Botkin v. CommonwealthBotkin v. Commonwealth
- Reporters:
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- Before:
- Leibson
Both Botkin and Storey were convicted in Fleming District Court of violating
Upon a further finding of two prior alcohol related motor vehicle convictions which were violations of
Botkin and Storey then moved our Court to grant discretionary review to consider their argument that using previous convictions for driving under the influence to enhance the penalty upon conviction under the new
per se
subsection violates constitutional prohibitions against
ex post facto
laws found in both the Federal Constitution, Article I, Sections 9 and 10, and the Kentucky Constitution, Section 19. They argue that because subsection (a) in
Botkin was charged with an offense occurring October 19, 1991, and Storey with an offense occurring August 11, 1991. Both dates are after the effective date of the new subsection.
Thus the issue presented is whether these appellants may be assessed a greater punishment than that provided for a first time offender because of previous offenses which are related in nature, but different in character. The seminal case on the subject is
Calder v. Bull,
3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), which includes within the ambit of the federal constitutional
ex post facto
clauses: “Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime
when committed.”
3 U.S. at 391. Emphasis added. Botkin and Storey did not receive a greater punishment than “the law annexed to the crime when [they] committed” it. However, because of their
status
as prior offenders of the driving under the influence statute as previously constituted, the offense they presently committed carried a greater punishment than they would have otherwise received.
“For purposes of this subsection, prior offenses shall include all convictions in this state, and any other state, or jurisdiction for operating or being in control of a motor vehicle while under the influence of alcohol or other substances that impair one’s driving ability, or any combination of alcohol and such substances, or while having an unlawful alcohol concentration, or driving while intoxicated. A court shall receive as proof of a prior conviction a copy of that conviction, certified by the court ordering the conviction.”
Thus, these offenders were punished as the law provided at the time when their present offenses were committed. Because of their status as prior offenders, the crime they presently committed was subject to a greater penalty than it would have been otherwise.
Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948) is controlling federal authority that the constitutional proscription against ex post facto laws does not extend to enhancing punishment for an offense committed after the effective date of a criminal statute by reason of status as a prior offender. This is so without regard to whether the prior offenses were for the same offense, the same type of offense, or for offenses of a different nature. There is no claim here that the ex post facto clause in the Kentucky Constitution calls for a different interpretation.
In
Gryger,
the United States Supreme Court upheld a recidivist statute prescribing enhanced punishment for an assault conviction, to “a life sentence as an habitual criminal,” based on prior convictions for
unrelated
offenses. One of the prior offenses not only
“Nor do we think the fact that one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act was passed, makes the Act invalidly retroactive [ex post facto ] or subjects the petitioner to double jeopardy. The sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one.” 384 U.S. at 732, 68 S.Ct. at 1258. .
A prime example of a statute using prior offenses to enhance punishment when a new offense is committed is
This case is not qualitatively different from Commonwealth v. Ball, Ky., 691 S.W.2d 207 (1985). In Ball, we rejected an argument that because the newly enacted (1984) version of the driving under the influence statute (the predecessor to the statute now under consideration) imposed greater penalties if the offender had previous driving under the influence convictions, it was an ex post facto violation. We state:
“The new statute merely recognizes that one previously convicted of driving under the influence has the status of a prior offender, and can be penalized for having that status.” 691 S.W.2d at 209.
Ball received an enhanced punishment based on a previous commission of the same type of offense, rather than, as here, of an offense similar in nature but different in character. But the key to understanding why the statute was not retroactive, i.e., ex post facto legislation, was that the offender was punished for an offense committed after, not before, the effective date of the statute.
The principle underlying the ex post facto prohibition is one of fair warning: was the offender on notice when the offense was committed that his conduct was prohibited, and on notice of the potential penalty, including an increased penalty based on previous offenses? If he was, there is no ex post facto violation. The statute presently under consideration provides fair warning before the offender commits the newly created per se violation that, if he commits the new offense, he will receive an enhanced punishment because of his status as a previous offender. In this posture, the ex post facto principle is not implicated.
A number of cases from sister states have addressed this principle in the context of amendments to driving under the influence statutes, including penalty enhancement based on previous offenses similar in nature. For example, in State v. Levey, 122 N.H. 375, 445 A.2d 1089 (1982), the New Hampshire Supreme Court upheld a conviction as a second offender for driving under the influence under a new statute making jail time mandatory upon a conviction for a second or subsequent offense. The court stated:
“Merely allowing a conviction obtained before the amendment to be used in the assessment of the penalty for a subsequent offense does not violate the constitutional prohibition against ex post facto laws.
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As of the effective date of the 1981 amendment ... the defendant was on notice as to what would happen if she were again convicted while intoxicated.” 445 A2d at 1090-91.
Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962 (1984), is to similar effect, stating that the previous offense had not been “increased by virtue of the amendment to the Vehicle Code.” 486 A2d at 964. Another Pennsylvania case, Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985) is even closer in point. It involved conviction for driving under the influence under a new per se statute making it “a crime to drive under the influence of alcohol if the amount of alcohol by weight in a person’s blood is .10% or greater,” Id. 488 A.2d at 300, which is the same as the new statute challenged in the present case. The Pennsylvania statute was challenged as unconstitutional on grounds it was a conclusive presumption unconstitutionally altering the rules of evidence, and was further challenged as “an unconstitutional ex post facto law” on grounds it enhanced punishment by reason of “the number of prior DUI convictions.” Id. at 302. First the court rejected the challenge to the conclusive nature of the statute. This was one of the lesser issues raised in the present case. The court stated:
“We find that the .10% rule does nothing more than specify a quantum of evidence which is legally sufficient to sustain proof of this element of the crime. So long as the connection between the test results and the ‘presumed’ fact of being under the influence meets the required standard of rationality under the due process clause, the statute passes constitutional muster.” Id. at 301.
Then the court rejected the ex post facto challenge stating the law is not ex post facto simply “because it applies to convictions under laws in force prior to the effective date of the New Law.” Id. at 302.
Here the offenders are not being punished for crimes committed prior to the effective date of the statute, but for a crime committed thereafter, albeit they received a greater punishment by reason of their status as prior offenders for other driving under the influence offenses, related in nature but different in character. The ex post facto clauses in our federal and state constitutions are not implicated.
The judgments of conviction are affirmed.
All concur.
Notes
. For discussion of the proof necessary to establish driving “under the influence,” see Hayden v. Commonwealth, Ky.App., 766 S.W.2d 956 (1989) and Bridges v. Commonwealth, Ky., 845 S.W.2d 541 (1993).