Any person who is convicted of operating a motor vehicle in an intoxicated condition, Section 564.440, RSMo Sum.Supp. 1963, and who was previously convicted of violating Section 564.440, RSMo 1959, shall be punished as a subsequent offender under the applicable provision of Section 564.440 RSMo Cum.Supp. 1963.

. ............ MOTOR VEHICLES: HABITUAL CRIMINALS: DRUNK DRIVERS: Any person who is convicted of operating a mot or vehicle in an intoxicated condition, Section 564.440, RSMo Cum.Supp. 1963, and who was previously convicted of violating Section 564.440, RSMo 1959, shall be punished as a subsequent offender under the applicable provision of Section 564.440 RSMo Cum.Supp. 1963. January 6, 1964 OPINION :3: 3fl f i§~~ ~ Honorable »on E. Burrell Prosecuting Attorney Greene County Spr1ngt1eld, Missouri 658o2 Dear Mr. Burrell: You recently wrote to this otf1ce requesting an off1o1al opinion concerning our interpretation of the recently enacted drl.lnken driving law. Qn October 13 of this year, Senate Bill No. 78, enacted by the 72nd General Assembly, became ettect1ve. This aot repealed Sections 564.440 and 564.460, RSMO 1959 an4 enacted 1n lieu thereof several new sections relating to the s~e subject lllatter of crimes in connection nth the opttration of motor vehicles. One of the newly enacted aeot1ona ie also de·e1gnatec:1 564,. 440 (hereinafter l"$ferred to aa the new section). 'the two sections repealed and the new aectlon ,564.44<> appeal' a• follows~ "564,440. Dr1v1ns motor vehicle wn1le 1ntox1eated.••No person shall operate a motor v•h1cle while 1n an intoxicated condition, or when under the influence of drugs. 11 "564.-460. Penalty tor dl'unken driving or leaving scene of acoident.--Any person who violates the provisions of section 564.440 or 564.450 fJ!\all be deemed guilty of a felony and on conviction thereof shall be punished b1 tmpr1aonment 1n the penitentiary . tor A term not exceeding fivQ years or by oontinement 1n the <louo~y (tail for • t&rm not exce•ding one year, or by a tine not exceeding one hundred dollars, or by both such tine and impl'"1aooment. 11 Honorable Don B. lbZTell New Section 564.44o. "No person ahall operate a motor vehicle while in an intoxicated condition. ~~ ~eraon who violates the provisions o hie section ihiii be deemed gulitz ot a misdemeanor on conviction tor thi tirat two v1oiatlon8 thereot~and a te!ony on conviction tor the th1 ana aubseftent vloiationa th8reot, and, on convic on thereof, be punlihed aa tollowaa (a) Por the tiret ottenae, bf a tine nt nc;t lGse than on& hundred dollars or by 1mprleoament in the county jail tor a term not exceeding aix months, or by both such tine and imprisonment. (b) Por the second ottenae, bt confinement in the count1 jail tor a term or not leas than titteen days and not excHding one year. (c) Por the third and aubaequent ottenaee, by confinement in the county Jail tor a term ot not leaa than 90 days and nov more than one rear or by iapriaonment in the department ot correct1ona tor a term of not less than two years and not exceeding tive yeara. (d) Evidence ot prior convictiona ahall be heard and determined by the trial court, out ot the hearing ot the jury prior to the au'bmieaion ot the caae to the jury, and the court ahall enter ita findings thereon. (e) Any other provision in Section 302.309, RSMO, to the contrary not- w1thatanding~ when a court having Jur1.sd1ct ion tinde that a ohautteur or operator ie required to operate a motor vehicle in connection with hie business, occupation or employment, the court may grant auch l~ited driving privilege as the cireumatancea ot the case may juatity it the court &lao tinda unctue hardah1p on said 1nd1vid\lal in earning a 11vel1· hood; provided, however~ no such limited privilege shall be srant9G atcer conviction ot a second ottense ot the or~e mentioned herein. n (Emphuie supplied) -2- Honorable Don E. Burrell You specifically draw our attention to the underlined portion of the "new" section above an4 ask whether ttus l@nSuage means that convictions under the repealed section 564.440 are to be counted in deteradn.ing the puniahment for a conviction under Section 564.44o, Senate ~ll 78, 72nd General Assembly. Ve assume that you are referring to those Who are convicted of offenses committed after October 13. 