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City Of Walla Walla v. Topel2/8/2001
Melvin Topel was charged with driving while under the influence of an intoxicating liquor and/or drug (DUI) in February 1999. Seven years earlier, he had received a deferred prosecution for a prior DUI. When he requested a second deferred prosecution for the 1999 charge, the court denied the request, based on changes to the deferred prosecution statute that became effective January 1, 1999. The changes to the statute limit a DUI defendant to one deferred prosecution. Mr. Topel appeals, contending that the amendments to the statute are ambiguous and can be reasonably interpreted to provide one deferred prosecution after the effective date of the amendments. Alternatively, Mr. Topel argues that the amendments violate ex post facto principles because the amendments change the consequences of his first DUI. We conclude the trial court did not err by ruling Mr. Topel was not eligible for a second deferred prosecution of a DUI under RCW 10.05.010. We further conclude that the amendments to RCW 10.05.010 and RCW 10.05.160 do not violate ex post facto principles. We affirm Mr. Topel's conviction.
FACTS
Melvin Topel was charged in February 1999 with a DUI. Previously, Mr. Topel had been charged in May 1992 with a DUI and was granted a deferred prosecution on that charge in July 1992. The charge was dismissed after he completed the deferred program in April 1995.
After his arrest on the current charge, Mr. Topel petitioned in the Walla Walla District Court for a deferred prosecution. The court denied the request based on the January 1, 1999 amendments to the statute governing deferred prosecution.
RCW 10.05.010 was revised to read:
A person charged with a traffic infraction, misdemeanor, or gross misdemeanor under Title 46 RCW shall not be eligible for a deferred prosecution program unless the court makes specific findings pursuant to RCW 10.05.020. Such person shall not be eligible for a deferred prosecution program more than once in any five-year period.
Laws of 1998, ch. 208, sec. 1. RCW 10.05.160 was also revised:
The prosecutor may appeal an order granting deferred prosecution on any or all of the following grounds:
(1) Prior deferred prosecution has been granted to the defendant within five years; Laws of 1998, ch. 208, sec. 4.
The court interpreted the amendments to preclude Mr. Topel from a deferred prosecution because he already had his May 1992 DUI prosecution deferred.
After the court denied his deferred prosecution request, Mr. Topel stipulated to the facts and the court found him guilty of the February 1999 DUI charge. He appealed the denial of his deferred prosecution to the superior court in Walla Walla County. The superior court affirmed the district court and entered a decision and mandate. Mr. Topel was granted discretionary review by this court.
ANALYSIS
'An appellate court reviews issues regarding statutory construction de novo.' State v. Hahn, 83 Wn. App. 825, 831, 924 P.2d 392 (1996); State v. Kuhn, 74 Wn. App. 787, 790, 875 P.2d 1225 (1994). 'A court interprets a statute so as to give effect to the Legislature's intent in creating the statute.' Cherry v. Municipality of Metro. Seattle, 116 Wn.2d 794, 799, 808 P.2d 746 (1991) (citing Longview Fibre Co. v. Cowlitz County, 114 Wn.2d 691, 696, 790 P.2d 149 (1990)). ''When the words in a statute are clear and unequivocal, this court is required to assume the Legislature meant exactly what it said and apply the statute as written.'' In re Recall of Pearsall-Stipek, 141 Wn.2d 756, 767, 10 P.3d 1034 (2000) (quoting In re Custody of Smith, 137 Wn.2d
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