As I reported in my April 30, 2005, blog, July 1st marked the beginning of the new DUI law in Kansas that the Kansas Department of Revenue will look back at your entire life for determining how long to suspend your driver’s license. Previously, they only went back 5 years. An unexpected twist to this new law which I just confirmed last week, a mere 3 days before it went in to effect, is that the Department of Revenue is going to apply this new law retroactively in the case of persons convicted of DUI.
What does that “legalese” mean? As we know, there are two different components to a DUI case: (1) the criminal case, and (2) the administrative driver’s license case. When it comes to the administrative case, the new law about lifetime lookbacks will only apply to those people arrested after July 1, 2005 (that is, the law is applied prospectively). However, on the criminal side, if you are convicted of a DUI after July 1, 2005, regardless of when the arrest occurred, the lifetime look back on the license suspension will apply (that is, the law will be applied retroactively to cover those arrested before the law went into effect). The date of conviction will be considered by the Dept. of Revenue to be the day you pled guilty or were found guilty after a trial. So, if you were arrested in January of 2005, when the look-back was 5 years and before the changes in the law were ever passed by the legislature, but you are found guilty after July 1 the length of your driver’s license suspension will be determined by your entire life history.
If that sounds like changing the rules in the middle of the game, you might be right. Usually, when substantive changes are made to a law or the penalties for a crime, it can only be applied prospectively. To do otherwise violates the prohibition against ex post facto laws in the United States Constitution. The Kansas Department of Revenue thinks it can get around this constitutional problem. Their argument is that the driver’s license suspension is a collateral consequence of a DUI conviction in Kansas and is not directly related to the punishment set out for the DUI. It remains to be seen how the Kansas appellate courts will answer that question. Don’t be surprised when they say it’s OK to change the rules in the middle of the game.