"Ex Post Facto" Analysis of a California DUI Conviction Now Within 10 Years of a Subject California DUI Offense
At issue in California is the jurisprudential brick and mortar of the criminal justice system: The people’s right to a government that abides by the laws it both establishes and enforces. Constitutional temperance requires that the repugnance of an alleged crime cannot justify the departure from the bedrock of the United States Constitution. The Ex Post Facto Clause operates to constrain legislative power by demanding fundamental fairness illuminated by governmental restraint.
Prior to January 1, 2005, the State of California assured defendants convicted of Vehicle Code §23152(a)(b); §23153(a)(b) or Vehicle Code §23103 pursuant to §23103.5 (Alcohol related Reckless Driving) they would only be subject to having DUI convictions used to increase consequences of separate convictions of DUI were they to have had separate offenses, which resulted in convictions, within seven years from the date of a new offense. After the seven year period elapsed, they were no longer subject to having a DUI offense aggravated because the period of disability had elapsed. In other words, they were able to come out from under a cloud and walk in the sunshine.
The issue of whether an extension of a disability period was a violation of Ex Post Facto rules was first raised and rejected in People v. Sweet (1989) 207 Cal.App.3d 78where the Court held that the change from the five year prior statute to the seven year statute was not an Ex Post Facto violation. The same Court of Appeal that decided Sweet, re-affirmed it in People v. Forrester (Gilbert, J.) That Court also issued the decision in People v. Wohl (1990) 226 Cal.App.3d 270 (Gilbert, J.) (Applied reasoning of Sweet to felony prosecution) The flaws in the original Sweet opinion were revisited in Wohl and recently in Forrester which also failed to properly analyze the impact of Stogner.
Simply stated, Forrester, like Sweet held that increased punishments for DUI recidivists attached to the latest offense, not the prior offense, and as a result, were not retroactive or Ex Post Facto because the increased punishment was for the new case which occurred after the passage of the amendments to Vehicle Code §23540 et.seq. Some might call this sophistry. Others might argue that the Forrester/Sweet Court’s view of Ex Post Facto is entirely too narrow because that court’s analysis of retroactivity was anchored by its analogy to general recidivist case law. The analogy is imperfect and the cases relied upon are readily distinguishable because the recidivist statutes relied upon did not contain legislatively granted time limitations. DUI multiple offender statutes impose another, wholly independent element which requires that a defendant commit the predicate offense and a subsequent offense within the time originally defined by the legislature. Once that time had passed, any amendments to such legislation effects a change in that time limitation and is retroactive. The lynchpin of Sweet’s Ex Post Facto analysis is the notion that the extension of the disability period is not “retroactive” because it is based solely on the new violation that occurred after the change in the legislation. The fact that the previous, separate offense is an element of the new offense (See People v. Wohl, supra at 274)(Court assumed this “for sake of argument”) undermines Sweet’s logic as does an examination of the cases relied upon for that notion. The opinion cites People v. Venegas, (1970) 10 Cal.App.3d 814, 823 and People v. Weaver, (1984) 161 Cal.App.3d 119, 125 for the proposition that a statute does not function retroactively “merely because it draws upon facts antecedent to its enactment for its operation.” Sweet, supra at 571. Weaver cites Venegas for this proposition and Venegas cites Abrams v. Stone (1957) 154 Cal.App.2d 33, 40-41. Abrams is inapposite because it is a civil case and constitutional principles of Ex Post Facto simply do not apply. (See Calder, supra.) Abrams in fact supports Petitioner’s contention that application of the amended Vehicle Code §23540 to his time barred separate offense is retroactive as understood by Justice Chase in Calder. The Court noted:
This meaning of the word 'retroactive' applies both to the rule which disfavors the construction of a statute as having retroactive application (82 C.J.S., Statutes §§ 412, 414, p. 980 et seq.), and to the retroactive character of a statute as grounds of possible unconstitutionality. (16 C.J.S., Constitutional Law, § 414 et seq., p. 856 et seq.)‘ ( Holt v. Morgan, 128 Cal.App.2d 113, 116, 117). We fail to perceive what different legal effect was created by the statutory amendments here in question . . . . Abrams v. Stone, supra, at 40. (Emphasis added)
Thus, while it may be true that a statute is not retroactive in operation merely because it draws upon facts antecedent to its enactment for its operation, it is a retroactive law if its operation creates a different legal effect than that which occurred before. In California, the law at issue is both retrospective and retroactive. It is retrospective in that it refers in its operation to events, specifically separate DUI offenses, which occurred in the past. It is retroactive, in that it changes the conditions attached to some of those separate convictions by including time barred convictions which have expired prior to the amendments to Vehicle Code §23540 et. seq.
