District judge’s ruling on DUI law has prosecutors crying foul

Tire marks could be seen at the site where Mark Hinkel, bottom, was struck by a truck allegedly driven by Odilon Paz-Salvador, top. Hinkel was hit while participating in the Horsey Hundred cycling event in May 2015 in Scott County.
Tire marks could be seen at the site where Mark Hinkel, bottom, was struck by a truck allegedly driven by Odilon Paz-Salvador, top. Hinkel was hit while participating in the Horsey Hundred cycling event in May 2015 in Scott County.

A Fayette district judge’s ruling on a 2016 amendment to the drunken-driving law has prosecutors and defense attorneys battling in court.

Under previous state law, anyone charged with driving under the influence who has a drunken-driving conviction older than five years would be charged as a first-time offender. Gov. Matt Bevin signed a bill April 9 that extends the “look-back” period to 10 years. That bill contained an emergency clause that put the law into effect immediately.

The dispute involves drivers who had been cleared under the five-year period but not under the new 10-year look-back period.

District Judge Julie Muth Goodman issued an order Sept. 1 that the 10-year enhancement may not be retroactively applied to convictions that occurred before the amendment was signed into law on April 9.

The bill came in the wake of the 2015 death of Lexington lawyer and bicyclist Mark Hinkel.

Hinkel, 57, was cycling in the Horsey Hundred in Scott County when he was hit by an oncoming truck whose driver allegedly was drunk, according to police. Hinkel landed on the truck bed cover, and the driver went about three miles with Hinkel on the cover before the truck was stopped by police.

Odilon Paz-Salvador was charged with murder and has pleaded not guilty. Paz-Salvador told officers after his arrest that he had nine previous DUIs, most older than five years.

The Fayette County Attorney’s Office says Goodman’s ruling was wrong, but defense lawyers argue that Goodman was correct.

Goodman’s order is contrary to a previous ruling by Fayette Circuit Judge Kimberly Bunnell. The county attorney’s office wants Fayette Circuit Judge Thomas Clark to issue an order prohibiting Goodman from enforcing her order.

For example, if a person is charged with a DUI after April 9, and he or she has two convictions within 10 years, that person will be charged with a third-offense DUI and face greater penalties.

Four defendants in Fayette District Court — Meghan Blackburn, Jordan Dorough, Bruce Johnson and Jonathan Sanning — challenged the 10-year enhancement. All either had pleaded guilty or had been convicted of a DUI when the enhancement had a five-year statute of limitations.

Johnson had a DUI conviction in 2006. Under the old law, Johnson’s second DUI arrest in June would have been treated as a first offense, with a penalty of four to 30 days in jail, a fine of $200 to $500, and a license suspension of 30 to 120 days. Under the new version of the law, the penalty is seven days to six months in jail and a fine of $350 to $500.

Prosecutors sought a second-offense enhancement against Johnson, but Ben Cabuay, Johnson’s attorney, said the expanded “look back” was illegal.

“This law attempts to circumvent and go back and change the terms on a form that the government put together,” Cabuay said.

Franklin Paisley, Dorough’s defense attorney, said it is “manifestly unfair” if a defendant pleads guilty to a DUI, the five-year period expires, and “then the rules are changed on you.

“They’re told one thing and then the rules are changed after the fact,” Paisley said.

Judge Goodman agreed and on Sept. 1, she entered an order saying applying the 10-year look-back provision retroactively was illegal.

“It is tantamount to a prosecutor making a plea offer and then after the defendant has pled, not honoring the agreement,” Goodman wrote. She called such conduct “unconscionable and therefore not acceptable.”

But Monday, in a hearing in circuit court before Clark, Assistant County Attorney John Hayne said the law isn’t being applied retroactively.

“We are only applying this to cases that occur after defendants had fair notice that the law has changed and that … had occurred after April 9,” Hayne said.

Hayne said multiple courts have ruled that application of the DUI look-back window to previous convictions is constitutional.

Hayne cited a July 19 ruling by Circuit Judge Kimberly Bunnell denying a defense motion to amend a fourth-offense DUI from a felony to a misdemeanor.

In addition, the Kentucky Supreme Court and the U.S. Supreme Court have held that the DUI enhancement is constitutional. Fayette District Judge Joseph Bouvier cited the state Supreme Court ruling in his Aug. 15 decision to deny a motion challenging DUI defendant Ronald Lee Bledsoe’s enhanced status.

States across the country have found it constitutional to extend the look-back period, Hayne said.

“I think it’s telling when there are over 20 published opinions on this issue saying it is constitutional to apply this immediately,” Hayne told Clark on Monday.

Clark made no ruling and allowed Greg Coulson, Sanning’s defense lawyer, to submit a written brief.

This issue has arisen in other districts. Warren Circuit Judge John R. Grise wrote that plea agreements are binding contracts between prosecutors and defense lawyers. He denied a motion to reverse a district judge’s order challenging the 10-year look-back period.

In that case, Donnie Ware was arrested on April 23 on suspicion of driving under the influence. His initial charge was second-offense DUI, but he had been convicted in 2009 and 2014. The prosecution sought to amend the charge to a third-offense DUI in light of the new amendment.

But Grise wrote, “The principle of contract law, as well as our ‘historical ideals of fair play and substantial justice,’ bind the government to the agreement it made with Ware, and the commonwealth cannot rely on its General Assembly’s subsequent change of law to escape its terms.”

At some point, various cases across the state challenging the amendment might be consolidated and go before the Kentucky Court of Appeals and/or the Kentucky Supreme Court, said Lee Turpin, first assistant in the Fayette County Attorney’s Office.