State v. Marshall11/14/2003
tions occurring prior to their enactment.
Id. at 723-24 (citations omitted). Cf. State v. Coleman, 540 P.2d 953, 953-54 (Utah 1975) (holding that defendant, who was "convicted of assault with a deadly weapon in the year 1969," could lawfully be charged with "possession of a dangerous weapon by a convicted person" because the latter offense occurred *781 after the applicable statute was enacted in 1973, and because "[t]he statute ... only has prospective application and in no way affects the 1969 conviction").
**16 In the instant case, the 2001 amendment does not retroactively " 'aggravate[ ]' " the crimes of Defendant's 1995 and 1998 DUIs, nor does it " 'inflict[ ] a greater punishment' " than that attached to those crimes when they were committed. 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 omitted). Accord State v. Daniels, 2002 UT 2, 44, 40 P.3d 611. The 2001 amendment went into effect April 30, 2001, see supra note 1, and Defendant committed the current DUI offense on April 26, 2002. Defendant's current conviction punishes him only for the April 2002 offense, albeit more seriously than if he would have committed the same offense at an earlier point in time. For these reasons, Defendant's ex post facto challenge is unavailing. [FN6]
FN6. We reject Defendant's argument under Utah Code Ann. § 68-3-3 (2000) for the same reasons. Section 68-3-3 states: "No part of these revised statutes is retroactive, unless expressly so declared." The 2001
amendment does not operate retroactively; therefore, it comports with section 68-3-3.
II. Due Process
**17 We now address the separate but closely related issue of whether application of the 2001 amendment violated Defendant's constitutional right to due process. [FN7] "Due process requires, at a minimum, adequate and timely notice." In re McCully, 942 P.2d 327, 332 (Utah 1997). This means that a criminal statute must be " 'sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.' " Bouie v. Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 1701, 12 L.Ed.2d 894 (1964) (quoting Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)).
FN7. A violation of the prohibition against ex post facto laws necessarily implicates due process concerns, as an individual is deprived of "fair notice ... when the legislature increases punishment beyond what was proscribed when the crime was consummated." Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981). We have already determined that the 2001 amendment is not an ex post facto law. In this section, then, we treat Defendant's due process claim only insofar as it is
advanced on a footing independent of his ex post facto argument.
**18 Defendant, who has managed to garner nine previous DUI convictions, does not argue that, at the time of the instant DUI offense, he was without notice that his conduct was prohibited by law. Indeed, any such argument would be unsuccessful, as it is well-settled that "[i]gnorance ... of [the] law is no defense to a crime." Utah Code Ann. § 76-2-304(2) (1999). Thus, Defendant was deemed to be on notice of the 2001 amendment to the DUI law, and the legal consequences thereof, as of its effective date of April 30, 2001, see Utah Motor Vehicle Act, ch. 289, § 41-6-44(6)(a), 2001 Utah Laws 1349, 1350, which was nearly one year before Defendant's current DUI offense, committed on April 26, 2002.
**19 Instead, Defendant maintains that, at the time of his 1995 and 1998 convictions, he was constitutionally entitled to "specific notice" that those convictions
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