At the time of the California DUI Defendant’s predicate offense, he or she was assured that that offense would count as a sentence enhancement for no more than seven years. This provision, looked at from the perspective of this offense, is better termed a sunset clause. At some point in the future, the legislature has promised that the sun will set on that conviction, and Petitioner will be finally free from its shadow. Seven years then elapsed, and that offense, by grace of the legislature, ceased to count as a prior offense for any subsequent offenses. Now, the legislature, by passage of a new statute, seeks to extend the sunset clause that by its own terms has expired. In this way, changing the action of a law which has already by its own terms concluded its effect can not be correctly termed anything but retroactive.
The fact that the changed statute alters the consequences of a limitation period that had elapsed is the critical factor that distinguishes and makes inapposite the cases Sweet used for authority that the penalty attaches to the new crime and not the previous ones. The Court in Sweet cites to Gryger v. Burke (1948) 334 U.S. 728, and In re Foss (1974) 10 Cal.3d 910 for that proposition, but in both cases the recidivist statutes in issue had no sunset provisions, so there had never been a situation where the defendant had been sentenced under one provision, served that provision to completion, and then had the provision reimposed. Even in Venegas, supra, the court dealt with the passage of an entirely new law which affected the defendant, rather than one in which the defendant knew of, and endured his disability to completion, only to have it revived. Furthermore, Sweet’s reliance on People v. Lujan (1983) 141 Cal.App.3d Supp 15, is misplaced since Lujan dealt with an entirely different situation, that of the renumbering of the DUI offenses and the creation of the per se DUI offense. Nor does People v. Snook (1997) 16 Cal.4th 1210, shed any further light on the fundamental issue in this case, since Snook dealt only with the order of the defendant’s convictions relative to each other, not relative to changes in the law.
In contrast, the opinion in Calder explicitly recognized that Ex Post Facto principles may be violated by penal enhancements such as those applied in Vehicle Code §23540 et.seq. Justice Peterson noted:
[I]t appears, that ex post facto laws have an appropriate signification; they extend to penal statutes, and no further; they are restricted in legal estimation to the creation, and, perhaps, enhancement of crimes, pains and penalties. The enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or penalty; and therefore they may be classed together.” Calder, supra, at 697. (Emphasis added)
In Weaver v. Graham, supra the Court addressed whether a change to prisoners’ abilities to earn good time credits could be applied, not to deprive prisoners of good time credits already earned, but to affect the reciprocity of inmates’ good time credits as reward for good behavior after the law’s effective date. The Court distilled from the web of ex post facto jurisprudence the essence of the inquiry, to wit: “The critical question is whether the law changes the legal consequences of acts completed before its effective date.” Id. at 31. (Emphasis added) Here, unlike general recidivist statutes, the offending legislation changes the legal consequences of the predicate offense by extending the clock on its sunset provision.
Amicus, relies on Justice Chase’s original characterizations of what are Ex Post Facto violations enumerated as Category (2) and Category (4) in Calder v. Bull, (1798) 3 U.S. (Dall) 389. These two Categories of Ex Post Facto were analyzed and explained in Stogner v. California (2003) 539 U.S. 607, which held that a statute which revived a time-barred prosecution was a violation of Ex Post Facto because it (1) aggravated the original crime and made it greater than it was when committed because the defendant is subject to “punishment that the courts lacked the power to impose” before the amendment (Calder Category 2) (Stogner, supra at 615); and (2) it alters rules of evidence, and receives less, or different testimony “than the law required at the time of the commission of the offense in order to convict the offender” (Calder Category 4) (Stogner v. California supra at 612).
