LEE R. KERR

ROSEBUD COUNTY ATTORNEY

Rosebud County Courthouse

P.O. Box 69

Forsyth, MT 59327

ATTORNEY FOR PLAINTIFF

MONTANA SIXTEENTH JUDICIAL DISTRICT COURT, ROSEBUD COUNTY

)

STATE OF MONTANA, ) CAUSE NO. DC 95-78

)

Plaintiff, )

vs )

)

ROBERT L. MILLS, ) STATE’S REPLY TO DEFENDANT’S

) MOTION TO DISMISS

Defendant. )

The State agrees with the Defendant’s presentation of

the facts, however, disagrees that there is any unconstitutional violation of federal and state constitutional prohibitions against Ex Post Facto laws.

ARGUMENT:

The defendant has relied on State vs. Leistiko 844 P.2d 97 (Mont. 1992), and related cases, in support of his position. The defendant’s reliance on such authority is completely misplaced. Ex post facto applies only when the law is retrospective, within the meaning of the ex post facto clause, if it changes the legal consequences of actions committed before its effective date. In this case, the defendant’s previous convictions are of record. The defendant was sentenced and convicted under those provisions. There is no attempt to changeor alter the penalty for these previous convictions. In October the law changed, which required the consideration of previous convictions of the defendant, in making the crime a felony.

The law presumes that the defendant knows the law, and must also presume that the defendant knows his own criminal record. The defendant knew as of the effective date of the new law, making fourth (4th) and subsequent DUI’s a felony, that if he committed a DUI, it would be a felony. The legal consequences of the defendant’s actions were not changed before the effective date.

This law is little different than subsequent statutory changes to domestic assault and abuse statutes, which have made previous convictions now included in the count, and can now result in a felony or elevated penalty. In Leistiko, the court held that the statute authorizing the district court to add additional terms and conditions, which were not part of parolees original sentence could not be applied retroactively to the defendant, who committed the offense before the statutes effective date. In this case, the defendant committed the offense after the effective date of the statute, which now requires consideration of lifetime convictions of DUI. As such, this is not a violation of either state or federal ex post facto. “The Framer’s had a dual purpose in banning ex post fact legislation: (1) To give fair warning to individuals of what conduct is punishable, and (2) to restrain federal and state governments from enacting arbitrary and potentially vindictivelegislation. Calder, 2 Dall. At 387-90. An increase in the severity of a criminal punishment compared with the punishment authorized at the time the act was committed is a criminal conduct measure coming within the ban on ex post facto laws. Weaver vs. Graham (1981), 450 U.S. 24, 28, 101 S.Ct. 960,964, 67L.Ed.2d, 17, 22. Critical to relief under the ex post facto clause is the lack of fair notice and governmental restrain when a legislature increases punishment beyond what was prescribed when the crime was committed. Weaver, 450 U.S. at 30, 101 S.Ct. at 965.” Id at Leistiko.

In this case, the defendant was given adequate and fair warning that his conduct would be punishable as a felony. As of the first of October, the defendant was on notice that if he again was arrested for DUI, because of his prior record, it would be charged as a felony, and if convicted it would be a felony. There is nothing in this legislation that is either arbitrary or potentially vindictive.

It simply increases the seriousness and the penalty for multiple DUI convictions. It is ludicrous to argue that perhaps the defendant would not have obtained multiple prior DUI convictions if he had known that some day in the future that the law might change, making a subsequent conviction a felony. Even if the defendant does make this argument, it is irrelevant to the constitutional argument of ex post facto. The issue is whether the defendant received fair notice of this new additional government restraint. The fact is that the defendant did. Itbecame law October 1, 1995. The defendant had the opportunity, knowing his own criminal record, not to again be arrested for a DUI. He chose not to do so, and subsequently has subjected himself to a felony offense, and faces potential felony conviction.

Lastly, under ex post facto, the legislature has not increased the punishment beyond what was prescribed when the crime was committed. The defendant committed the crime subsequent to October 1, 1995. At the time of the commission of the offense, the offense was a felony. As such, the legislature and the state have not changed the legal consequences of the actions committed before the effective date. Thus, the defendant’s motion to dismiss based on the constitutional argument of violation of ex post facto should be denied.

Respectfully submitted this day of January, 1996.

LEE R. KERR

ROSEBUD COUNTY ATTORNEY