1963. It ie the op1n1on of this office that ~one who has been previously convicted or violating "old" Section 564.440 and who then is convicted ot violating the "new" Section 564.440 because of an offense committed after October 13, 1963, ah&ll be punished aa a subsequent offender under the appropriate subsection of "new" Section 564.44o. In your letter you place particular emphasis upon the phrase "any person Who violates the provisions ot' this aectionu which is round in the "new" Section 564.44o. It 1a our view that tbe v1olatiorus reterret! to are those resulting from the activity which the statute declares to be unlawful. United states v. Dauphin, 20 Ped. 625, 627 (1884). This is the aame criminal activity, operating a motor vehicle wh14e 1n an intoxicated cond.ition, which waa prohibited by "old,. Section 564.440. The crime remains the same, only the punishment for orfensea commi.tted atter October 13, 1963, baa been changed. Section 1.120, RSMo 1959 tully supports our conclusions. It reads aa follows: "The prov1.a1ona of azv law or statute which ia reenacted, amended or revised, ao tar sa they are the same aa those ot a prior law, ahall be construed aa a con- tinuation ot auoh law and not aa a new enactment." Tbe tact that "new" Section 564 .44o provides for an increased ~um pun18hment upon conviction tor subsequent orrenaee does not make the statute retroactive nor does it run afoul. of any constitutional guaranty. State v. King, 365 Mo. 48, 275 SW2d 310 (1955). State v. Morton, Mo.SUp. 338 SW2d 858 (1960). As stated at 25 Am. Jur., Habitual Criminals, Section 3, page 261: "WhUe there are many rules ot law which may seem ~consistent with the purpose ot a habitual criminal statute and the procedure adopted to compass it• it is nevertheless sound in principle and sus- tained by reason. Aside from the offender Honorable Don E. D1rre11 and hie victim, there 1a always another party concerned 1n eve~ or~e committed, namely, the &tateJ and it does no violence to any constitutional guaranty tor the state to enhance the pun1ahment tor aecond or subsequent otf'enaee. The true ground upon which these statutes are sustained is that the punishment ia awarded tor the second otfenee only and that 1n determining the amount or nature ot the penalty to be 1otl1ote4, the legislature aay require the oourte to take into oone14erat1on the peraietence ot the det6ndant in h1a crtm1nal courae." In the Jting c ... , supra~ the legialature enacted a law 1n 1951 Which impoaed a greater pun1abmant upon thoae three t1mea convicted ot larceQ7. In that cue the court euatained a puniabment baaed upon the defendant's prior conviction• ot larceny which occurred before the enactment ot the 1951 statute. and at 275 SV2d 312 aaidt "One doea not violate Lava 1951, p. 455. unleaa he c01111n1ta a larceny tubaequent to ita effective date. The ata~ute applies to 'Every person who ehall have been convicted three times of larceny in any degree and who subsequently' cODDita anO-ther larceny. It 1a a1m1lar in this respect to §556.28o, our habitual cr~1nal act. All are charged with knowledge ot the prov1a1ona ot the statute. The allegation• ot the prior conv~ct1ona are not charges ot diet inct crimea but are merely to diacloae facts bringing the new ottenae within the statute and tor determining the cr1m1nal.1ty ot the new ottenae. In ruling that prior convictions aggravating a new ottenae need not occur subsequent to the effective date ot the statute, th• cases hold that prior oonv1ct1one ot crt.e constitute a reasonable bae1a tor the claae1f1cat1on ot ottendera With respect to the severity ot the pun1anmenta to be 1mpoaed." -4- Honorable Don B. Burrell CONCLUSION When an 1nd1vidu&l 1s convicted of driv~ng while intoxicated for an offense committed after October 131 1963 1 such person, if he has been previously convicted of one or more offenses under Section 5-64 .440, BSMo 1959, shall be punished under prov181one of Section 564.440, RSMO Cwn.Supp. 1963, and such previous convictions will be applicable in determining the puniahment t o be assessed under Section 56'1.440 RSJio Cum.Supp. 1963. ~is opinion~ Which I hereby·:·'at)p:rtove , was prepared by m::1 Assistant, Eugene o. :atshmann. £0B:bJ.1 Very truly yours, 'l'IIOMXs P. mmRSR Attorney General