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Changing the rules: Kentucky judges differ on look-back period for repeat DUI

One of the reasons sports competition is so compelling is the common agreement that rules won't be changed in the middle of the game.

Of course, life is not always so straightforward. But is changing the rules in the middle of the game essentially what the state is doing to people who face enhanced penalties because of DUIs they pleaded guilty to before Kentucky passed Senate Bill 56?

As we noted in our April 19 post, Senate Bill 56 increased the amount of time that DUIs stay on someone's record from five years to 10.

In this post, we will use a Q & A format to discuss how the new law is being applied.

Are judges enforcing the new law consistently?

No. Judges disagree about whether Senate Bill 56 is supposed to apply retroactively, to DUI offenses to which people pleaded guilty before the new law was passed.

What does Senate Bill 56 say about retroactivity?

The bill is silent on the question.

Some judges have held that the new law cannot be used to go back more than five years on people who pleaded guilty to DUI before Senate Bill 56 took effect in April.

Those judges, such as Judge Sean Delahanty of Jefferson County, reason that it isn't fair to apply the law retroactively because guilty pleas to DUI charges before Senate Bill was passed were based on the understanding that the state wouldn't go back more than five years in trying to enhance DUI penalties based on repeat violations.

In a hearing last July, Judge Delahanty therefore called the new law "fatally flawed."

Other judges in the same county, however, have held the exact opposite. The Jefferson County Attorney, Mike O'Connell, remarked that Senate Bill 56 would be "nonsensical" if it were not retroactive. That is because if the new law weren't retroactive, prosecutors would have to wait five years before prosecutors could start to use it.

Why does retroactivity matter so much?

It matters so much because in Kentucky the fourth DUI within the allowable lookback period can be charged as a felony. This can mean the difference between facing a maximum penalty of a 30-day jail sentence and a maximum penalty of up to five years in prison.

In one case in Adair County, for example, a man thought he would face a misdemeanor charge because it was his first DUI charge in the last five years. But the judge allowed prosecutors to also use three DUI convictions that the man had in the period from 2006 to 2009.

That use of the longer lookback period raised the stakes immeasurably because of the possibility of a long prison sentence for repeat DUI.

Your circumstances

Given the uncertainty about the law, it's especially important to assert your rights when facing DUI charges. Get the help you need from an experienced defense attorney.

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