An unintended change in the state’s drunk driving law will mean lighter sentences for some of the worst violators of the law.

State lawmakers were trying to strengthen the state law on driving under the influence of alcohol when they amended it in 2006. Their goal was to let prosecutors and judges consider previous out-of-state DUI convictions when charging or sentencing. But the amendment prevents prosecutors and judges from considering all prior DUI convictions and limits them to considering only convictions that go back five years.

“It was unintentional, and I believe they will change it in the next legislative session,” said Limestone County District Attorney Kristi Valls.

The state attorney general is not going to appeal the decision because “it is useless to do so,” Valls said.

Instead, the attorney general, the district attorney and others are trying to get the Legislature to simply correct its mistake when it reconvenes in February.

Prosecutors like Valls knew there was a problem with the amendment when it was passed. But it was a decision two weeks ago by the Alabama Court of Criminal Appeals that crystallized the need to revise the law.

The Appeals Court reversed a Lamar County Circuit Court’s decision in a case involving Jeffery Hankins. On Oct. 11, 2006, Hankins pleaded guilty to a DUI charge in the town of Sulligent on July 22, 2006.

Hankins‚ attorney argued that his client did not have the required number of DUI convictions to sentence him on the enhanced felony provision passed in 2006, which states that a person needs three prior convictions in the past five years.

The Circuit Court ruled against Hankins and sentenced him to 65 months in prison with all but 15 months suspended and ordered him to serve probation.

The appellate court found that Hankins had seven prior DUI convictions but only two of those occurred within five years of the current conviction.

The appellate court overturned the decision based on two subsections in the law. The first “subsection (h)” was adopted in 1997 and was unchanged by the 2006 amendment.

It states: “On a fourth or subsequent (DUI) conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than $4,100 nor more than $10,000 and by imprisonment of not less than one year and one day nor more than 10 years.”

This subsection appears to free judges to consider all prior DUI convictions. However, the amendment in 2006 added subsection (o), which was intended to allow prosecutors and judges to consider out-of-state DUI convictions when charging and sentencing. It states: “A prior conviction within a five-year period for driving under the influence of alcohol or drugs from this state, a municipality within this state, or another state or territory or a municipality of another state or territory shall be considered by a court for imposing a sentence pursuant to this section.”

Hankins attorney argued that when the two subsections are read together, a person convicted of DUI must have three prior DUI convictions from this state, a city within this state, another state or a city within another state within the past five years before the fourth conviction can be considered a felony conviction and the person sentenced under felony sentencing guidelines.

The court’s opinion, written by Judge Greg Shaw, states: “We have no choice but to hold that by amending subsection (o) in the 2006 amendment” the legislature has restricted the use of prior DUI convictions for sentencing purposes to only those convictions that occurred within the five-year period immediately preceding the current conviction. In other words, the five-year requirement that was removed from subsections (g) and (h) in 1997 has now been reinstated. We recognize the effect of our interpretation on DUI sentencing.”

The court, noting Hankins’ seven previous DUI convictions spanning more than 15 years, stated: “Obviously, he has a propensity to drink and drive, yet he will receive only a misdemeanor penalty for his eighth conviction. The stated public policy of this state is to deter and punish those who repeatedly drive on Alabama’s roads under the influence of alcohol and jeopardize the lives of Alabamians on a daily basis. However, the wisdom of the 2006 amendment is not for this court to question.”

The court concurred with a statement made by the state Supreme Court in National Western Life Insurance Co., that “a perceived lack of wisdom in a statute does not empower this court to rewrite the statute, even if we wanted to do so.”

The court did have this suggestion for state lawmakers. “We urge the legislature to promptly clarify its intent through appropriate legislation.

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