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State v. Smith4/23/2003
chapter [driving under the influence] the costs accrued for the withdrawal and chemical analysis of blood or other bodily substance, and witness fees and expenses in connection therewith, shall be taxed by the court as costs in the action and shall, if the county is to have a lien for fees paid to counsel for an indigent, be included in the lien filed; otherwise it shall, with such other costs as the court imposes, be entered in the judgment as provided in chapter 23A-27. (emphasis added).
[ .] A "statute with more specific language relating to a particular subject will prevail over the general terms of another statute." In re Guardianship for T.H.M., 2002 SD 68, 7, 640 NW2d 68, 71. SDCL 32-23-17 is contained in the chapter specifically relating to DUI convictions. Its provisions state that the witness fees in connection with the chemical analysis of blood relating to a DUI conviction are recoverable. Whereas, SDCL 23A-27-26 is a general provision relating to criminal procedure. Pursuant to SDCL 32-23-17 the costs were properly awarded.
ISSUE THREE
[ .] Whether the trial court improperly considered a past DUI conviction
[ .] Smith alleges that a prior conviction which occurred in 1994 is void for enhancement purposes. At the time of that conviction, SDCL 32-23-4.1 contained a five-year look back period for sentence enhancement. However, the legislature subsequently amended the look back period to ten-years in 2001. See SDCL 32-23-4.1. Smith alleges that use of this conviction for enhancement purposes violates due process and is an ex post facto application of the law. This exact argument was recently rejected by this Court in State v. Arguello, 2002 SD 157, 655 NW2d 451.
[ .] Though counsel here did not have the benefit of the Arguello decision, this Court expressly determined: SDCL 32-23-4.1 operates prospectively, applying past convictions to determine the punishment for a conviction that occurs down the road. At all times, the punishment is for the then existing conviction and not for the prior convictions. Id. 13.
The legislative modification and its subsequent application to a repeat offender does not violate the constitution. Id. 14.
[ .] We affirm
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