Opinion
No. D 03 DMV 06-0345022 S
September 17, 2007
MEMORANDUM OF DECISION
FACTS
On December 31, 2006, the defendant, Norberto Callejas, was arrested and charged with operating a motor vehicle under suspension, in violation of General Statutes § 14-215(a). In accordance with General Statutes § 14-215(b)(2)(B), the state filed a second part of the information, charging the defendant as a subsequent offender on account of his two prior convictions of operating a motor vehicle without a license, in violation of General Statutes § 14-36.
The defendant's prior convictions occurred on January 28, 2004, and March 26, 2004.
On June 5, 2007, the defendant moved to dismiss the second part of the information on the ground that the enhanced penalty provided in § 14-215(b)(2)(B) is illegal as applied to him. Specifically, that statute provides for a mandatory ninety-day sentence for individuals twice previously convicted of operating a motor vehicle without a license or under suspension. The state filed an objection to the defendant's motion to dismiss on July 2, 2007, as well as an amended objection on July 23, 2007. The court denied the defendant's motion to dismiss on August 6, 2007. On August 8, 2007, the defendant filed a motion to articulate, pursuant to Practice Book §§ 6-1 and 64-1 which the court hereby grants.
DISCUSSION
In its 2005 session, the legislature amended § 14-215(b)(2)(B) to provide for an enhanced penalty for individuals convicted of operating a motor vehicle under suspension who have, "prior to the commission of the present violation, committed two or more violations of [§ 14-215a] or [§ 14-36], or any combination thereof . . ." General Statutes § 14-215(b)(2)(B). The penalty consists of "a term of imprisonment of ninety days which may not be suspended or reduced in any manner." General Statutes § 14-215(b)(2)(B). The amendment to the statute went into effect on October 1, 2005.
General Statutes § 14-36(h)(2)(B) provides the same penalty for those individuals whose present charge is operating a motor vehicle without a license.
In his motion to dismiss, the defendant has made the following three arguments in support of his claim that § 14-215(b)(2)(B) is illegal as applied to him: (1) the legislature did not intend for § 14-215(b)(2)(B) to be given retroactive effect; thus, convictions before its passage cannot be used to enhance the penalty; (2) if § 14-215(b)(2)(B) is applied retroactively, it violates the ex post facto clause; and (3) his right to due process has been violated in that he had no notice that a third conviction would lead to a jail sentence, as the prior convictions were for charges that were infractions subject only to the payment of fines.
In its amended objection to the defendant's motion to dismiss, the state argued that it was under no obligation to notify a person with prior convictions that there may be future enhanced penalties if that person should continue to break the law. The state also asserted that there is no ex post facto violation of a defendant's rights when a law is amended to enhance penalties for a defendant's prior convictions, as the defendant was put on notice of the changes to the law upon its passage.
In State v. Hickey, 80 Conn.App. 589, 591, 836 A.2d 457 (2003), cert. denied, 267 Conn. 917, 841 A.2d 1192 (2004), the defendant argued that the trial court improperly denied his motion to dismiss because as applied to him, General Statutes § 14-227(h)(3) resulted in a violation of the ex post facto clause. Section 14-277(h)(3) had been amended to enhance the penalty for repeat offenders and to allow consideration of prior offenses occurring ten years prior to a subsequent offense. Id. The amendment had gone into effect after the defendant's prior convictions for operating a motor vehicle while under the influence, but before the present two charges of the like had been filed. Id. The court held that the application of § 14-277a(h)(3), as amended, did not violate the ex post facto clause, as it was not a second punishment for the defendant's prior convictions and the defendant was effectively put on notice of the amendment at the time it went into effect. Id., 594.
As support for its holding, the court stated: "The United States Supreme Court has held that a statute enhancing a defendant's sentence because he is a repeat offender does not violate the ex post facto clause even if one of the convictions on which the sentence is based occurred before the enactment of the statute. See Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948). Moreover, the . . . Court has consistently sustained repeat offender laws as penalizing only the last offense committed by a defendant. See Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). Our own Supreme Court has reached the same conclusion. In State v. Holloway, 144 Conn. 295, 130 A.2d 562 (1957), the court rejected the contention that an enhanced sentence for a third time offender, under a statute enacted in 1955 and based on convictions in 1947 and 1952, constituted a violation of the ex post facto clause. `In resolving that question, the crucial fact is that [the statute] does not undertake to provide punishment for any crime committed prior to the date when it went into effect. The punishment provided is for a violation which occurs subsequent to the effective date of the section. The only effect that a conviction antedating the statute has is to enhance the penalty to be imposed for a violation of the narcotics law. The theory of [the statute] is not that a person shall be punished a second time for an earlier offense, but that the principal offense for which the person is being prosecuted under the statute is made more serious by reason of its being a repetition of an earlier offense or earlier offenses.'" State v. Hickey, supra, 80 Conn.App. 593-94.
In State v. Maslak, Superior Court, judicial district of Litchfield, Docket No. MV 18 02 0209137 (April 1, 2003, Pickard, J.) (34 Conn. L. Rptr. 410), the state filed an information charging the defendant with a violation of § 14-227a, and a second part of the information charging the defendant as a subsequent offender, on account of his three prior convictions for the same offense, with the most recent prior conviction occurring in New York in 1996. The defendant moved to dismiss the second part of the information, on the ground that the use of the New York conviction to enhance his penalty is an ex post facto application of the current version of § 14-227a. Id.
