APPEAL FROM WARREN CIRCUIT COURT HONORABLE JOHN GRISE, JUDGE
Nos. 16-CR-00635, 16-CR-00645
COUNSEL FOR APPELLANT: Andy Beshear Attorney General Perry
Thomas Ryan Assistant Attorney General
COUNSEL FORAPPELLEES: Steven Jared Buck Assistant Public
Advocate Department of Public Advocacy
COUNSEL FOR AMICUS CURIAE KENTUCKY ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS: James David Niehaus, Joshua Michael Reho
OPINION OF THE COURT BY JUSTICE VENTERS
April 2016, the Governor signed into law SB 56, which amended
KRS 189A.010, Kentucky's principal driving under the
influence of alcohol (DUI), y statute.
Subsection (5) of KRS 189A.010 provides substantially
enhanced penalties for subsequent DUI offenses committed
within a specified time frame, which we refer to as the
"look-back" period. Subsequent offenses committed
after the look-back period are not subject to enhancement.
2016 amendment increased the look-back period from five years
to ten years. By the terms of the bill, the new ten-year
look-back period went into effect immediately. Obviously, the
expanded ten-year look-back period will capture more prior
DUI offenses than the former five-year period.
Correspondingly, the additional five years during which DUI
offenses can serve as penalty-enhancing prior offenses means
that more DUI offenders with prior DUI convictions will be
subject to enhanced sentences.
unique issue, created by the 2016 amendment of the look-back
period, arises in the cases now before this Court. In
separate prosecutions in the Warren Circuit Court, Joshua
Deante Jackson and Telly Sayalas Denson were charged with
DUI, Fourth Offense, for offenses that occurred after the
newly-amended version of KRS 189A.010 became effective. Both
defendants had prior convictions for DUI offenses including
one committed more than five years but less than ten years
prior to his current, and thus beyond the five-year look-back
period of the former law, but within the ten-year look-back
period of the current law.
circuit court held that the convictions exceeding the former
five-year look-back period could not be used to elevate the
current DUI charges to DUI, Fourth Offense. The Commonwealth
appealed to the Court of Appeals.
Recognizing the matter as one of "great and immediate
public importance, " pursuant to CR 74.02, we accepted
transfer of the appeal.
reasons explained below, we conclude that the trial court
erred by excluding Jackson's 2009 and Denson's 2011
offenses from use as enhancing prior DUI convictions.
FACTUAL AND PROCEDURAL BACKGROUND
noted above, the Commonwealth charged each defendant with
Fourth Offense, and the offense was committed after the 2016
revision of KRS 189A.010. As predicates for the DUI, Fourth
Offense, charges, Jackson and Denson each had at least three
prior DUI convictions, two of which were committed within
five years of the current charge, but one of which preceded
the current offense by more than five years, but less, than
ten years. Jackson's applicable charge was incurred
October 9, 2008, in Warren County and he entered his guilty
plea on March 3, 2009; Denson's applicable charge was
incurred August 26, 2010, in Bullitt County and he pled
guilty to the charge on March 2, 2011.
pertinent here, Jackson's 2009 DUI conviction and
Denson's 2011 DUI conviction were each based upon a
written plea agreement that included the following
5. ... Should I be convicted of. additional DUI offenses or
operating on a suspended license offenses, penalties will be