State v. LeBlanc

State v. LeBlanc (99-182); 171 Vt. 88; 759 A.2d 991 

[Filed 14-Jul-2000]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 99-182


State of Vermont	                         Supreme Court

                                                 On Appeal from
     v.	                                         District Court of Vermont,
                                                 Unit No. 2, Chittenden Circuit

Andre A. LeBlanc	                         April Term, 2000



Howard E. Van Benthuysen, J.

Lauren Bowerman, Chittenden County State's Attorney, Robert Simpson, Chief 
  Deputy State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, 
  Burlington, for Plaintiff-Appellant.

Paul D. Jarvis of Jarvis and Kaplan, Burlington, for Defendant-Appellee.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       SKOGLUND, J.  In this case, we address the issue we declined to reach
  in the recent  decision, State v. Carpenter, 11 Vt. L. W. 78, 79 (2000),
  namely, whether the savings clause that  accompanied the 1991 amendment to
  23 V.S.A. § 1210(d) is available to a defendant who had  already been
  convicted of driving under the influence (DUI) three times at the time of
  the  amendment.  This is an interlocutory appeal from a decision of the
  district court granting defendant  Andre LeBlanc's motion to dismiss the
  DUI, fifth offense charge against him, and amending the  charge to DUI,
  second offense.  We reverse and remand.

 

       On November 30, 1998, defendant was charged with DUI, fifth offense. 
  He had previously  been convicted of DUI on May 25, 1995, May 2, 1983,
  January 13, 1982, and October 17, 1981.  The  State sought a penalty of
  "[n]ot more than $2,500.00 or not more than 5 years imprisonment or both." 
  Thus, the State sought to punish defendant as a fifth offender, pursuant to
  23 V.S.A.  §  1210(d).  While under § 1210(b) & (c), first and second DUI
  offenses are treated as misdemeanors,  under § 1210(d), third and
  subsequent offenses are treated as felonies.

       Defendant moved to dismiss the allegation that he was a fifth
  offender, arguing that, if  convicted, he could be sentenced only as a
  second offender under the applicable statutes.  In support  of his motion,
  defendant first noted that the prior version of § 1210(d), applicable
  before July 1,  1991, provided that a person had to be convicted of DUI
  twice within fifteen years of his or her  current conviction in order for
  the enhanced penalties then in effect to apply.  Defendant then argued 
  that, when § 1210(d) was amended in 1991, the Legislature deleted the
  fifteen-year forgiveness  period, but added a savings clause that retained
  the forgiveness period in cases where the prior  convictions occurred
  before July 1, 1991.  Therefore, he argued, if convicted of the current
  offense,  he would not have been convicted twice within fifteen years, the
  1981, 1982 and 1983 convictions all  having occurred more than fifteen
  years prior to any conviction on the pending offense. (FN1)   Under
  defendant's analysis, he could only be convicted of DUI, second offense, a
  misdemeanor.

       The district court agreed, holding that, when sentencing a defendant
  for a third or subsequent  DUI offense, a court cannot consider any
  pre-July 1, 1991, DUI conviction that, at the time of 

 

  sentencing on the current DUI conviction, is more than fifteen years old. 
  Thus, because defendant's  1981, 1982 and 1983 convictions all predated
  July 1, 1991, and because, if defendant were to be  convicted on the
  current charge, more than fifteen years will have elapsed between his
  pre-1991  convictions and his current conviction, the court concluded that
  defendant's pre-1991 convictions  could not "be used either to enhance the
  present charge to a felony level or at sentencing."   Therefore, the court
  held that the charge had to be reduced from DUI, fifth to DUI, second.

       The State filed a motion for interlocutory appeal, which the court
  granted.  The court certified  the following questions for our review:

         What is the effect of the 7/1/91 amendment to 23 VSA section 
    1210(d) which eliminated the former 15 year forgiveness period for 
    the use and computation of prior DWI convictions for the purposes
    of  enhancing penalties on subsequent DWI convictions? 
          Does the legislative history contain a 'savings clause' which 
    requires that as to convictions accrued prior to 7/1/91 they may
    not be  considered for charging or sentencing in subsequent DWI's
    [sic] if  older than 15 years from the date of the new offense?
    
