Tahlequah Attorney BlogWhen the Law Changes Retroactivity: How It Affects Your Case

McGirt Has Affected Oklahoma

Video Transcribed: If the law changes, how does that impact your case? For example, let’s say registration requirements that weren’t in place, but now are. Hi, my name is Ryan Cannonie, I’m an attorney in Tahlequah with Wirth Law Office.

And one thing we’re seeing right now, especially in tribal courts after the McGirt decision last year, is changing of a lot of statutes and expanding time for the statute of limitations, making things crimes that weren’t crimes back then, at least with tribal law. And there’s a lot of questions on how this actually works and how’s this going to apply. And we’re still working through that. We’re still trying to figure that out. We’re still trying to hopefully get some appellate decisions on some of this.

But in general and in state court and, constitutionally, federal court, how it works is when something is a crime, that’s when you’re charged, that’s how it is. If later on those statutes are amended, they’re changed, Congress or the legislature comes in or even a court decision comes in and kind of alters the way things work on those, you’re not held to the new standard unless, very big “but” on here, they put in there it’s to be retroactive. If they don’t include that this is retroactive, meaning that it’s not only present now but it stretches all the way back, then you’re only under whatever the law was at the time.

For example, the greatest example of this I have are DUIs, state court DUIs. In 2011, they changed the law on DUIs that allowed if you had a… Originally, it was if you had a conviction, and a second conviction would be a felony. Well, then they changed it. So the law changed to if you have a conviction or a deferred, which is probation without a conviction, a second could be a felony. Well, a guy who had a conviction pre-2011, I think it was 2007 or six, somewhere in there. The day it’s not important, remember it was before the law changed.

He had a DUI deferred. He didn’t have a conviction, he just had a probation deferment, no conviction. So he gets another DUI. Well, under the new law at the time, his deferment counted as one stroke. His second one would be a felony. So they charged him as a felon or as a felony offense.

He took it up on appeal and said, “Hey, a deferred wasn’t counted against me back then. You can’t do it because the law changed.” And the courts agreed and said, “Hey, look, unless the legislature puts in that this is retroactive, then it only applies for the time in which it was set.”

So, when he got a DUI offense, the only thing that can make a second a felony is a conviction. Deferreds didn’t count towards a second being a felony. Then whenever you change the law, you can’t hold him to that same standard because he wasn’t given notice, he did a plea or whatever, he wasn’t told, “Hey, this could be a felony in the future.”

And so that’s an Oklahoma case law example. There are tons of others federally and just all over where the courts basically say if you’re going to make a change in the law which increases liability, increases someone’s potential to be charged, then either you have to put in, specifically that it’s retroactive, or if you don’t do that, you can’t hold someone’s past actions against them.

So going through things like that is something that’s going to have to happen over the next several months, probably years, with all these changes in Oklahoma law. And if you have questions about it, give us a call. We’ll tell you what we can.

No attorney right now can fully answer every question, because this is all very new. There’s a lot of case law out there. There’s a lot of previous decisions on certain things. But when it really comes down to it, a lot of this stuff’s going to have to work its way through the courts. I mean, 10 years ago, no one would have ever thought that we would have reservations in Eastern Oklahoma. That just seemed way out there. No one would have believed that. But now we do. And so, as the laws change, we are going to have to be adapting and change with them.

So if you have questions, you have concerns, give us a call. We’ll walk you through everything we know. And I’ll walk you through potential outcomes too. There’s sometimes we can say, “Hey, look, here’s how it was handled in these other cases, in this other place. This is potentially what you could be looking at here. Here are some of your options.” But let us know. For a quick and free consultation with a Tahlequah Criminal Defense Attorney call the Wirth Law Office – Tahlequah.

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