Friday, September 19, 2014

Limited DUI lookback applies to all sentencing after July 1, 2011

Jay Norton won in State v. Reese, No. 106,703 (Kan. August 29, 2014), obtaining a new sentencing proceeding in a Johnson County DUI prosecution.  At issue was an amended DUI statute--effective July 1, 2011--which provides that the sentencing court is to take into account only those prior driving under the influence (DUI) convictions that occurred on or after July 1, 2001 for enhancement purposes.  Before this statute (and at the time of Mr. Reese's offense), Kansas statute provided for a lifetime lookback for enhancement purposes.  The question was whether that amended statute applied to all cases sentenced after July 1, 2011 (the effective date of the amended statute) or only to cases where the offense occurred after July 1, 2011.  The Kansas Supreme Court made a pretty exhaustive historical review of the DUI statutes in Kansas and adopted the former interpretation:
we find that K.S.A. 2011 Supp. 8-1567(j)(3) provides that the sentencing court is to take into account prior DUI convictions occurring during the limited look-back period and determine at the time of sentencing whether the current conviction is a first, second, third, fourth, or subsequent offense for purposes of imposing a sentence enhancement. Accordingly, a prospective application of the amended statute would be to apply its provisions to every DUI sentencing that occurs on or after July 1, 2011, the statute's effective date.
This appears to be pretty important--often the difference between a felony and a misdemeanor--for any persons who were sentenced for DUI after July 1, 2011.

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