(1) A person charged under statute before its repeal may be tried thereunder after its repeal. However, the maximum punishment cannot exceed that imposable under the new statute (Section 564.440, RSMo Cum. Supp. 1963), and the minimum punishment may be imposed under the repealed statute (Section 564.460, RSMo 1959). (2) Felony convictions for obtained prior to October 13, 1963, may be pleaded and proved against a defendant to punish him as a subsequent offender under Section 564.440, RSMo Cum. Supp. 1963. (3) The information or complaint should recite the necessary elements of and the prior convictions should be pleaded in the same manner as priors under Section 556.280, RSMo 1959.

Criminal Law: (1) A pE r~on charged under D\III statute before its repeal may be tried thereunder after its repeal . HowGver, the maximum punishment cannot exceed that imposable under the new Dvli statute (Section 564 .440, RSMo Cum . Supp . 1963) , and the minimum punishment may be imposed under the repealed D\H statute (Section 564.460, RSMo 1959) . Misdemeanors : Felony : Dri v lng vlhile (2) Felony convictions for DWI obtained prior to October 13, 1963, may be pleaded and proved against a defendant to punish him as a subsequent offender under Section 564.440, RSMo Cum. Su~p . 1963. Intoxi cated: Drunk Drivers : Motor Vehicles : Habitual Criminals : Informations : (3) The information or complaint should recite the necessary elements of DWI and the prior convictions should be pleaded in the same manner as priors under Section 556.280, RSr-1o 1959 . January 31, 1964 Honorable Charlo& H. Baker Proeeouting Attorney Dunklln County OPINION NO. 450-1963 NO . 28-1964 F I L r. .) 28 KGnnett, Miseouri Dear Nr. Bakel .. : 'Ibis 1a in reply to your opinion request or Rovembe~lih------' 1963~ 1n Wblch you ask tor certain legal 1nterpretat1ons ·- - under the new ''driving while tntoneated" statute, known aa Section 564.44o, RSMO cum. Supp. 1963. I. Your first inquiry ia as follows r '"Ia a pending relo~ charge tor DWI unc1er the prior law atteoted by the new law, and if so. to what extent?" un4er Seot1orus 564.440 and 564.460, RSMo 1959, driving tm1le intoxicated was a felonJ punishable by imprisonment in the penitentiary, by confinement 1n the county jall, ol' by a f1ne or both. Theae eect1ona, however, were repealed by Section 564.440, RSMo CUm. Supp. 1963, whereby the first an~ aeeond ottenses of driving while intoxicated were deemed misdemeanors and punishable aa such. However, a third and subsequent offense was deemed a felony and punishable as such. Section 564.44o, RSilo CUm. Supp. 1963, provides as follows: "llo pereon shall operate a motor vehicle whlle in an intoxicated condition. Any person Who violates the provia1one c4 thia aeeti on shall be deemed guilty ot a m18demeanor on conviction ror the firat two violations thereof, and a felony on Honorable Cha.I'l.ea H. Baket' conviction fox- the third and subsequent v~olations thereof, and, on conviction thePeot 1 be punished a.s followlu "(l) Per the ttrat offense, by a tine or not 1eaa than one hundred dollars o~ by itnpr1aonment tn the county Jai.l for a term not el(eeeding ox months* Ol' by both .su-ch tine and imprisonment; " ( 2) Fo.r the aecond otfenee, by etont1,ne- ment in tne e.ouney JaU fo,. a t.et-m ot not leas than f1tt~n dap and not exc.eedins one 7e&rJ "(3) Pox- the tblrd and subsequent offenaee* by eont!