Penalty enhancement for DUI requires actual conviction: COMMONWEALTH v. BEARD (COA 3/28/2008)

COMMONWEALTH V. BEARD
CRIMINAL:  Penalty enhancement for DUI requires actual conviction
2006-CA-001990
PUBLISHED: AFFIRMING
PANEL: COMBS PRESIDING; ACREE, THOMPSON CONCUR
CALLOWAY COUNTY
DATE RENDERED: 3/28/2008

On discretionary review, CA affirmed Circuit Court finding that KRS 189A.010(5)(e) requires a defendant to be convicted of one DUI before being charged with another DUI in order for the penalty enhancement provisions of that statute to apply. There seems to be no escaping the import of that language that Kentucky has indeed embraced the conviction-to-offense prerequisite for penalty enhancement purposes in DUI cases. Public policy appears to be ill served by the outcome of this case. There is no doubt that the penalty enhancement provisions of KRS 189A.010 were created by the General Assembly in order to deter drunken drivers from becoming habitual offenders. Those penalty provisions are effectively circumvented if a defendant can avoid the extra penalties merely because of the timing of various convictions. However, the legislature has apparently wrestled with the need to balance due process and the policy of enhancing penalties for serial offenses by drunken drivers. It may be that it could achieve that balance by amending the statute to affect the plea process. If and until the statute directs otherwise, we are bound to follow its literal language. The only solution at present is for the Commonwealth to act as swiftly as possible in prosecuting DUI charges seriatim rather than in aggregate.

Digested by Scott C. Byrd
www.olginandbyrd.com

Please note: I reserve the right to delete comments that are inappropriate, offensive or off-topic.

Leave a Reply

Your email address will not be published.