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State v. Marshall11/14/2003
ce, in order to convict the offender."
Carmell v. Texas, 529 U.S. 513, 522, 120 S.Ct. 1620, 1627, 146 L.Ed.2d 577 (2000) (quoting Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798)) (emphasis in original). Accord State v. Daniels, 2002 UT 2, 44, 40 P.3d 611. The first and fourth categories are inapplicable here. Therefore, with a view to the second and third categories, we must decide whether the 2001 amendment to the DUI law retroactively " 'aggravates' " Defendant's prior DUI crimes or " 'inflicts a greater punishment' " than that attached to the crimes when they were committed. Id. (citation and emphasis omitted). We therefore turn our attention to our statutory DUI scheme and the 2001 amendment in particular.
**11 As stated above, two of Defendant's nine prior DUIs were used to enhance his tenth and current DUI offense to a third degree felony. The two prior DUI convictions relevant to this appeal occurred in December 1995 and September 1998. Our DUI statute has been amended numerous times over the years, reflecting society's increased intolerance for repeat DUI offenders. For example, at the time of Defendant's 1995 offense, a fourth DUI conviction was a third degree felony if committed within six years of the prior violations and if those violations occurred after April 23, 1990. See Utah Code Ann. § 41-6-44(7)(a) (1993). At the time of Defendant's 1998 offense, however, a third DUI conviction was a third degree felony if committed within six years of the prior violations and if those violations occurred after July 1, 1996. See Utah Code Ann. § 41-6-44(6)(a) (1998).
**12 In 1999, the Legislature deleted the date restriction contained in previous versions of the statute; therefore, a third DUI *779 conviction was a third degree felony if committed within six years of the prior violations, regardless of when those violations occurred. See Utah Code Ann. § 41-6-44(6)(a) (Supp.1999). Finally, in 2001, the Legislature amended the statute again, lengthening the time frame in which prior DUIs could be used for enhancement purposes from six to ten years. See Utah Code Ann. § 41-6- 44(6)(a) (Supp.2001). Thus, under the 2001 version of the statute--the version under which Defendant was most recently convicted--a third DUI conviction is a third degree felony if committed within ten years of two prior DUI convictions, regardless of when those prior convictions occurred. See id.
**13 Defendant argues that the 2001 amendment, as applied to him, constitutes a violation of the constitutional prohibition against ex post facto laws because it takes into account offenses committed before its enactment for purposes of enhancement. As a way of avoiding the felony enhancement provision of the 2001 statute, Defendant urges us to graft the cut-off date of the 1998 version of the statute onto the current version. Thus, under Defendant's view, the 2001 DUI statute should be read to allow felony enhancement only if Defendant was convicted of a third DUI within ten years of the prior DUIs, and only if those DUIs occurred after July 1, 1996. [FN3] But see Utah Code Ann. § 41-6-44(6)(a)(i) (Supp.2001) (containing no cut-off date and stating simply "[a DUI] conviction ... is a third degree felony if it is committed ... within ten years of two or more prior convictions under this section"). Of course, using the July 1, 1996 cut-off date would mean that Defendant's December 1995 DUI conviction could not be used to enhance his current DUI offense, for which he was convicted on October 1, 2002. We decline to adopt Defendant's peculiar interpretation of the 2001 statute, however, because we find no constitutional infirmity under the ex post facto clause of the United States Constitution.
FN3. This position is inherently inconsistent wi
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