~nt ~ the county jail fo~ a term ot not lees than ninety daf& and not more than one v~ar 0'1! b~ iJQPr1tonment by tho department of co-rrections tor a verm O"f net leae than two y:eare and not exe•eding five 7ears; •r(4} Evidence ot priol'f eonv1et1o.ne ahall b$ beud and d•termined by tll.e trial court, out ot the bea~.tng ot the Jtn"Y prior to th$ aabmiaston ot the c•~e to the Jury, and the e~t shall enter 1te tlndinga thereon; "(5) Any other provision 1n section 302.309* ftSKO * to tho oontr&ey notwi thstand:ing~ when · • colll:"t having jurisdiction finda that a ohau£teu:r or- oper-ator i!J r~quind tQ operate a motor vehicle 1n corul~etion with his b-U.$1neee., ooell$)&tion or employm$nt, tbG eo~t mav grant sueh ltm1te4 driving pr1v1l&ge aa the c1rcumstancea ot the case may justify it the oo\ll't alao finds undUe bardehip on &aid in(U.vidual. in earning a liV(ll.tboodJ provided, however, no such limit~d privilege &hall be granted atter convict!on of a tMcond o.ttenae ot the er1me ment~oned herein.~ -2- Honorable Charles H. Baker Section 1.160, RSMo 1959, provides ae followss "No offense committed and no fine, penalty or for~e1ture incurred, or prosecution commenced or pendtng previ ous to or at the time when any statutory proviaion 1s repealed or amended, shall be arreoted by the repeal or amendment 1 but the trial an~ punishment or all such otrenaea, and tho rocovery ot th• tinea, penal ties or forfeitures shall be had, i n all reepecta, as 11' the provision had not been repealed or uended, except ( 1) tbat all such prooeedj_nga shall be conducted according to existing lava; and (2) that 1f' tho penalty ~r puni shment tor anr orrenee is reduced or leaaenod by any alter- atlon or the law creating the ortenae, the penalty or pun.1.8h~J:l$nt ah.all be assessed aceordinz to the amendatory law. " In v1ev or th1e section, it an individual, prior to the ettectivc date ot Section 564.44o, RSMo Cum. Supp. 1963, was charged by Lntormation or ~dictment with the vi~lat~on ot the felony of dr~Ving whi le ·intoXicated under Section 564.440, RBMo 1959., but waa not convicted theretor p.rior to the effective date of Section 564.44o, ftSMo Cum. S"U)p. 1963, he may pre•ently be prosecuted !'or the vaolation ot Section 564.440, RSMo 1959, but the r:taXimw:n puniohmont upon conviction shall not be grea~or than that authorized b7 Section 564.440, RSMo Cum. Supp. 1963. However, the mi-~ puniahm~nt provided b~ Section 564.440, RSRo Cwn. supp. 1963. 1a not applicablo to auch a conviction, and p~Shment authorized by section 564.460, RSMo 1959l lese than the m1n±mum punishment authorized by Section 564.440., RSMo Curt, Supp. 1963,. may be imposed. The 1noreaaed minimum QUn1Shment• authorited by Section 564.4401 RSRb cum. Supp. 1953, are not appli¢able in auoh a situation because applleat~on o~ such increased oinimw~ puniehmenta tor a crime committed. b.efo:re October 13, 1963, would be unconatitutloual becauae it would be 1n violation of Section 131 Article I. or the Constitution of M1o•our1~ which -3- Honor able Cbarlcs H. Baker providea that no ex poat raoto law can be enacted, and in violation or Seo~ion 10, Article I, of t he United States Conet1tut1on, which pr ovides that no state shall pass any ex post aacto law. In the oaoe or Lindsey v . Washington, 301 u.s. 391. 51 SUp.Ot. 7~7, 61 L. Ed. 1182, the United Statea Supreme Court stated, at l . c. u.s. 401: ''The Constitution to1•bids the application of any new punitive measure to a crtme alr~ady consummated~ to the detr!ment or mater ial disa,1vantagc of the \froncdoer. " II. Your o~ol'ld il1Qulry t;i;atos : "Are th~ prior oonvi cti~no ~ten-- d to in t e statute• in the state only und~r the now law, or would prtor eonviotiona or ~~ in ~hiB state or any other jurisdiction be taken under cons1derat1.on?'' A recent opinion or this orttce, issued on January 6, 1964. to Mt-. Donald Burrell, Prosecuting Attox·ney., Greene County1 Springfield, Miosour1, rully covero this