Opinion
December 4, 2001
16-A CRIMINAL LAW PROCEDURE
U.S.C.A. Const. Art. 1, § 10, cl. 1; LSA-Const. Art. 1, § 23.
State v. Martin, 351 So.2d 92 (1977)State v. Heck, 560 So.2d 611 (1990).State ex rel Bickman v. Dees, 367 So.2d 283, 291 (La. 1978)State ex rel Turner v. Maggio, 463 So.2d 1304, 1307 (La. 1985)
Art. 1163 is not an ex post facto law because it works to the 3rd and 4th DWI offender's advantage. Art. 1163 applies retroactively to those cases where the individual was charged prior to the effective date of the legislation, but convicted thereafter.
Rep. Kenneth L. Odinet, Sr. House of Representatives, District 103 932 Angela Ave. Arabi, Louisiana 70032
Dear. Representative Odinet:
Please be advised that the Office of the Attorney General is in receipt of your opinion request regarding the following inquiry:
Does a person charged with a 3rd or 4th offense DWI and not having appeared for trial before August 15, 2001, which is the effective date of Act 1163 of the 2001 Legislative Session, subsequently receive a sentence under the old law, or is that person eligible to be sentenced under the new law.
In our opinion, a person charged under the above mentioned circumstances will be sentenced under the new law that became effective August 15, 2001.
I. Applicable Law
Long-established principles of law regarding retroactivity provide ample support for this conclusion. The general principle is that changes in criminal procedures apply to trials conducted subsequent to the date of the procedural amendments, not the procedural law in effect at the date of the crime. State v. Martin, 351 So.2d 92 (1977); State v. Heck, 560 So.2d 611 (1990).
An exception to the general principle exists when the new law imposes a greater punishment than that which the defendant would suffer under the old provision. Any law passed after the commission of an offense which alters the situation of a party to his disadvantage is an ex post facto law. State ex rel Bickman v Dees, 367 So.2d 283, 291 (La. 1978). Ex post facto changes in the substance of a criminal penalty cannot work to the disadvantage of the accused. State ex rel Turner v. Maggio, 463 So.2d 1304, 1307 (La. 1985).
To qualify as an ex post facto law, the suspect legislation: (1) must be passed after the date of the offense, (2) must relate to the offense or its punishment, and (3) must alter the situation of the accused to his disadvantage. U.S.C.A. Const. Art. 1, § 10, cl. 1; LSA-Const. Art. 1, § 23.
II. Analysis
The amendment to Louisiana R.S. 14:98 in Act 1163 does not enhance the punishment for a 3rd and 4th DWI offense. The effect of the act is to allow a 3rd or 4th offender, after having served thirty days of the sentence imposed, to undergo an evaluation to determine the nature and extent of the offender's substance abuse disorder. Upon completion, the offender is sentenced to home incarceration for the remaining period of his suspended sentence and no fine is imposed.
Under the old legislation, a 3rd or 4th DWI offender was immediately sentenced to imprisonment with or without hard labor. If the offender was later sentenced to home incarceration, he would have to serve not less than one year, no more than five years, and was fined $2000.
III. Conclusion
Act 1163 is not an ex post facto law because it works to the DWI offender's advantage. It is our opinion that the new law will be applied retroactively in cases where the individual was charged prior to the effective date of the legislation, but convicted thereafter.
It is my sincere hope that this opinion has been helpful. If I may be of further assistance, please do not hesitate to contact my office. With warmest regards, I remain.
Very truly yours,
RICHARD P. IEYOUB Attorney General
By: ___________________________ ELLISON C.TRAVIS Assistant Attorney General
ECT/jw/jy
Date Released: December 4, 2001