You asked how the 10-year “look-back period” works for driving under the influence of alcohol or drugs (DUI) offenders. Specifically you asked whether the court can treat an offender as a third offender if a third offense occurs within 10 years of the second one but the first occurred more than 10 years before the second.

Our office is not authorized to give legal opinions and this report should not be considered one.

SUMMARY

In interpreting an earlier version of the DUI law with a five-year look-back period, the Connecticut Supreme Court held that the enhanced penalties for a third conviction of driving under the influence of alcohol “within five years after a prior conviction” apply to the third conviction of a defendant when only one of his two prior convictions occurred “within five years” of his present conviction. Since the present law differs only in that the look-back period is now 10 years it appears that the court and prosecutors can treat a person as a third offender if his third offense occurs within 10 years of the second one but his first conviction occurred more than 10 years before the second (State v. Mattioli, 210 Conn. 573 (1989)).

Relying on the holding and reasoning of State v. Mattioli, the Appellate Court recently held that the enhanced penalty provision of the current DUI law, which has a 10-year look-back period, applies to a defendant's conviction for a third DUI violation, although only one of his two prior DUI convictions occurred within 10 years of the third conviction, and more than 10 years had passed between the defendant's first and second conviction (State v. Kratzert, 70 Conn. App. 565, (2002)). The Supreme Court decided not to hear the case on appeal (261 Conn. 932 (2002)).

The Supreme Court has also held that the DUI statute imposing enhanced penalties on a third-time violator is triggered by a third violation within five years of a prior conviction and does not require a third conviction within five years of a previous conviction. Thus, the look-back period runs from the current violation date to the prior conviction date (State v. Burns, 236 Conn. 18, 125-26, (1996)). This holding appears to apply to the current statute with its 10-year look-back period.

STATE v. MATTIOLI (210 CONN. 573)

Facts

The defendant was arrested on November 27, 1987, and charged with DUI in violation of CGS § 14-227(a). The defendant pleaded not guilty. On March 14, 1988, the state filed a second part to the information, charging him with being a third offender under the enhanced penalty provisions of § 14-227a(h)(3). The defendant had previously been convicted of DUI in Connecticut on March 14, 1983, and on October 11, 1983.

On March 17, 1988, the defendant filed a motion to dismiss the state's allegation of a third offense. The trial court denied his motion. The defendant subsequently entered a no contest plea, conditioned on his right to appeal from the denial of his motion to dismiss the second part of the information charging him as a third offender.

The trial court sentenced him to one year in prison, suspended after 120 days, and three years probation. It also ordered him to participate in an alcohol treatment program and fined him $ 1000.

Issue on Appeal

The defendant claimed on appeal that he could not be charged as a third offender pursuant to § 14-227a(h)(3) because his third conviction for violating § 14-227a did not occur within five years of his first conviction for violating the statute. The trial court held that the language of § 14-227a(h)(3) which speaks of a third conviction “within five years of

a prior conviction,” does not require that the third conviction be within five years of all prior convictions.

Relevant law

The defendant was convicted of violating CGS §14-227a(h), revised to 1987. This law provides that any person who violates any provision of subsection CGS § 14-227a(a).

“shall . . . for conviction of a third violation within five years after a prior conviction for the same offense, be fined not less than one thousand dollars nor more than four thousand dollars and imprisoned not more than two years, one hundred twenty days of which may not be suspended or reduced in any manner, and have his motor vehicle operator's license or nonresident operating privilege suspended for three years. . . . ”

Court's Holding

In a unanimous decision written by Chief Justice Peters, the court held that the enhanced penalties for a third conviction of driving under the influence of alcohol “within five years after a prior conviction” applies to the third conviction of a defendant when only one of his two prior convictions occurred “within five years” of his third conviction.

Court's Reasoning

The court noted that the language of § 14-227a(h)(3), interpreted according to the ordinary meaning of its words, plainly states that it applies to a “conviction of a third violation within five years after a prior conviction. . . . ” There was no dispute that this was the defendant's third conviction for violating § 14-227a. It was also undisputed that this third conviction occurred within five years of a previous conviction, on October 11, 1983, for DUI.

Thus the court concluded that the most recent conviction was a “conviction of a third violation within five years after a prior conviction” that subjects the defendant to the enhanced penalties provided by § 14-227a(h)(3). (The court noted in a footnote that it was not necessary to determine whether the language means that the period runs from conviction to conviction or from conviction to violation because both the violation and the conviction for the third violation occurred within five years of the second conviction. Footnote 3).

The court stated that its interpretation of § 14-227a(h)(3) finds further support in the final sentence of § 14-227a(h), which defines the prior offenses that may give rise to enhanced penalties. The final sentence states that conviction for violating the “provisions of subsection (a) of section 14-227a in effect on October 1, 1981, or as amended thereafter . . . constitute(s) a prior offense” for the purposes of § 14-227a. Thus according to the court, the defendant's 1983 DUI conviction clearly fell within this statutory definition of a “prior offense” for the purposes of § 14-227a(h)(3).

