State v. LeBlanc7/14/2000
On Appeal from District Court of Vermont, Unit No. 2, Chittenden Circuit
April Term, 2000
In this case, we address the issue we declined to reach in the recent decision, State v. Carpenter, 11 Vt. L. W. 78, 79 (2000), namely, whether the savings clause that accompanied the 1991 amendment to 23 V.S.A. § 1210(d) is available to a defendant who had already been convicted of driving under the influence (DUI) three times at the time of the amendment. This is an interlocutory appeal from a decision of the district court granting defendant Andre LeBlanc's motion to dismiss the DUI, fifth offense charge against him, and amending the charge to DUI, second offense. We reverse and remand.
On November 30, 1998, defendant was charged with DUI, fifth offense. He had previously been convicted of DUI on May 25, 1995, May 2, 1983, January 13, 1982, and October 17, 1981. The State sought a penalty of " ot more than $2,500.00 or not more than 5 years imprisonment or both." Thus, the State sought to punish defendant as a fifth offender, pursuant to 23 V.S.A. § 1210(d). While under § 1210(b) & (c), first and second DUI offenses are treated as misdemeanors, under § 1210(d), third and subsequent offenses are treated as felonies.
Defendant moved to dismiss the allegation that he was a fifth offender, arguing that, if convicted, he could be sentenced only as a second offender under the applicable statutes. In support of his motion, defendant first noted that the prior version of § 1210(d), applicable before July 1, 1991, provided that a person had to be convicted of DUI twice within fifteen years of his or her current conviction in order for the enhanced penalties then in effect to apply. Defendant then argued that, when § 1210(d) was amended in 1991, the Legislature deleted the fifteen-year forgiveness period, but added a savings clause that retained the forgiveness period in cases where the prior convictions occurred before July 1, 1991. Therefore, he argued, if convicted of the current offense, he would not have been convicted twice within fifteen years, the 1981, 1982 and 1983 convictions all having occurred more than fifteen years prior to any conviction on the pending offense. Under defendant's analysis, he could only be convicted of DUI, second offense, a misdemeanor.
The district court agreed, holding that, when sentencing a defendant for a third or subsequent DUI offense, a court cannot consider any pre-July 1, 1991, DUI conviction that, at the time of sentencing on the current DUI conviction, is more than fifteen years old. Thus, because defendant's 1981, 1982 and 1983 convictions all predated July 1, 1991, and because, if defendant were to be convicted on the current charge, more than fifteen years will have elapsed between his pre-1991 convictions and his current conviction, the court concluded that defendant's pre-1991 convictions could not "be used either to enhance the present charge to a felony level or at sentencing." Therefore, the court held that the charge had to be reduced from DUI, fifth to DUI, second.
The State filed a motion for interlocutory appeal, which the court granted. The court certified the following questions for our review:
What is the effect of the 7/1/91 amendment to 23 VSA section 1210(d) which eliminated the former 15 year forgiveness period for the use and computation of prior DWI convictions for the purposes of enhancing penalties on subsequent DWI convictions?
Does the legislative history contain a 'savings clause' which requires that as to convictions accrued prior to 7/1/91 they may not be considered for charging or sentencing in subsequent DWI's if older than 15 years from the date
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