My first criminal court case was an expungement in Hardin County, Kentucky on November 1, 2013 at 9:00am. The woman I was expunging a record for had a DUI 5 years ago, and has not had any new offenses since. Boy, was she happy to finally have the black mark off her permanent criminal record. You see, Kentucky allows the expungement of certain offenses if no new ones occur within a span of five years.
The judge did say one thing that kind of surprised me. She explained to me that if the Kentucky legislature decides to change our current laws to, let’s say, increase DUI penalties for subsequent DUIs committed within a ten year period (instead of the five it is currently), well, then my client will still have a DUI 2nd offense if she gets caught within those ten years notwithstanding the fact that her current DUI is expunged.
Is that constitutional? It doesn’t seem to pass the smell test. Let’s break it down.
You commit an offense.
Five years later, you get it expunged – lawfully, and by statute, mind you.
3 years after that the legislature amends the statute to read “any additional DUI offenses within 10 years.”
A year later you get a “second” DUI (are you with me? that’s 9 years since the first offense.)
Had the statute not been amended, you would have been charged with a DUI first offense, again. But, since the legislature changed the time frame to ten years, you are now charged with a DUI second and are facing much greater penalties.
Article I, Section 10, Clause 1 reads, in relevant part, as follows: “No State shall … pass any … ex post facto Law….” The ex post facto clause covers laws that retroactively 1) change the rules of evidence in a criminal case; 2) alter the definition of a crime; 3) increase the punishment for a criminal act; or 4) punish conduct that was legal when committed.
Technically, in our scenario above, the official penalties remain the same (under statute) and the only thing that is being modified is the time-frame for which they applies (an additional five years from the commission of the first offense.) I would still make the argument that it should be covered by the ex post facto clause as a retroactive increase in penalty to the citizen being convicted of the offense because DUI 2nd offense carries with it higher penalties than a DUI 1st and “but for” the legislature’s actions, the defendant would have been charged with the lower DUI 1st which carries the lower penalties. Plus I would throw in the element of “surprise” in there somewhere – does kind’a start to sound unfair at this point, doesn’t it?
Also, please note that as of January 1, 2014, expungement law is changing in Kentucky. In addition to the $100 payment to the Clerk of Court and $20 background check, the Kentucky State Police must be notified and “certify that [they] have conducted a criminal background check on the petitioner and [determine] whether or not the petitioner is eligible to have the requested record expunged.” KRS 431.079. They will most likely charge you an additional fee for this “service.” You can read the statute here.
If you would like a record expunged, or would like to find out if your record can be expunged, or require other legal services please contact me or call me at (270) 945-2778.
The DUI Guy.
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