Interpreting Ohio’s DUI/OVI sentencing law can be complicated. The sentencing statutes take up many pages in the Ohio Revised Code (O.R.C.), and appellate courts have issued many decisions interpreting those statutes. One issue which has led to confusion is how a court is supposed to sentence a defendant convicted of felony OVI and a ‘repeat offender specification’. This issue is complicated enough that different appellate courts in different districts of Ohio have reached different conclusions. The Ohio Supreme Court recently acknowledged the conflict among the appellate courts and issued a decision which resolves the conflict and establishes one rule for the entire state.
In State v. South, the defendant was convicted of third-degree felony OVI and was also convicted of the repeat offender specification. The trial court sentenced the defendant to five years in prison for the felony OVI and three years in prison for the repeat offender specification. The trial court considered both prison terms ‘mandatory’ and ordered that the prison terms run consecutively, for a total of eight years. The trial court’s decision was appealed to the Ninth District and ultimately the Ohio Supreme Court. The issues decided by the Ohio Supreme Court were: (1) in this situation, what is the maximum prison term for a third-degree felony OVI; and (2) whether the prison term for the felony OVI is mandatory.
To analyze the issue in State v. South, we must first understand there are three ways a person may be convicted of felony OVI. First, if the OVI conviction is the person’s fourth or more within six years, the offense is a fourth-degree felony. Second, if the OVI conviction is the person’s sixth within 20 years, the offense is a third-degree felony. Third, if the OVI conviction is the person’s second lifetime felony OVI, the offense is a third degree felony.
In addition to understanding felony OVI, we must also understand the repeat offender specification in O.R.C. 2941.1413. When an indictment charges a defendant with felony OVI, the indictment may also contain a ‘specification’ that the offender, within 20 years, previously was convicted of five or more OVI offenses. If an indictment contains this repeat offender specification, the court must impose a ‘mandatory additional prison term’ of one year to five years pursuant to O.R.C. 4511.19(G)(2).
Finally, we must consider the possible prison terms for a third degree felony. There are two possible ranges of prison terms for third-degree felonies, depending on the offense committed. For offenses listed in Ohio Revised Code section 2929.14(A)(3)(a), the prison term range is 12 months to 60 months. For offenses not listed in that paragraph, the prison term range is nine months to 36 months.
Appellate courts have reached different conclusions about how the sentencing statutes are to be synthesized in this situation. Some appellate courts concluded the prison term range for the felony OVI is nine months to 36 months, and other appellate courts concluded the appropriate range is 12 months to 60 months. The courts also had conflicting opinions regarding whether the prison term for the felony OVI is mandatory.
The Ohio Supreme Court harmonized the sentencing statutes and clarified the confusion. The Court held the following: (1) for the repeat offender specification, there is a prison term of one year to five years, and the prison term is mandatory; (2) for the repeat offender specification, the prison term must be served prior to and consecutive to any additional prison term for the felony OVI; and (3) for the felony OVI, the prison term is nine months to 36 months, and the prison term is discretionary rather than mandatory.
I told you interpreting Ohio’s DUI/OVI sentencing law can be complicated! This particular issue is complicated enough that not all of the Supreme Court justices agreed on this interpretation: two of the justices dissented. Despite the dissent, the South case clarified the confusion and established one rule for all trial judges in Ohio to follow when a defendant is convicted of a felony OVI and a repeat offender specification.