Why is the washout or look-back period for the GA DUI Law NOT considered Ex Post Facto?
Why is the washout or look-back period (10 years) for the 2008 amended DUI Law (O.C.G.A. Section 40-6-391) not considered an Ex Post Facto law for cases that occured before 2008 under the five year look back period? More specifically, If you had a DUI on July 2, 1998 and get another on July 1, 20...
Why is the washout or look-back period (10 years) for the 2008 amended DUI Law (O.C.G.A. Section 40-6-391) not considered an Ex Post Facto law for cases that occured before 2008 under the five year look back period?
More specifically, If you had a DUI on July 2, 1998 and get another on July 1, 2008, prosecutors consider this your second offense. Even though under the old law, the look back expired in 2003. It seems to me that using the law in this manner is in direct violation of having an Ex Post Factor law.
However, the 2008 amended law states that it takes effect for offenses on or after July 1, 2008. This statement applies to all sections within this law, but prosecutors are using the look back period to increase punishments for convictions prior to this date. When one looks at the words on or after, these words does not mean or equate to the word prior. I could not find anything in the State of Georgia that addresses this issue either as an official opinion or under the rule of law.
It would make sense to prosecute offenders of this law in the following manner:
1) If one is convicted of DUI prior to July 1, 2008, the look back period of 5 years from the prior law shall be used up to but not past July 1, 2008. (If the look back period has already expired under the previous law, it should not be considered an offense under the amended law.)
Example: John Doe was convicted for DUI on January 2, 2003 (1st Offense under old law). January 2, 2008 his look back period expires under the old law. John Doe gets convicted of another DUI on July 2, 2008, in which he is sentenced as a first offender (even though its truly his second).
2)Every conviction on or after July 1, 2008 will the look back period of 10 years.
Example: John Doe gets convicted of another DUI on July 2, 2008, in which he is sentenced as a first offender. John Doe gets convicted of another DUI on July 1, 2018, in which he is sentenced as a second offender.
I would like to believe that one would be charged/sentenced as a 1st offender under these circumstances stated above but they are not. Could someone explain why this is the case and why the law is not considered an ex post facto law?
Please do not respond with personal answers, as this is a question regarding law and opinions how the law is interpreted. Stupid Answers saying all people that violate the law should burn in hell does not answer the questions displayed.
It appears that the law is properly written but the prosecutors are pushing the envelope. One would hope some judges note the ex post facto effect, and force compliance with the Constitution. However, Article I, Section 9 limits Congress, not the Georgia Legislatur, so there may be some wrangling necessary.
The definition of an ex post facto law comes from Calder v. Bull in 1798 in the opinion written by Justice Chase:
"1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal 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."
There can be argument made that this law does not fit that definition. If it modifies the look-back period for crimes committed after its effective date, and those crimes were STILL crimes in that lookback period, and their punishment is not changed, it may not even fit the 2nd case cited. But this is a matter for the courts, and perhaps prosecutors are in fact doing due diligence to make a case that forces the issue. Laws are not declared unconstituytional by review, most of the time, but rather by a court case challenging them.
It’s not ex post facto because it only applies to new DWI convictions committed after the date the law went into effect. The new lookback period goes into effect on that date. The lookback period does not "begin" until a new DWI is committed. So the guy who got the DWI on 07-02-03… he does not have a "lookback" period until he gets another DWI. So if he gets a DWI on 06-30-2009 (after the new period), then THAT is what triggers the lookback period. Until the new DWI, he has no "lookback" period.
A look back does not violate the prohibition on ex post facto. The original crime was committed under the laws at the time. In a subsequent infraction, it uses law at THAT TIME (the time of the second infraction) to determine sentencing.
It has no impact on the sentence for the first infraction, it merely acknowledges that it existed. Mere recognition of an offense is not in and of itself a form of punishment, so there has been no change in the sentence for that crime.
The previous law had provision for a shorter look back period, and that is the only law which has been changed. Because the new look back only takes effect on the NEW infraction, it is valid.
Although we think of things in terms of how long they stay on your record, the lookback period is exactly that, it looks back. After you have committed a first offense, the legislature can change the definition of what consitutes a second offense, regardless of what consituted a second offense back when you committed your first offense.
It would be ex post facto if the prosecutor tried to add jail time for a second offense that occured before the law was updated.
You committed a first offense as it was defined at the time, and you committed a second offense as it was defined at the time of your second offense.
This commonly happens with three-strike laws. The law can say: Anyone convicted of a violent felony having previously been convicted of two previous violent felonies will serve a life sentence in prison. You are on notice that if you commit a third violent felony, you get life. As long as your third felony comes after the law was passed, it is legal.
The answer is to stop drinking and driving. Or run for office to change the law.