  Prior to July 1, 1991, 23 V.S.A. § 1210(d) provided:

    Third offense.  A person convicted of violating section 1201
    who has,  within the preceding 15 years, twice been convicted of
    violation of  that section, shall be sentenced as provided in
    subsection (c) of this  section, except that any fine shall not be
    less than $100.00 nor more  than $1,500.00.

  23 V.S.A. § 1210(d) (1987), amended by 1991, No. 55, § 9 (emphasis added). 
  As of July 1, 1991, §  1210(d) provides:

    Third or subsequent offense.  A person convicted of violating
    section  1201 of this title who has twice been convicted of
    violation of that  section shall be fined not more than $2,500.00
    or imprisoned not  more than five years, or both.

  23 V.S.A. § 1210(d) (emphasis added).

 

       In amending § 1210(d), the Legislature also provided, in pertinent
  part,

    that it is the intention of the general assembly that section 9 of
    this  act, which amended this section by eliminating the 5-year
    and 15-year  forgiveness periods, shall apply as follows: . . .
    (5) With respect to  section 1210 of Title 23, the 15-year
    forgiveness period used to  determine third convictions shall be
    considered a right [that] has  accrued to the operator if the
    prior convictions occurred at any time  prior to July 1, 1991.

  1991, No. 55, §§ 19(4), (5) (emphasis added).

       The State argues that the court erred in concluding that defendant's
  three pre-1991 DUI  convictions could not be used to enhance either the
  charge or the penalty.  According to the State,  defendant does not qualify
  for the fifteen-year forgiveness period because, prior to 1991, he had
  three  DUI convictions.  The State notes that the pre-1991 statute refers
  to third offenses, whereas the post-1991 statute refers to third or
  subsequent offenses, and the savings clause refers to third convictions. 
  The State argues that, if the Legislature intended for the savings clause
  to apply to third or  subsequent offenses or convictions, it would have
  specifically so stated.  Thus, according to the  State, under the plain
  language of the statute and the savings clause, the forgiveness period
  applies  only to defendants convicted of DUI, third, and does not apply to
  this defendant because the current  alleged offense is his fifth.  We
  agree.

       In construing a statute, "our principal goal is to effectuate the
  intent of the Legislature."   Tarrant v. Dep't of Taxes, 169 Vt. 189, 197,
  733 A.2d 733, 739 (1999).  In determining legislative  intent, we begin
  with the plain meaning of the statutory language.  If legislative intent is
  clear from  the language, we enforce the statute "according to its terms
  without resorting to statutory  construction."  Id.  Furthermore, we
  "presume that all language in a statute was drafted advisedly, 

 

  and that the plain ordinary meaning of the language used was intended." 
  Committee to Save  Bishop's House v. Medical Center, 137 Vt. 142, 153, 400 A.2d 1015, 1021 (1979) (citations  omitted). 

       Here, the plain language of the pre-1991 statute refers to third
  offenses, whereas the plain  language of the amended statute refers to
  third or subsequent offenses.  The savings clause, which  was added when
  the statute was amended, refers to third convictions.  If the Legislature
  intended for  the savings clause to apply to third or subsequent
  convictions, it knew how to so specify.  See In re  P.S., 167 Vt. 63, 70,
  702 A.2d 98, 102 (1997) ("[T]he Legislature has clearly demonstrated that
  it  knows how to specify a standard of dangerousness because it has
  included one in other subsections  of the statutory section we are
  construing."); In re Spencer, 152 Vt. 330, 340, 566 A.2d 959, 965  (1989)
  ("[T]he fact that § 6085(d) allows for automatic issuance of a permit under
  certain  circumstances illustrates that the Legislature knew how to provide
  for a remedy if it chose to. The  absence of a similar express provision in
  § 6086(b), therefore, demonstrates a legislative intent not to  provide for
  such a remedy.").  We decline to expand the savings clause by adding words
  that we  presume the Legislature intentionally omitted.  See  State v.
  Fuller, 163 Vt. 523, 528, 660 A.2d 302,  305 (1995) (Court will not
  "'expand a statute by implication, that is, by reading into it something 
  which is not there, unless it is necessary in order to make it
  effective.'") (quoting State v. Jacobs, 144  Vt. 70, 75, 472 A.2d 1247, 1250 (1984)).

