State v. Marshall11/14/2003
est offense." Thus, the trial court concluded that application of the 2001 amendment to his 2002 offense did not violate Defendant's rights on either ex post facto or due process grounds and denied Defendant's motion to dismiss.
FN1. The trial court mistakenly noted, as does the State on appeal, that the effective date of the 2001 amendment was July 1, 2001; however, the amendment actually went into effect April 30, 2001. See Utah Motor Vehicle Act, ch. 289, § 41-6-44(6)(a), 2001 Utah Laws 1349, 1350; amendment notes, Utah Code Ann. § 41-6-44 (Supp.2003). Because Defendant's DUI arrest occurred on April 26, 2002, Defendant had nearly one year's notice of the 2001 amendment.
**7 With the trial court's approval, Defendant thereafter entered a conditional plea of no contest, reserving his right to appeal the trial court's denial of his motion to dismiss the third degree felony DUI charge. See generally State v. Sery, 758 P.2d 935, 938-39 (Utah Ct.App.1988). In exchange for his no contest plea, the State dropped the open container charge.
ISSUES AND STANDARDS OF REVIEW
**8 We must determine whether the trial court properly denied Defendant's motion to dismiss on the basis that the 2001 amendment to the DUI statute violates neither the due process nor ex post facto provisions *778 of the United States Constitution. [FN2] "[T]he propriety of a trial court's decision to grant or deny a motion to dismiss is a question of law that we review for correctness." Tiede v. State, 915 P.2d 500, 502 (Utah 1996). "[W]hether legislation violates the ex post facto clause [ ] of the ... United States Constitution[ ] is also a question of law, which we review for correctness, giving the trial court no deference." State v. Daniels, 2002 UT 2, 37, 40 P.3d 611. Likewise, "constitutional arguments regarding ... due process present questions of law" that we review for correctness. State v. One 1980 Cadillac, 2001 UT 26, 8, 21 P.3d 212. Accord State v. Frausto, 2002 UT App 259, 14, 53 P.3d 486, cert. denied, 63 P.3d 104 (Utah 2002).
FN2. As we " 'recognize[ ] no distinction between the protection against ex post facto laws provided by the Utah and the United States Constitutions,' " State v. Daniels, 2002 UT 2, 42, 40 P.3d 611 (citations omitted in original), and as Defendant "has not adequately set forth any separate legal analysis" under the due process provisions of the Utah Constitution, State v. Davis, 972 P.2d 388, 392 (Utah 1998), we do not separately analyze Defendant's state constitutional claims.
ANALYSIS
**9 Defendant renews his ex post facto and due process arguments on appeal, i.e., Defendant argues that enhancement of his current DUI offense based on his prior DUI convictions violated his rights under the ex post facto and due process clauses of the United States Constitution. We now consider each of Defendant's arguments.
I. Ex Post Facto
**10 "Article I, § 10, of the Constitution prohibits the States from passing any 'ex post facto Law.' " California Dep't of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588 (1995). The United States Supreme Court has consistently identified four types of criminal laws that fall within the ex post facto prohibition:
"1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.
2d. Every law that aggravates a crime, or makes it greater than it was, when committed.
3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.
4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offen
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