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Ohio’s Repeat OVI Offender Law Found Unconstitutional

*Update* On February 3, 2016, the First District (Hamilton County) Court of Appeals considered the same repeat offender specification issue and decided the other way.  In State v. Ballard, 2016-Ohio-364, the First District Court found that prosecutorial discretion in deciding whether to include a repeat offender specification does not make the statute unconstitutional if not based on an unjustifiable standard such as race, religion or other suspect classification.

Last week, the Eighth District Court of Appeals heard a constitutional challenge to Ohio’s Repeat OVI Offender Law – R.C. 4511.19(G)(1).  The court found that because the length of the mandatory jail or prison term imposed under the repeat OVI offender law depends arbitrarily on whether or not the prosecutor opts to include the specification in the indictment, it violates the right to equal protection.  It is likely this case will move its way toward the Ohio Supreme Court.


State v. Klembus

, 2014-Ohio-1830, Mr. Klembus – was charged with two counts of OVI — one for driving under the influence under R.C. 4511.19(A)(1)(a) and one for a blood alcohol result over the legal limit.

Klembus had five or more prior OVIs within the prior 20 years.  As such, he was additionally charged with a “repeat OVI offender specification,” which means that his penalties for this new offense were enhanced due to his prior convictions.

Klembus’ attorney filed a motion to dismiss this enhanced repeat OVI offender clause, arguing it was unconstitutional.  He argued it was unconstitutional because (1) it violates his rights to equal protection and (2) due process of law because the specification is based upon the same information or proof required to establish a fourth-degree felony.

In effect, the repeat OVI specification allows the prosecutor to arbitrarily get a longer prison sentence for new OVI without proof of any additional element or fact.  Due process requires that once someone has been convicted of a crime, the court can impose whatever punishment is authorized by law, as long as it is not based on any arbitrary distinction.

Ohio’s repeat OVI offender statute (R.C. 4511.19(G)(1)) states:

“an offender who, within six years of the offense, previously has been convicted of or pleaded guilty to three or four [OVI] violations *  * * or an offender who, within twenty years of the offense, previously has been convicted of or pleaded guilty to five or more violations of that nature is guilty of a felony of the fourth degree.”

Penalties Under the Repeat OVI Offender Specification

(1) If the defendant is convicted of or pleads guilty to the repeat OVI specification, a mandatory prison term of one, two, three, four, or five years.

(2) If the defendant is not convicted of the repeat OVI specification, a mandatory term of local incarceration or prison of 60 consecutive days. If the court imposes a 60 day local jail, the court may impose additional jail time as long as it does not exceed one year.  The trial court has discretion to impose up to 30 months in prison and community control sanctions if the offender has not been convicted of or pleaded guilty to the repeat OVI offender specification.

What is Wrong with the Repeat OVI Offender Law?

The problem with Ohio’s repeat OVI offender law is this: the increased penalties do not depend on a jury finding any additional facts or elements beyond a reasonable doubt.   Instead, the additional punishment – jumping from 60 days to up to 5 years – depends ONLY on the prosecutor’s decision whether or not to insert the repeat OVI offender specification into the indictment.

This allows the prosecutor to arbitrarily subject certain defendants to increased penalties that others are not subject to. 

Thus, the court found, the repeat OVI offender specification violates Ohio and the US Constitution’s right to equal protection.

If you have prior OVI convictions and are concerned about possible enhanced penalties under a new conviction, talk to an OVI attorney about your options.  (614) 361-2804.