LOUISVILLE, Ky. (WDRB) — On April 18, a south central Kentucky man appeared before an Adair County judge on what was considered his first drunken driving charge — a misdemeanor violation.
But by the end of his hearing that day, the man’s charge had been upgraded to his fourth such offense, which is a felony in Kentucky and punishable by up to five years in prison.
The 51-year-old man became one of the first defendants in the state to see the effect of a stiffer DUI law that weighs previous drunk-driving offenses from up to a decade. The state’s “look-back” period had been five years until the law changed in April.
As a result, the Adair County judge allowed prosecutors to use three drunken driving convictions from 2006 and 2009 against the man.
“He walked into a courtroom thinking the max punishment he could possibly face was 30 days in jail and instead it’s five years in prison,” the man’s attorney, Samantha Costello, said in an interview. “It’s huge.”
But while the judge in Adair County deemed the new law retroactive, allowing prosecutors to reach back 10 years, other judges in Kentucky have not. They and some defense attorneys say using a decade’s worth of offenses runs counter to what defendants were told in plea bargains for past convictions.
The result is unequal treatment for the same law depending on the judge who hears a DUI case.
The confusion stems partly from the language in — or, in this case, omitted from — Senate Bill 56. Specifically, the bill that passed this year does not spell out whether prosecutors can use it retroactively or not. So judges are interpreting it differently.
Jefferson District Court Judge Sean Delahanty, for example, recently ruled the law is not retroactive as people who pleaded guilty to DUIs in past years entered into an agreement that stipulated that only five years’ worth of offenses would be considered “and to hold otherwise would alter the agreement.”
“Thousands of guilty pleas would be subject to set aside,” if prosecutors tried to go back 10 years to enhance current DUI penalties, Delahanty wrote in his ruling.
“It’s sort of poorly thought out,” Delahanty said of the law in a July 7 hearing. “The statute is flawed. And fatally flawed.”
Jefferson District Court Judge Anne Delahanty, however, ruled just the opposite, allowing prosecutors to charge defense attorney Greg Simms’ client with DUI second offense, counting one that occurred in 2010, more than five years ago.
That result means stiffer penalties, including the woman’s license being suspended while the case is pending.
“I don’t think it’s fair, but I think it is what the law is,” Ann Delahanty said during an Aug. 4 hearing.
Simms has asked a Jefferson Circuit Court judge to overrule Anne Delahanty, arguing in part that the laws cannot be applied retroactively unless they specifically say so.
“Everyone agrees … that at no point in this law does it say it will be applied retroactively,” Simms said. “All they would have had to do was put a sentence in. … That would have cleared up the confusion.”
One of the sponsors of the bill, Sen. Dennis Parrett, D-Elizabethtown, said in an interview that legislators had intended the law to be retroactive, even if it doesn’t specify it. If the courts don’t work the issue out, Parrett said legislators could amend the law to specifically say it is retroactive during the legislative session that starts in January.
Parrett said there have been challenges to the law in a handful of counties so far, but prosecutors with the Kentucky County Attorney’s Association told him they “feel very strongly they will prevail in court, that this legislation is being implemented properly.”
Calls to the Kentucky County Attorneys Association were not returned.
Jefferson County Attorney Mike O’Connell is confident that most courts, including appellate courts, will rule the law is retroactive.
O’Connell said when the law took effect in April, people with past DUIs were put on notice that any convictions within the last 10 years could be used against them if they drove drunk again. He pointed to a past Supreme Court ruling that called this “fair warning.”
Another Supreme Court case O’Connell cited, in which previous DUI convictions were allowed to be used to enhance penalties under a then-new state law, was also cited by Judge Anne Delahanty used to rule in favor of prosecutors.
O’Connell said the look-back law would be “nonsensical” if it wasn’t retroactive, as prosecutors “would have to wait five years before we could do anything.”
And he pointed out that the law passed overwhelmingly in both the Kentucky House and Senate.
“I think it’s pretty clear what the General Assembly wants the law to be in this state,” he said.
O’Connell noted that the bill was partly meant to honor a former law partner of his, Lexington attorney Mark Hinkel, who was cycling in an event last year when he was hit and killed by an oncoming truck whose driver had been drinking.
“He had been arrested (several) times (for DUI) before the crash and had never had a felony conviction due to a five-year look back,” O’Connell said of the driver. “If it had been a 10-year look back, it might have been a different case” and the man might have already been in prison.
“We’re not talking about the person who goes out once in their lifetime and has a little too much to drink … and they take care of their responsibility and move on with their life,” O’Connell said. “We’re talking about people that don’t care, that are suffering from alcoholism or other addictions, and don’t modify their behavior unless they don’t have a choice.”
But defense attorneys say the law is flawed and could have implications beyond just how current DUIs are handled.
Simms, who is appealing DUI cases in Jefferson and Hardin counties, said if prosecutors use past convictions — where defendants had entered into a plea bargain under the five-year look back law — defense attorneys could ask that those old cases be overturned.
“Once you’ve got an agreement, is it okay to change the terms of that agreement?” Simms asked.
If he loses his appeal of Judge Anne Delahanty’s ruling, Simms said he will ask that his client’s 2010 DUI be reopened because the terms of the plea agreement have changed. Someone who pleaded guilty to a DUI eight years ago, for example, was told that that case could only be used against them for the next five years, Simms said in an interview.
“Those people have done their time, they have paid that bill,” he said. “And now (prosecutors) are saying, ‘Oh, we lied. Now we are going to take that and make that old punishment worse, make it enhanceable for 10 years, not five.'”
While Judge Anne Delahanty eventually sided with prosecutors, she agreed with Simms on this point — and actually told a DUI defendant on Aug. 10 that she hoped a higher court overturned her.
Her reason, according to a video of the hearing: “I don’t think it’s fair.”
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