As applied to Forrester, the amending legislation aggravated his original 1997 offense and made it more burdensome because it extended the disability period attached to it after it had expired - raising it from the dead and depriving him of a vested defense, thereby subjecting Appellant to “punishment that the courts lacked the power to impose”.
The amending legislation changed the quantum of evidence necessary to establish the existence of a necessary quasi-element of the felony offense, namely the existence of a prior conviction for an offense which occurred within the proscribed period.
The amending legislation altered the rules of evidence as they pertained to proof of the 1997 offense. After December 31, 2004 a District Attorney could not have proven that person’s prior DUI came within the meaning of Vehicle Code §23550. Thus, because no “quantum of evidence” could have provided the requisite proof, the amending legislation which became effective on January 1, 2005 violates Ex Post Facto rules if applied retroactively.
Sweet and its progeny must be rejected in light of the United States Supreme Court decision in Stogner, supra and the amendment to Vehicle Code §23550 must be deemed to be a violation of the Ex Post Facto Clause when applied to prior offenses that were more than seven years old on January 1, 2005. As noted by the venerable Justice Learned Hand in Falter v. United States (1928) 23 F.2d 420, 425-426, cert denied, 277 U.S. 590:
Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life. The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is one, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it. Id. at 426.
The same can be said for extending the period of disability which subjects a citizen convicted of DUI to greater penalties for future violations. If that period of disability has lapsed, it can no longer be legislatively revived without violating the prohibition against Ex Post Facto laws. The general rule is that, where a complete defense has arisen under a statute limiting a criminal action, it cannot be taken away by a subsequent repeal or amendment. See, People v. Chesebro, (1990) 185 Mich.App. 412,416, 463 N.W.2d 134, 135-136; cited with approval by the Court in Stogner at 618.
The harm that would be manifested if the amending legislation could be applied to a person's 1997 DUI conviction is of the kind that the Ex Post Facto Clause seeks to avoid. By “its own rules” (see Carmell v. Texas (2000) 529 US. 513, 533), the legislature advised defendant that his prior DUI conviction could have an enhancement effect for seven years. After that period, not before, the legislature changed those rules. Since the legislature thereby acted after it had assured defendant that he “had become safe from its pursuit,” the legislative amendment would “seem . . . unfair and dishonest.” (Falter v. United States, supra, 23 F.2d at 426.) Further, since it did not act until the earlier limitations period had lapsed, the legislature deprived defendant of “fair warning” (Weaver v. Graham (1981) 450 U.S. 24, 28) of continued criminal liability after he could otherwise have assumed he had left behind the disabilities associated with his prior DUI conviction. As noted in Stogner, “[A] Constitution that permits such an extension, by allowing legislatures to pick and choose when to act retroactively, risks both ‘arbitrary and potentially vindictive legislation’ and erosion of the separation of powers . . .” Id. at 612.
How should courts in California interpret Stogner? The court in Forrester continues to perpetuate the flawed analysis of Sweet by stubbornly insisting that the retroactive increase in the look back period does not change the effect of the original predicate offense making its terms more onerous to a criminal defendant.
Stogner teaches us that retroactively reviving time barred statutes of limitations is Ex Post Facto when it aggravates the original crime or makes it greater than when committed. Applying the amendments to Vehicle Code §23540 et.seq. to offenders who had a predicate offense more than 7 but less than 10 years prior to the new offense undeniably expands the length of the “look back” or “wash out” periods for the predicate offense beyond the time that the legislature, by it’s grace, applied to this offense. The retroactive application of Vehicle Code §23540 to a person thereby aggravates his or her predicate crime and inflicts greater punishments where the offender was not, by law subject to them.