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Cornelison v. Commonwealth7/7/2000
he ex post facto clause of the United States Constitution. Although recognizing that the statute had been effective for more than nine months prior to his third offense, and thereby conceding that an "argument could be made that had fair warning that a third offense DUI is potentially a felony offense," Cornelison contends that "there is no evidence in the record that he knew this at the time of his second conviction." He complains that the judge did not warn him after his second conviction that his next offense could possibly be a felony.
Under the facts of this case, there clearly are no ex post facto implications. The statute as amended effective July 15, 1998, was in effect one day prior to Cornelison's second DUI offense, and several months prior to his third offense. The Legislature in amending KRS 189A.010(4)(c) did not create a new offense, but merely enhanced the penalties for third offenders with excessive amounts of alcohol in their system. Cornelison cannot avoid the statute's application merely because the trial court failed to warn him of the consequences of a third offense.
Accordingly, the judgment of the Madison Circuit Court is affirmed.
ALL CONCUR.
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