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Kentucky Supreme Court Upholds Enhancement of Old DUIs Using New 10 Year “Look-Back” Law

Kentucky defendants with DUI convictions any time within the last ten (10) years need to be aware of the change in DUI law, as well as the Kentucky Supreme Court’s decision to uphold the constitutionality of the new legislation. These changes also affect when prior DUI convictions can be expunged.

Prior to April 9, 2016, repeat DUI offenders were exposed to enhanced penalties for five (5) years pursuant to KRS 189A.010. However, when S.B. 56 became law on April 9, 2016, the “look-back” period for repeat offenders doubled to ten (10) years. Defense attorneys all over the state argued that DUI convictions older than five (5) years and committed prior to April 9, 2016 should be not used to enhance new offenses.

Under the prior version of the DUI statute (KRS 189A.010), previous DUI convictions only carried legal consequences for five (5) years. When defendants pleaded guilty to these DUI charges, prosecutors agreed that they would be subject to enhanced or greater penalties if found guilty and/or convicted of any future DUI offenses within five (5) years. Defendants entered pleas of guilty in reliance on this agreement with prosecutors and the plea agreements were approved by the courts.

As defense attorneys began challenging the application of the new ten (10) year look-back period to prior DUI convictions, several district courts and at least one circuit court agreed with the defense bar. Some Kentucky courts held that a contract was offered and made with each defendant upon acceptance of a plea and the contract could not be unilaterally broken because of a change in the law. In all DUI cases before April 9, 2016, prosecutors offered plea agreements that contained a five (5) year look-back provision and defendants accepted those agreements.

To allow prosecutors to put in writing terms which they had no intention of keeping seems to be a violation of fundamental fairness and the Due Process Clause of the United States Constitution. Boykin v. Alabama requires a court, at sentencing, to clearly warn a defendant if conviction of an offense may be used to enhance a subsequent offense in the future. Boykin v. Alabama, 395 U.S. 238 (1969). Failure of a court to do so usually means that the conviction cannot be used against the defendant for enhancement purposes in the future. See, e.g., Woods v. Commonwealth, 793 S.W.2d 809 (Ky. 1990). In the old DUI cases, Kentucky defendants had been advised and warned that convictions for DUI could be used to enhance a subsequent offense within a five (5) year period, not a ten (10) year period.

The Kentucky Supreme Court disagreed with the defense bar, holding that defendants “were not promised, nor were they reasonably induced to believe, that their pleas in these cases would never be used to enhance the penalty for a subsequent DUI conviction more than five (5) years in the future.” Commonwealth v. Jackson, 529 S.W.3d 739 (Ky. 2017). The Court held that the provisions of the plea agreements related only to the crime being pled and said nothing about the penalty for subsequent DUI violations. Id. at 7. The Court stated,

We do not believe it would be reasonable for a defendant pleading guilty under the agreement to infer from some combination of the two provisions that the future ramifications of his conviction would cease after five years. They were not told that, and the plea agreement contract does not say that.

Id. The Court reasoned that the provision about the five (5) year look-back period in the old plea agreements was “an informational provision whose primary purpose is to explain the range of penalties applicable to the specific conviction” and not “a promise by the Commonwealth limiting the future effect of the conviction so as to immunize the defendant forever thereafter from future legislative modifications of the look-back period.” Id. at 7-8.

The Court also pointed out that the defendants’ arguments centered around plea agreements and that a defendant who had been convicted at trial of DUI could not make the same argument, thereby producing an absurd result. Id. at 8. The Court also held that applying the ten (10) year look-back period to previous DUI convictions did not violate the requirements of Boykin v. Alabama.

A plea entered without knowledge of unanticipated and unforeseeable consequences that may not become manifest for many years does not have the constitutional significance of a plea entered without knowledge of its immediate foreseeable consequences, or in ignorance of the fundamental rights to remain silent, to a jury trial, and to confront witnesses.

Id. at 8-9. Based upon the foregoing, any Kentucky defendant with an old DUI conviction that occurred any time within the last ten (10) years will be subject to enhanced or greater penalties if found guilty of a new DUI charge. A prior DUI conviction will be used against defendants for ten (10) years even if they were told at the time of their plea that it would only be used against them for five (5) years. A requirement for expungement of a conviction is that the offense is not subject to enhancement or that the time for such enhancement has expired, so defendants will no longer be able to expunge DUIs that are less than ten (10) years old.