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State v. Marshall11/14/2003
Defendant was charged with felony DUI based on enhancement due to two prior DUI convictions. Defendant filed a motion to dismiss the felony DUI charge, arguing that the enhancement provision in the DUI statute was unconstitutional as applied to him because it violates the prohibition against ex post facto laws. The trial court denied his motion. Defendant appeals, and we affirm.
BACKGROUND
**2 The parties stipulated to the facts governing this appeal. On April 26, 2002, Defendant purchased a twelve-pack of beer at BK's convenience store in Huntington, Utah. The transaction was witnessed by another customer, Sergeant Gayle Jensen of the Emery County Sheriff's Department, who noticed that Defendant appeared to be intoxicated. Sergeant Jensen told Defendant not to drive and suggested that he call a friend to pick him up. The Defendant placed a phone *777 call, and Sergeant Jensen left. Soon after, however, Sergeant Jensen decided to return to BK's to ensure that Defendant did not drive. Upon his return to BK's, Sergeant Jensen observed Defendant drive away. Sergeant Jensen stopped Defendant, conducted field sobriety tests, and concluded that Defendant was intoxicated. Defendant was arrested and given an intoxilyzer test, which showed a blood alcohol concentration of .25, more than three times the legal limit in Utah. See Utah Code Ann. § 41-6- 44(2)(a)(i) (Supp.2003). An open container of alcohol was also found in Defendant's vehicle.
**3 Defendant was charged by information with driving under the influence of alcohol and having an open alcoholic beverage container in a motor vehicle. Because two or more of Defendant's nine prior DUI convictions fell within ten years of his April 2002 arrest, Defendant's DUI charge was enhanced from a class B misdemeanor to a third degree felony pursuant to the 2001 amendment to the DUI statute. See Utah Code Ann. § 41-6-44(3)(a)(i), (6)(a)(i) (Supp.2002). Pursuant to that amendment, effective April 30, 2001, a DUI conviction is a third degree felony if it occurs "within ten years of two or more prior [DUI] convictions." Id. § 41-6-44(6)(a)(i). Prior to the 2001 amendment, the felony enhancement provision applied to a third conviction within six years. See id. § 41-6-44(6)(a) (Supp.1999).
**4 Defendant filed a motion to dismiss the felony DUI charge. First, Defendant argued that enhancement of the offense violated his due process rights because in 1995 and 1998, when his prior DUI convictions were entered, he was not given "notice of the consequences of any future violation" and "could not have ... foreseen that in the year 2001 the Utah State Legislature would pass a law by which his [prior] convictions would be used to enhance th[e current DUI] charge to a third degree felony." Second, Defendant argued that the 2001 amendment could not be applied retroactively; thus, any offense committed prior to its enactment could not be used against him for enhancement purposes as that would violate the constitutional prohibition against ex post facto laws.
**5 The trial court rejected Defendant's ex post facto argument, concluding that "[t]he 2001 amendment does not affect the status of the previous offenses or convictions and does not increase their severity or penalty." Rather, the court held, the 2001 amendment merely "gives a more severe penalty [for the present offense] because of the prior convictions."
**6 As for Defendant's due process argument, the trial court noted that Defendant had nearly one year's notice that the enhancement provision had been amended. Thus, Defendant was on notice as of April 30, 2001, the effective date of the 2001 amendment, [FN1] "that if he committed a DUI after that date, his charge could be enhanced by any DUI convictions within a [ten] year period prior to the lat
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