State v. Dumas12/15/1998
disadvantages the offender affected by it. Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 964 (1981). To be ex post facto, a statute must:
1) punish as a crime an act which was innocent when committed; 2) increase the burden of punishment for a crime after its commission; or 3) deprive one charged with a crime of a defense that was available when it was committed.
State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995), review denied (Minn. July 20, 1995) (citing Collins v. Youngblood, 497 U.S. 37, 52, 110 S. Ct. 2715, 2724 (1990)).
The district court concluded that Minn. Stat. § 169.121, subd. 3(c)(2), is unconstitutional as an ex post facto law under both prong (1) and prong (2). The parties agree that prong (3) is not relevant here.
In order to determine that a statute violates either prong (1), or prong (2), the court must find that the statute punishes, or increases the punishment for, the original act. Thus, here we must determine whether Minn. Stat. § 169.121, subd. 3(c)(2), punishes, or increases the punishment for, respondent's 1995 implied consent driver's license revocation. We conclude that it does not.
Under the United States Constitution, a statute that provides for enhanced penalties for a repeat offender does not punish the old offense; rather it stiffens the penalty for the latest crime. Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258 (1948); see also Nichols, 511 U.S. at 747, 114 S. Ct. at 1927 (enhancement statutes do not change the penalty for earlier convictions). Minnesota courts have reached a similar Conclusion. See State v. Findling, 123 Minn. 413, 415, 144 N.W. 142, 143 (1913) (finding that the increased punishment for the subsequent offense is not a punishment of the person for the first offense a second time, but a severer punishment for the second offense); State v. Willis, 332 N.W.2d 180, 185 (Minn. 1983) (holding that 1982 amendment to DWI law, which allowed past criminal convictions to enhance present crimes, did not punish the past crime, but "increased the possible penalty for the latest crime * * *.").
The only basis for distinguishing the holdings of Gryger, Findling, and Willis from the present case involves the ostensibly civil nature of the license forfeiture. While Minnesota has yet to rule on whether Findling and Willis apply where the original offense was civil rather than criminal , at least one jurisdiction has ruled that the same reasoning applies. See Commonwealth v. Murphy, 451 N.E.2d 95, 99 (Mass. 1983) (holding that use of a civil finding of guilt obtained before enactment of an enhancement law to enhance a subsequent offense did not violate ex post facto laws because the court saw "no distinction of constitutional dimension between a conviction and a previous assignment to an alcohol education program").
Because Minnesota has previously held that enhancement statutes do not punish the former act, and because at least one other jurisdiction has found that prior civil findings could form the basis for a subsequent criminal enhancement, we conclude respondent has failed to prove beyond a reasonable doubt that Minn. Stat. § 169.121, subd. 3(c)(2), is an unconstitutional ex post facto law.
DECISION
Statutes are entitled to a presumption of constitutionality. We conclude respondent has failed to establish beyond a reasonable doubt that Minn. Stat. § 169.121, subd. 3(c)(2), which enhances a DWI-related charge from a misdemeanor to a gross misdemeanor based on a prior implied consent license revocation, violates his constitutional right to counsel or the ex post facto clauses of the Minnesota or United States Constitutions.
Rever
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