Weathington

Defendant David Livingston Weathington appeals from conviction at jury trial of one count each of felony driving under the influence of alcohol with three or more priors for which he received a prison sentence, and misdemeanor driving on a suspended license. He claims that the court erred in instructing the jury and in refusing to bifurcate the trial of the priors. We agree with the latter contention, and therefore vacate the sentence. However, we affirm the judgment of conviction.

Facts

On April 14, 1990, appellant drove into a gas station and pulled up at the full-service bay to buy gas. He exited his car and asked the attendant, Richard Gill, to fill the gas tank and check the oil. Gill noticed a fuel line leak, so appellant moved the car away from the gas pumps to be fixed. Exiting again, appellant confided to the cashier, Chris Olsen, that he had drunk a six-pack and felt good, and inquired where he could find a liquor store. Both employees thought appellant was intoxicated: he had slurred speech and staggered when he walked.

There was a liquor store across the street; appellant went there and returned from five to ten minutes later with a wine cooler for himself…