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City Of Walla Walla v. Topel2/8/2001
ds ex post facto principles because the amendment renders his 1992 deferred prosecution the only deferred prosecution he may ever use. A statute violates ex post facto laws if it imposes punishment for an act which was not punishable when committed or increases the punishment that was attached to the crime when it was committed. State v. Ward, 123 Wn.2d 488, 496, 869 P.2d 1062 (1994); City of Richland v. Michel, 89 Wn. App. 764, 773, 950 P.2d 10 (1998).
A statute is not retroactive merely because it relates to prior facts or transactions where it does not change their legal effect. Nor is a statute retroactive 'because some of the requisites for its actions are drawn from a time antecedent to its passage or because it fixes the status of a person for the purposes of its operation.' State v. Scheffel, 82 Wn.2d 872, 879, 514 P.2d 1052 (1973). In this case, the amendments to RCW 10.05.010 and RCW 10.05.160 do not increase or enhance punishment for a DUI crime committed before the effective date. Rather, these provisions apply prospectively to new DUIs committed after January 1, 1999, and affect the punishment for those offenses. State v. McClendon, 131 Wn.2d 853, 861, 935 P.2d 1334 (1997).
A defendant is deemed on notice of a change in the law upon its effective date. For example, in Scheffel, 82 Wn.2d at 878, the defendants each had two convictions for driving while intoxicated. Subsequently, the Washington Habitual Traffic Offenders Act, chapter 46.65 RCW, became law. Upon each defendant's third conviction, they were sentenced under the new act. They complained, contending that the act was applied retroactively because it imposed a new penalty on previous acts. The court disagreed, and stated that upon the effective date of the new act, the defendants were deemed 'on notice that if they accrued one more violation within the statutory period, they would be classified as habitual offenders. . . . But for the additional violation they would not be classified as habitual offenders.' Scheffel, 82 Wn.2d at 878.
Similarly, in City of Richland v. Michel, the defendant had entered into deferred prosecution at the time when the law provided that a deferred prosecution could be used to enhance a sentence for additional offenses within a five-year period. Subsequently, the law was changed. The new statute provided that a person convicted of a DUI and who has one prior offense within five years must be punished by imposition of at least 45 days in jail, among other penalties. The new statute defined prior offenses as including deferred prosecutions. Michel, 89 Wn. App. at 768.
Mr. Michel received a second DUI after the new law took effect. He complained that the new law constitutes an ex post facto violation. The court held that as with the habitual offender statutes, Mr. Michel was on notice upon the effective date of the new law that an additional violation would enhance the penalty. Id. at 773.
In this case, Mr. Topel should be deemed on notice that as of January 1, 1999, a DUI charge would preclude any additional deferred prosecutions. This is not an enhanced punishment for his former DUI, but rather a new penalty for any future DUI violations after January 1, 1999. As the court noted in Scheffel, '{i}t was the final violation which brought them within the ambit of the act.' Scheffel, 82 Wn.2d at 878. The amendments to RCW 10.05.010 and RCW 10.05.160 do not violate ex post facto principles nor are the amendments retroactive.
Affirmed.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant
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