 577.023.2 is facially invalid under the Fifth and Sixth Amendments in light of Erlinger, and (ii) whether the circuit court had authority to dismiss the felony count on that basis.

2. Summary of the Opinion

The Court made its preliminary writ of prohibition permanent, holding the circuit court lacked authority to dismiss the felony DWI charge on a facial constitutional theory. While the Court accepted that Erlinger entitles a defendant to a jury determination (unanimous, beyond a reasonable doubt) on the “separate occasions” fact that triggers enhanced punishment, it concluded section 577.023.2 is not facially unconstitutional because it can be applied constitutionally: after the court’s pre-submission determination, the “separate occasions” issue may still be submitted to the jury in a second-stage proceeding using existing Missouri procedures (Rule 27.02(s) and MAI-CR 4th 405.01–405.08).

3. Analysis

3.1. Precedents Cited

Erlinger v. United States, 602 U.S. 821 (2024)

Erlinger held that when a sentencing enhancement depends on whether prior convictions occurred on “different occasions” under the ACCA, the Fifth and Sixth Amendments require a jury to decide that fact beyond a reasonable doubt. The Missouri Court treated “separate occasions” in Missouri’s DWI persistent-offender definition as materially analogous to the ACCA’s “occasions different from one another,” because both increase sentencing exposure based on the relationship among prior offenses.

Importantly, the Missouri Court did not read Erlinger to require dismissal of charges brought under statutes that assign some preliminary role to the judge; rather, it read Erlinger to require preservation of the jury’s constitutional factfinding function when the fact increases the penalty range.

Alleyne v. United States, 570 U.S. 99 (2013) and Apprendi v. New Jersey, 530 U.S. 466 (2000)

The opinion describes Erlinger as emanating from Alleyne and Apprendi, which establish the general rule that “virtually any fact” increasing the prescribed range of penalties must be submitted to a jury and proved beyond a reasonable doubt. These cases supply the constitutional backbone for treating “separate occasions” as a jury question when it changes the grade of offense and the sentencing range.

State v. Johnson, 524 S.W.3d 505 (Mo. banc 2017)

This decision is the opinion’s key Missouri precedent for resolving the facial challenge. In State v. Johnson, a statute required the court to find predatory sexual offender predicate facts “prior to submission to the jury,” yet the Court held that pre-submission judicial determination “by itself” did not violate the right to jury trial because the jury could still later find the same predicate facts (and the statute therefore had constitutional applications). The statute would become unconstitutional only as applied if the jury were prevented from finding the facts required to raise the mandatory minimum.

The Court used State v. Johnson to reject Johnson’s argument that section 577.023.2 is facially invalid merely because it contemplates a pre-submission judicial finding outside the jury’s hearing. The decisive point: facial invalidity fails if there exists any constitutional set of circumstances for applying the statute—here, allowing the jury to make the “separate occasions” finding in a second stage.

State ex rel. Bailey v. Sengheiser, 692 S.W.3d 20 (Mo. banc 2024) and State ex rel. Zahnd v. Van Amburg, 533 S.W.3d 227 (Mo. banc 2017)

These cases framed the extraordinary nature and purposes of prohibition: preventing usurpation or excess of authority and avoiding irreparable harm. They supported the Court’s threshold decision that a writ could issue to correct a lower court’s unauthorized dismissal.

Salamun v. Camden Cnty. Clerk, 694 S.W.3d 424 (Mo. banc 2024); Donaldson v. Mo. State Bd. of Registration for the Healing Arts, 615 S.W.3d 57 (Mo. banc 2020); United States v. Rahimi, 602 U.S. 680 (2024)

These authorities supplied the facial-challenge framework: statutes are presumed valid; a facial challenger must show no circumstances exist under which the statute is valid; and it is insufficient to show only some unconstitutional applications. This framework is what allowed the Court to say: even if section 577.023.2 could be applied unconstitutionally (e.g., by excluding the jury from the “separate occasions” finding), it is not facially invalid if a constitutional pathway exists.

State v. Harris, 675 S.W.3d 202 (Mo. banc 2023)

The Court relied on State v. Harris to confirm the State lacked an adequate remedy by appeal when some—but not all—counts are dismissed, making an original writ an appropriate vehicle to obtain relief.