In 1999, the legislature added a provision to § 14-227a so that it now permits the use of convictions from other states to enhance penalties. This amendment went into effect after the defendant's 1996 New York conviction, but before the defendant committed the present offense on March 10, 2002.
The court held that the application of the current version of § 14-227a to the defendant did not violate the prohibition against ex post facto laws because it was in effect at the time the defendant committed the present violation of it. State v. Maslak, supra, 34 Conn. L. Rptr. 411. The court stated: "The defendant, if convicted, faces the penalties which were in effect [at the time he committed the alleged offense]. These penalties had been in effect since enhancement provisions relating to the use of out-of-state convictions were added to § 14-227a by Public Act 99-255, which became effective on October 1, 1999." Id. The court concluded that "[t]he [added] enhancement provisions . . . do not undertake to provide punishment for any crime committed prior to that date. The punishment provided is for conduct which [occurred] subsequent to October 1, 1999. The only effect that a prior out-of-state conviction has is to enhance the penalty on the theory that the present DUI offense is made more serious by reason of its being a repetition of earlier DUI convictions." Id.
The facts of the present case are very similar to those of Hickey and Maslak. The statute at issue, § 14-215(b)(2)(B), is also a repeat offender statute. Thus, as explained by the courts in Hickey and Maslak, it only penalizes the last offense committed. Accordingly, in the present case, § 14-215(b)(2)(B) will only penalize the defendant for the present charge of operating a motor vehicle under suspension; it does not further penalize him for his past two convictions of operating a motor vehicle without a license. The defendant was charged with operating a motor vehicle under suspension on December 31, 2006. This is more than a year after the amendment to § 14-215(b)(2)(B) went into effect. Because the current charges stem from the December 31, 2006 incident, which is after the effective date of the Act providing enhanced penalties, it cannot be said that it is being applied retroactively. As a result, the defendant's first two arguments are not persuasive.
Moreover, the defendant's argument that his right to due process will be violated because he had no fair warning that the penalty for a subsequent conviction could result in incarceration as opposed to being subject only to a fine is also not persuasive. The defendant had received fair warning when the amendment to § 14-215(b)(2)(B) was passed on October 1, 2005. On that date, the defendant was put on notice that a third conviction for operating a motor vehicle under suspension or operating a motor vehicle without a license (or a combination thereof), would result in a mandatory ninety-day sentence. As the Appellate Court stated in Provident Bank v. Lewitt, 84 Conn.App. 204, 209-10, 852 A.2d 852, cert. denied, 271 Conn. 924, 859 A.2d 550 (2004), "[t]he familiar legal maxims, that everyone is presumed to know the law, and that ignorance of the law excuses no one, are founded upon public policy and in necessity, and the idea [behind] them is that one's acts must be considered as having been done with knowledge of the law, for otherwise its evasion would be facilitated and the courts burdened with collateral inquiries into the content of men's minds . . ." (Internal quotation marks omitted.)
The defendant attempts to distinguish Hickey from the present case on the basis that the statute at issue in Hickey had a "look back" provision in it. The defendant argues that because § 14-215(b)(2)(B) does not have a "look back" provision, it should not be treated as retroactive. However, as previously stated, because § 14-215(b)(2)(B) only penalizes the defendant's most recent offense, which occurred after the amendment went into effect, the law is not being applied retroactively. Hence, the lack of a specific "look back" provision is not in any way fatal to the application of the statute. Notably, the statute at issue in Maslak did not have a "look back" provision and CT Page 15778 Maslak was decided on the same grounds as Hickey.
The defendant also attempts to distinguish Hickey from the present case on the basis that operating a motor vehicle under suspension does not present the same public policy considerations as operating while under the influence because it is not as serious of a crime. This assertion, however, belies the legislative history of § 14-215(b)(2)(B). The legislative history of this statute reveals that the legislature was equally concerned with those individuals who operate under suspension as those individuals who operate under the influence. As provided in the House Session Transcript (June 6, 2005), Representative Lawlor stated: "[T]he [b]ill enhances the penalty for a category of driver which has become a serious hazard on our state's highways and roads. And that is the driver who has had repeated suspensions of his or her driver's license and notwithstanding the fact, continues to drive." The legislative history also reveals that the legislators who introduced the bill did so because of recent vehicular homicides committed by drivers whose licenses were under suspension.
The defendant also asserts that a retroactive application of the statute would be a denial of equal protection. In his brief, the defendant states: "Indeed, on information and belief, most of the courts in this state . . . are not prosecuting under this section. Danbury has a large Hispanic population." Because there has been no retroactive application of the statute, the defendant's effort to bring forth an equal protection claim fails. Moreover, the defendant's assertion that other courts are not prosecuting under that section of the law based on his "information and belief," is unsupported by any evidence or precedential analysis.
CONCLUSION
Consistent with the Appellate Court's decision in State v. Hickey, supra, 80 Conn.App. 589, the enhanced penalty provided for in § 14-215(b)(2)(B) is applicable to the defendant's present charge of operating a motor vehicle under suspension. The motion to dismiss the second part of the information is denied.