Mississippi Advisory Opinions September 12, 1989: 19890912 (September 12, 1989)

Advisory Opinion Text

Honorable Jim W. Rose

Attorney at Law

Post Office Drawer 4245

Gulfport, Mississippi 39502

Re: Nonadjudication Statutes Implied Consent Law

Dear Mr. Rose:

Attorney General Mike Moore has received your letter of request and has assigned it to the undersigned for research and reply. In your letter you state:

“That issue is whether or not a person who was (1) arrested for DUI before June 30, 1989, or (2) convicted in the City Court of DUI before June 30, 1989, or (3) whose case was pending on the docket in the County Court on appeal before June 30, 1989, can be considered as a candidate for nonadjudication in light of the fact that nonadjudication is now prohibited for DUI cases on and after July 1, 1989, pursuant to the most recent legislative amendment to the nonadjudication statute. [House Bill No. 49]”

Although the nonadjudication remedy is not in the nature of punishment under the penalties provisions of the Mississippi Implied Consent Law contained in § 63–11–30, of Miss.Code Ann .1972 as amended, nonadjudication is more than procedural. Rather, it is a substantive right which the defendant stands to lose. Section 99–19–1, Miss.Code Ann .1972, is then operative. That section states that a change of law should not affect the prosecution or punishment of a crime which was committed prior to the change. The section further provides that laws which define a crime or fix its punishment or penalty will continue to operate for purposes of punishment or the collection of penalties, notwithstanding statutes which repeal or amend the law unless the provisions specifically provide otherwise.

A case which interpreted § 99–19–1 is Jordan v. State , 464 So.2d 475, 482–483, (Miss.1985), vacated on other grounds, 476 U.S. 1101 (1986). Under the analysis in Jordan, an ex post facto issue comes into play only when the implementation of statutory changes affect the crime or its punishment. The court further noted that the change must be more burdensome than the prior law. The legislative amendment, while not penological, is definitely more onerous than the previous remedy offered DUI offenders and affects a substantive right. It should also be noted that the protection against ex post factor laws is a constitutional one contained in Article 3, Section 16 of the Mississippi Constitution of 1890 .

Accordingly, the amendment which abolishes the nonadjudication remedy as it pertains to persons convicted of driving under the influence of intoxicating beverages prior to July 1, 1989 does not operate to deprive those persons of the nonadjudication remedy. Defendants who were arrested or convicted of DUI offenses, or who have appealed their sentences prior to July 1, 1989 are still eligible for the nonadjudication route.

Very truly yours,

Mike Moore, Attorney General.