3.2. Legal Reasoning

1. Erlinger constitutional requirement applies to “separate occasions.”
   Because “separate occasions” is a fact that increases punishment exposure (including elevating a DWI from a misdemeanor to a felony and imposing additional sentencing restrictions), it must be found by a jury beyond a reasonable doubt under the Fifth and Sixth Amendments.
2. Section 577.023.2’s pre-submission judicial role is not automatically unconstitutional.
   Following State v. Johnson, the Court reasoned that a judge’s pre-submission determination does not itself eliminate the jury’s role. The constitutional violation occurs only if the procedure “removes” the jury from deciding the enhancing fact that changes the penalty range.
3. The statute has constitutional applications because Missouri procedure can provide a jury finding.
   The Court identified an existing procedural mechanism: second-stage proceedings under Rule 27.02(s), using MAI-CR 4th 405.01 through 405.08. Under this approach, after a guilty verdict on the DWI, the jury can be instructed and given a verdict form to decide the enhancement fact(s), including whether the prior IRTOs were committed on separate occasions, unanimously and beyond a reasonable doubt.
4. Therefore, the facial challenge fails and dismissal was unauthorized.
   Because there exists at least one set of circumstances in which section 577.023.2 can be applied constitutionally (judge makes a pre-submission finding, and the jury later makes the constitutionally required finding), the statute is not facially unconstitutional. The circuit court thus lacked authority to dismiss the felony count at the pleading stage on a facial theory; the proper course is to ensure a constitutionally compliant jury determination.

3.3. Impact

• Immediate procedural shift for persistent-offender DWI litigation.
  Trial courts must now ensure that, notwithstanding section 577.023.2’s language about a pre-submission finding outside the jury’s hearing, the “separate occasions” enhancement fact is ultimately decided by the jury beyond a reasonable doubt if it increases the punishment range.
• Preservation of charging authority; dismissal is disfavored as a remedy.
  The opinion signals that post-Erlinger constitutional concerns with enhancement factfinding generally call for adjusting trial procedure (e.g., bifurcation/second-stage submission), not invalidating the statute on its face or dismissing enhanced charges outright.
• Broader effect beyond DWI.
  The reasoning—especially the reliance on State v. Johnson and the “any constitutional application defeats facial challenge” principle—may influence challenges to other Missouri enhancement schemes where statutes allocate enhancement determinations to judges. Litigants can expect courts to ask whether a jury finding can be integrated through instructions and verdict forms, rather than striking the statute.
• Writ practice as a vehicle for the State.
  By invoking State v. Harris, the opinion reinforces that extraordinary writs remain a practical tool for the State to challenge partial dismissals that are otherwise unappealable for lack of a final judgment.

4. Complex Concepts Simplified

Writ of prohibition

An extraordinary order from a higher court stopping a lower court from acting outside its authority (for example, enforcing an improper dismissal).

Facial constitutional challenge

A claim that a statute is invalid in all its applications. The challenger must show there is no scenario in which the statute can be applied constitutionally.

“Separate occasions”

A fact about the relationship among prior offenses—whether they occurred at different times/events—used to determine whether enhanced punishment applies.

Second-stage proceeding (bifurcation)

A trial structure where the jury first decides guilt on the underlying charge, and only after a guilty verdict decides additional facts (often prior convictions or related enhancement facts) needed to increase punishment.

MAI-CR (Missouri Approved Instructions—Criminal)

Standardized jury instructions and verdict forms. The Court pointed to MAI-CR 4th 405.01–405.08 as the established method for presenting enhancement facts to the jury beyond a reasonable doubt.

5. Conclusion

The Court harmonized Missouri’s persistent-offender DWI statute with Erlinger v. United States by drawing a sharp line between (a) a statute being facially invalid and (b) a statute being applied in an unconstitutional way. Even if “separate occasions” must be found by a jury beyond a reasonable doubt, section 577.023.2 is not facially unconstitutional because Missouri procedure can accommodate a constitutionally required jury finding through a second-stage submission under Rule 27.02(s) and MAI-CR 4th 405.01–405.08. On that basis, the circuit court lacked authority to dismiss the felony DWI charge, and the Supreme Court of Missouri permanently prohibited enforcement of the dismissal order.