The defendant's principal response to the court's interpretation of § 14-227a(h) was that such an interpretation would allow the “irrational and bizarre result that a person can be a third offender without ever being a second offender. ” The court recognized that, under its interpretation, an enhanced penalty might follow despite a lengthy interval between a first and second conviction, if a third conviction came within five years of the second. But it stated that it was not persuaded that this result was either irrational or bizarre. It pointed to the language of § 14-227a(h)(3), which allows a person to be adjudged a third-time offender only after three convictions for violation of the statute. The statute makes the fact of a prior second conviction, rather than the status of being a prior “second offender,” the determining factor for an enhanced penalty. In the court's view, the legislature was free to make such a choice.

The defendant also argued that the statute is ambiguous and vague. The court acknowledged that a statute must be sufficiently clear to give fair notice of the conduct that it forbids. Honest disagreement about the interpretation of a statutory provision, according to the court, does not make the statute ambiguous or vague. The court rejected the defendant's argument because § 14-227a(h) clearly provides an enhanced penalty for a violation of § 14-227a within five years of a second conviction.

The defendant's final argument against the court's interpretation relied on the principle that penal statutes must be strictly construed against the state and liberally construed in favor of the accused. The court agreed with this principle. But the court concluded that under any reasonable rule of construction, the legislature could and did provide for an enhanced penalty for repeated violations of §14-227a. It noted that the legislature was not obligated to limit the time period during which a first offense might be considered relevant to the sanctions imposed for a third violation of the statute. It pointed to the related case of enhanced penalties for persistent dangerous felony offenders, where the legislature authorized increased sanctions for prior misconduct without any time limitation for the earlier conviction (CGS §53a-40(a)).

Thus the court concluded that the defendant's conduct fell within the scope of § 14-227a(h)(3) and the trial court correctly determined that he was a third offender within the meaning of the statute.

STATE V. KRATZERT, 70 CONN. APP. 565

Facts

By information dated October 16, 2000, the defendant was charged with DUI in violation of § 14-227a. The violation allegedly occurred on October 14, 2000. The state subsequently filed a part B information, alleging that the defendant previously had been convicted of DUI in Connecticut on December 9, 1988, and on May 10, 1999.

Part B of the information sought an enhanced penalty due to the prior convictions. The defendant filed a motion to dismiss part B, arguing that his 1988 conviction should not be counted for purposes of applying the enhanced penalties because it occurred more than 10 years before the defendant's 1999 arrest. Following a hearing, the court denied the defendant's motion. The defendant entered a conditional no contest plea to both parts of the information, reserving the right to appeal to challenge the denial of his motion to dismiss part B of the information.

The defendant appealed from the trial court's judgment of conviction, rendered after a conditional no contest plea for DUI. The defendant claimed that the court should have dismissed part B of the information that alleged that he was a third offender.

Issue on Appeal

The defendant argued on appeal that the court should have dismissed part B of the information, which alleged that he was a third DUI offender. Specifically, the defendant argued, as he did before the trial court, that his 1988 conviction could not be used to enhance the penalty for the present offense because the 1988 conviction is beyond the 10-year “look back” or “cleansing” period referred to in the statute. The state argued in response that the court properly denied the motion to dismiss on the basis of State v. Mattioi.

Holding

The Appellate Court held that the enhanced penalty provision of the current DUI law, which has a 10-year look-back period, applies to a defendant convicted for his third DUI violation, although only one of his two prior DUI convictions occurred within 10 years of his third conviction, and more than 10 years had passed between the defendant's first and second conviction.

DUI Law

CGS § 14-227a(h) provides in relevant part:

“Any person who violates any provision of subsection (a) of this section shall . . . (3) for conviction of a third and subsequent violation within ten years after a prior conviction for the same offense, (A) be fined not less than two thousand dollars nor more than eight thousand dollars, (B) be imprisoned not more than three years, one year of which may not be suspended or reduced in any manner, and sentenced to a period of probation requiring as a condition of such probation that such person perform one hundred hours of community service, as defined in section 14-227e, and (C) have such person's motor vehicle operator's license or nonresident operating privilege permanently revoked upon such third offense. . . . ”

This statute is similar to the DUI law interpreted by the Supreme Court in State v. Mattioli, except that it contains a 10-year look back period instead of a five-year look back period.

Court's Reasoning

The Appellate Court concluded that the facts of Kratzert fall within the scenario contemplated by the Supreme Court in Mattioli and §14-227a (h)(3). It noted:

1. there was an interval of more than 10 years between the defendant's first conviction for operating a motor vehicle while under the influence on December 9, 1988, and his second conviction on May 10, 1999, and

2. the defendant's third violation occurred on October 14, 2000, clearly within 10 years after a prior conviction for the same offense.

The court stated that it could discern no reason why the present case is not controlled by Mattioli and does not fit squarely within the statutory framework of § 14-227a(h)(3). Thus the court decided that the trial court properly denied the defendant's motion to dismiss part B of the information, which charged him as a third offender subject to the enhanced penalties for a third DUI conviction.

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