question. Thia opini on adv1eed that any pe,reon who 1s oonv1etec1 ot operatlng a moto~ vehiole in an intoxicated condition under Section 5G4.4J~o, RSl-!0 Cwn. Supp. 1963 (to1" the eammioaion ot auch offenBe after October 13, 1963), and who waa prev1ouely eonv1oted of violati n$ Section 564.440, RSHo 1959, shall be punished au a subsequent offender under the applicable provision or Section ~~.440, RSMo cum. SUpp. 1963. A copy ot said opuLLon 1a attached hereto. III. Youv third 1nqu1ey stat es as follow a: "t'lhat is the appropri.ate uwdina or an information or complaint under each of th tlu~ec aubseotions or 564.440? ~ An information or complaint drawn under subsection l should merely recite the necosaary elements ot dr1~ while -4- Honorable Charles B.. Baker intoxicated. However, an information or eompla1nt drawn under subsections 2 and 3 ahould recite not only the elements setting torth the present charge o£ driving while intoldeated b1.1t# 1n addition thereto~ should set forth the tact that the de£endant has been prev1oualy convicted of driving while intoxicated. Aa stated in State v. McClay, 78 A. 2d 347. 350 (5} I " • When a atetute 1mpoaea a h1gbel' penalty uPon a second and third con- viction. respe.ot1vely, it .mes the prior conviction ot a similar offense a part ot the deacription and charac- ter or the otrenae intended to be punished; and therefore the tact o1' such prior conviction muat be charged as well as proved. • • *'" Bee alao State v. Eickler, 248 Iowa 1267. 83 If. W. 2d 576; 42 Corp~• JUria Secundum, Indictments and Information•, section 145 B, page 1059. In essence the pr-1or conviction should be pleaded in the same manner ae prior• pleaded under our so called Habitual Cr,mtnal Act (Section 556.280, RSMo 1959). »1 ~ ot procedure~ howe~er 1 these prior convictiona alleged in tbe 1ntormat1on must be proven 1n the :sauD& manner aa other prior convictions and heard by the judge out ot the hearing or the jury~ and the judge muet make hi a finding thereon prior to the aub)Z11aa1on ot the caae to the J\117 [Section 564 .440( 4). RSMo Own. Supp. 1963]. Th1e 1a necessary 1n order that the J~ may be correctly directed aa to the pun11bment to be .tmpoaed. 1n the event the 3Ul7 t1nds the de£endant gu.11ty. Jlor~ unlike our habitual cr1m1nal atatute 1 tbe JUX7 and not the Judge determines detendant • e punishment tor the violation or this statute. Conc1ua1on I. Although an individual charged with driving while intonoated under Section 564.440, RSMo 1959, prior to ite repeal date or October 13, 1963, may still be prosecuted under this repealed statute after October 13, 1963, the maximum punishment cannot be greater ~han that author1zed by Section 564._44o., RSJio CWn. SUpp. 1963, but the minimuJn punishments provided in Section 554.4401 RSMo cum. Supp. -5- Honorable Charles H. BakBr 1963, are not applicable and pun1~ent less than the ~mum auth~l&ed by Section 56- .440, BSMo Cum. S~pp . 1963 ~ may be tmpo•ed aa authorized by Section 564.460, RSMP 1959. II. An 1n41v1dual 1 o felony convi.ot1ons ror driving While 1ntox1oated Obtained prior to October 131 1963, may be ueed to punish hj,q1 ae a subsequent o£tender under section 564.440, R8110 CUm. Supp, 1963~ for the oonmtea1on o~ an ott»enae after October 13, 1963. ni. An 1ntormat1on or complatnt ehould ~1te the neceaaarg elements or driv1ng while intoxicated. A prior conviction should be pleaded 1n the aame manner as pt:t1ore undeJ'! ou:- so called Habitual Criminal Act (Section 556. 28o, RSifo 1959) • nte roregQ1J'l8 op1n1on, lltl1eh I he:reby approve, wae prepared by ID1 aaa1atant George w. ~J)er. n. Olh8J Enclosure verv truly TOlll'a, tlttiiiB r. '!AGU!VH Attorney General -6-