DUI “Look Back” Has Some Judges Looking Backwards, Some Forwards

The 2016 Legislative Session brought new changes to the DUI laws in Kentucky. Prior to the passage of SB 56, DUI offenses were enhanced based on a five year “look back” window. If a person was convicted of their first DUI in 2010, they would have been eligible for DUI Second Offense if they were arrested again in 2015 or earlier. However, had they been arrested in 2016, they would have only been eligible for DUI First Offense. In response to traffic fatalities caused by drivers under the influence, the 2016 General Assembly extended the enhancement, or “look back” period, to ten years.

Pursuant to the new law, the hypothetical driver that was arrested in 2010 may now be eligible for DUI Second Offense if he was arrested this year, whereas before his punishment could not be enhanced. We emphasize “may” because currently a DUI defendant’s fate depends upon the county he was arrested in. Media reports have shown that the Circuit and District Judges in the Commonwealth are split over the interpretation of the new statute. The splits occur across counties, in which Warren County will not apply SB 56 retroactively, but Adair County will. However, the split also occurs within counties. Jefferson District Judge Sean Delahanty ruled that the law cannot be applied retroactively to those who pled guilty to their previous DUI offenses. “’Thousands of guilty pleas would be subject to set aside,’ if prosecutors tried to go back 10 years to enhance current DUI penalties.” Jefferson District Judge Anne Delahanty disagreed and applied SB 56. The judges in Fayette County are also in disagreement.

The dispute centers on Section 19 of the Kentucky Constitution, which prohibits the enforcement of ex post facto laws, and laws which violate the obligations of contracts. The Kentucky Supreme Court has previously held that DUI enhancement laws do not violate the prohibition of ex post facto. Prosecutors across the Commonwealth have relied on this case to argue that the new “look back” period is constitutional. Circuit Judge John Grise acknowledged that argument, but declared the statute unconstitutional as applied to those who pled guilty to their previous offenses. Citing Hensley v. Commonwealth, 217 S.W.3d 885, 886 (Ky.App.  2007), Judge Grise found the guilty plea to be a contract between the Commonwealth and the defendant. He further found that the five year enhancement was a term of that contract, and it could not be altered by the General Assembly. “[I]t is disingenuous to suggest the five year ‘look back’ played no role in a defendant’s decision to accept the plea agreement, when he is repeatedly told that is the consequence of waiving his right to self-incrimination.  If it plays no role, judges would not be required to include it in their colloquies.”

The Commonwealth's Attorney appealed Judge Grise’s decision to the Court of Appeals. However, the Commonwealth then moved to bypass the Court of Appeals and obtain discretionary review from the Kentucky Supreme Court. The Kentucky Supreme Court granted the motion on December 15, 2016, and a decision will be rendered sometime in 2017. The case number is Commonwealth v. Jackson, 2016-SC-000530.

If you have been arrested for Driving Under the Influence, it is important to know your rights. The attorneys at Barsotti & Manley, PLLC, are experienced with the DUI laws of the Commonwealth and are willing to help resolve your case in a favorable manner. Visit our website, www.bmlawky.com, or call us at (859) 429-3444.