Facts

The prosecution alleges that, on December 25, 2009, Defendant was driving

his vehicle under the influence of alcohol and/or drugs in violation of Vehicle

Code Sections 23152(a) and (b). For clarity’s sake, all further statutory

references are to the Vehicle Code unless otherwise noted. The prosecution

also alleges that Defendant committed the instant violations ‘within ten (10)

years of the commission’ of the aforementioned offenses in violation of

23540. The alleged violation of 23540 was triggered by defendant’s prior

driving under the influence (“DUI”) conviction, which occurred on April 20,

2001 (arrest taking place on February 16, 2001).

The prosecution, consequently, seeks to prosecute Defendant as a second

DUI offender in violation of the Expo Facto Clause of both the U.S. and

California Constitutions.

Applicable Law

The constitutional prohibition against ex post facto laws prevents the

application of section 23540 as a sentencing enhancement in the instant

offenses. See U.S. Const., art. I, § 10, cl. 1; see also Cal. Const., art. I, §9.

In deciding whether the application of section 23540 to the circumstances of

this case violates the ex post facto clause of the state and federal

Constitutions, the courts have interpreted the ex post facto clause in the
California Constitution no differently than its federal counterpart. See People

v. McVickers (1992) 4 Cal. 4th 81, 84 [13 Cal. Rptr. 2d 850, 840 P.2d 955];

Tapia v. Superior Court (1991) 53 Cal. 3d 282, 295 [279 Cal. Rptr. 592, 807

P.2d 434]. Thus, precedent by the U.S. Supreme Court not only controls the

federal constitutional question, but also provides persuasive authority as to

whether a statute is an ex post facto law under California law. See, People v.

Snook (1997) 16 Cal. 4th 1210, 1222 [69 Cal. Rptr. 2d 615, 947 P.2d 808],

quoting People v. Helms (1997) 15 Cal. 4th 608, 614 [63 Cal. Rptr. 2d 620,

936 P.2d 1230].

In Collins v. Youngblood (1990) 497 U.S. 37 [110 S. Ct. 2715, 111 L. Ed. 2d

30], the U.S. Supreme Court endorsed the view of its earlier decisions

establishing that the ex post facto clause prohibits any provision "which

makes more burdensome the punishment for a crime, after its commission."

Id. at p. 42 [110 S. Ct. at p. 2719], quoting Beazell v. Ohio (1925) 269 U.S.

167, 169 [46 S. Ct. 68, 68, 70 L. Ed. 216]; cf. People v. McVickers, supra, 4

Cal. 4th at p. 84.

One of the primary purposes of the ex post facto clause is to prevent

unforeseeable punishment. "Critical to relief under the Ex Post Facto Clause

is not an individual's right to less punishment, but the lack of fair notice and

governmental restraint when the legislature increases punishment beyond

what was prescribed when the crime was consummated." See, People v.
Snook (1997) 16 Cal. 4th 1210, 1222 [69 Cal. Rptr. 2d 615, 947 P.2d 808],

quoting Weaver v. Graham (1981) 450 U.S. 24, 30 [101 S. Ct. 960, 965, 67

L. Ed. 2d 17].

In the case at hand, the imposition of an enhanced penalty on a second DUI

conviction for an offense predating the triggering violation contravenes the

constitutional proscription against ex post facto laws. The reason being that

the commission of the offense underlying the section 23540 charge occurred

before the statute's 2005 amendment became effective. The portion of

section 23540 relevant to this case has been in effect since 2005. At the

time defendant committed his first offense in 2001, he was not on notice

that if he committed another DUI offense within 10 years of his then-instant

violation, he could be subject to the second offense punishment

enhancement.

The opposite, however, is true. At the time Defendant committed his first

offense in 2001, he was on notice that if committed another DUI offense,

within 7 years of the then-instant offense, he could be subject to the second

offense punishment enhancement. Had he committed the instant offenses in

2008, he could have been subject to the second offense punishment

enhancement. To subject him to the current ‘second offense punishment

within 10 years’ enh

ancement will contravene the prohibition of the ex post facto clause.

Conclusion

Because the current 23540 became effective in 2005, Defendant’s 2001

should not be counted as a prior conviction for sentencing purposes.