       Moreover, as the State points out, the district court's approach runs
  contrary to the intent of  the Legislature.  An examination of the pre-1991
  version of the statute reveals that the Legislature  sought to impose
  increasingly severe penalties on repeat offenders.  For example, under §
  1210(b),  the subsection applicable to first offenses, the statute
  authorized a fine of "not less than $200.00, nor

 

  more than $750.00, or imprison[ment] for not more than a year, or both." 
  23 V.S.A. § 1210(d)  (1987), amended by 1991, No. 55, § 9.  Under §
  1210(c), the subsection applicable to second  offenses, the Legislature
  mandated a sentence of  "[i]mprisonment for not more than one year," and 
  additionally authorized a fine of "not less than $250.00, nor more than
  $1,000.00."  Id.  Finally, §  1210(d), the subsection applicable to third
  offenses, provided for the same punishment as that in  subsection (c),
  "except that any fine shall not be less than $500.00 nor more than
  $1,500.00."  Id.

       The amended version of § 1210(d) is more stringent than the pre-1991
  version in three ways:  (1) today, the penalties for a third or subsequent
  DUI offense are significantly greater than they were  prior to the 1991
  amendment; (2) a third or subsequent DUI offense is now a felony, whereas,
  prior  to the amendment, it was a misdemeanor; and (3) the Legislature
  eliminated the fifteen-year  forgiveness period.  The savings clause
  accompanying the 1991 amendment evidences the  Legislature's intent that
  defendants retain the rights they were entitled to as of the date the
  statute was  amended.  However, given the fact that, in 1991, the
  Legislature increased the penalties and  ramifications for repeat DUI
  offenders, it is unlikely that, by including a savings clause in the 1991 
  amendment, the Legislature intended to provide defendants with greater
  rights than they were  entitled to prior to the amendment.

       Yet, the district court's interpretation does just that.  Under the
  district court's approach, defendant is  entitled to have his three
  pre-July 1, 1991, convictions forgiven simply because they predate his 
  current offense, and therefore any subsequent conviction, by more than
  fifteen years.  (FN2)

 

  By allowing defendant, who is facing his fifth conviction, the relief
  contemplated by the penalty  statute, the district court greatly expanded
  the "right" reserved by the Legislature to seek forgiveness  of prior
  convictions "to determine third convictions."  Given the Legislature's
  intent, the better  approach is to interpret the savings clause as
  providing DUI offenders with the rights they had at the  time the statute
  was amended, but nothing more. (FN3)  Therefore, after the 1991 amendment, 
  defendants who had two DUI convictions before 1991 may seek to avail
  themselves of the fifteen-year forgiveness period to determine the penalty
  when convicted of a third offense.  With that limited  exception, there is
  no longer any forgiveness period for third or subsequent DUI convictions.

       When convicted of DUI for the fourth time in 1995, defendant had no
  right to the fifteen-year  forgiveness period under the amended statute or
  the savings clause and, consequently, he was  sentenced as a DUI fourth
  offender.  Similarly, today, defendant has no right to have any of his
  prior  convictions forgiven.  Thus, if convicted of the current offense, he
  should be sentenced as a fifth  offender. 

       Reversed and remanded.


                                       FOR THE COURT:

                                       _______________________________________
                                       Associate Justice


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                                  Footnotes

                                   
FN1.  Defendant was charged with the current offense on November 30, 1998;
  his most recent  pre-1991 conviction was May 2, 1983.  Therefore, even if
  defendant were convicted of the current  offense on the same day he was
  charged, more than fifteen years would have elapsed between the  two
  convictions.

FN2.  Applying the district court's approach, defendant was not entitled,
  following his 1995  conviction, to have his earlier convictions forgiven,
  as they occurred within fifteen years of his fourth  conviction.  However,
  under the district court's ruling, although defendant could have been 
  convicted of a felony DUI in 1995, he can be convicted only of a
  misdemeanor for committing the  same offense three years later.

FN3.  For example, if a defendant had been convicted in 1974 and 1978, then,
  under the previous  version of the statute, if convicted again in 1990, he
  would have been entitled to have his 1974  conviction forgiven because he
  did not have two DUI convictions "within the preceding 15 years."   Thus,
  in 1990, he would be sentenced as a second offender.  After the 1991
  amendment, the savings  clause would allow the same result in a case where
  the defendant was convicted of DUI in 1974 and  1978 and again on July 1,
  1991.  Under this scenario, he would retain the right to have his 1974 
  conviction "forgiven."