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Specification for repeat OVI Convictions Constitutional

Raising the felony level and imposing an additional mandatory prison term on offenders convicted of operating a motor vehicle while under the influence (OVI) five or more times within the previous  20 years does not violate the Equal Protection Clause of the U.S. or Ohio constitutions, the Ohio Supreme Court ruled today.

Writing for a unanimous Supreme Court, Justice Judith Ann Lanzinger explained that two state statutes working in tandem to increase the degree of the felony for repeat OVI offenses and to require additional prison time are part of a constitutionally valid system of graduated penalties.

In 2012, Dean Klembus was arrested in Cuyahoga County for driving under the influence of alcohol and driving with a breath-alcohol concentration of more than 0.17 percent. This was his sixth charge since 1992, and because he had been convicted of OVI five times within the previous 20 years, he was charged with two fourth-degree felonies under R.C. 4511.19(G)(1)(d) and the repeat OVI specification in R.C. 2941.1413.

In the trial court, Klembus sought to dismiss the repeat OVI specification arguing it violated his equal protection rights because the specification allows the state to seek greater punishment without providing proof beyond that required to trigger the higher felony level. The trial court denied the motion to dismiss, and Klembus pled no contest to both counts.  The court found him guilty and merged the two counts. Eventually Klembus was sentenced to two years in prison on the merged OVI count: one year for the OVI offense and one year for the repeat-OVI specification, to be served consecutively. 

He appealed to the Eighth District Court of Appeals, which in a 2-1 decision reversed, holding that criminal laws violate equal protection rights if they require the same proof yet impose different penalties.  The court of appeals also concluded that the specification was not uniformly charged and remanded the case to the trial court to vacate Klembus’s repeat-OVI specifications. Cuyahoga County prosecutors appealed the ruling to the Supreme Court.

Equal Protection Does Not Require Equal Penalties
Justice Lanzinger wrote the Eighth District misapplied the Supreme Court’s 1979 State v. Wilson decision when it decided that Klembus’s equal protection rights were violated. This is not a case of two statutes prohibiting identical conduct and imposing different punishment, she said.  A specification, such as the repeat OVI penalty enhancement, does not prohibit conduct, but is just a factor that increases the punishment.

“The mere status of having a history of OVI convictions is not a criminal offense in Ohio. The conduct prohibited in this case was Klembus’s act of driving while under the influence in 2012. Because this case does not involve multiple criminal offenses, Wilson’s equal-protection analysis does not apply here,” she wrote.

State Had Rational Reason to Impose Enhanced Prison Time
Equal protection does not forbid the legislature from making classifications, such as that for repeat OVI offenders, but simply prohibits “treating differently persons who are in all relevant respects alike.” Justice Lanzinger explained. Unless a challenge involves a suspect classification, like a race-based or gender-based class, or a fundamental interest, then a court will use a “rational-basis test,” to determine if an equal protection violation exists.

Justice Lanzinger set forth the graduated penalties that apply for repeat OVI offenses. R.C. 4511.19 makes all first and second OVI offenses within six years a first-degree misdemeanor. For those with three or four misdemeanor OVI convictions in the past six years, the penalty is a fourth-degree felony. The same is true for all OVI offenders who have five or more OVI convictions in the past 20 years. For an offender already convicted of a fourth-degree felony, the next OVI conviction is a third-degree felony.

The opinion further explained that as the degree of crime increases, so does the penalty. Within the misdemeanor category, an offender with a single prior OVI conviction in six years faces a maximum of six months in jail, while an offender with two prior OVIs faces a year in jail. All those with fourth-degree OVI felony convictions face a base term of 30 months plus 60 or 120 days depending on the type of substance impairing the driver, and if the driver refused to submit to testing. Third-degree felony offenders face a base 36 months in prison, plus 60 or 120 days.

Justice Lanzinger wrote the repeat OVI specification under R.C. 2941.1413 is applicable only to third-degree or fourth-degree felony offenders with more than five convictions in 20 years. When the specification is applied, a mandatory prison term of one, two, three, four, or five years is imposed in addition to the base term of imprisonment for the underlying fourth- or third-degree OVI offense.

Variation in Penalties Are Not Based on Arbitrary Standards
“It is well established that the government has a valid interest in combating recidivism,” Justice Lanzinger said.

She noted Klembus did not object to the varying prison terms that might be imposed, but to the scheme that allows them to be calculated based on what prosecutors seek. Justice Lanzinger explained how a graduated system of punishment based on the number and seriousness of the offenses, and the range of penalties is not illogical or arbitrary.

“In substance and operation, R.C. 4511.19(G)(1) and R.C. 2941.1413 establish a graduated system of punishment for OVI offenders according to the number and seriousness of prior OVI convictions. An offender with five or more prior misdemeanor OVI convictions can logically receive a heavier penalty than one with four or fewer prior misdemeanor convictions. Similarly, another offender may receive a lesser penalty than someone with five or more OVI convictions that include felonies,” the opinion stated.

Justice Lanzinger wrote that because these different penalty levels might be devised through higher offense levels or sentencing enhancements or both becomes immaterial.

“The possibility of longer prison sentences for those who continue to violate Ohio’s OVI statute is rationally related to the state’s legitimate interest in punishing offenders and protecting the public from the dangers of impaired driving,” she concluded.

The Court reversed the Eighth District decision and reinstated the trial’s court sentence of Klembus to consecutive one-year prison terms.

2014-1557. State v. Klembus, Slip Opinion No. 2016-Ohio-1092.

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