At the last minute, without warning, the government convicted Demetrius of a more serious offense than with which he was originally charged. Demetrius received a ticket for OVI. The ticket informed him he was charged with a low-tier ‘per se’ OVI, which carries a minimum of three days in jail and does not involve mandatory restricted (yellow) license plates. Just before his case was finished, the court permitted the prosecution to change the charge to a high-tier ‘per se’ OVI, which carries a minimum of six days in jail and mandatory yellow license plates. Can the government to that?
That question was answered in the recent case of State of Ohio v. Demetrius Rosemond, and the answer is not obvious. It involves interpreting Rule 7 of the Ohio Rules of Criminal Procedure. That Rule addresses amendment of complaints, and a traffic ticket is a type of complaint. The Rule says a complaint may be amended, “provided no change is made in the name or identity of the crime charged.” The question in the Rosemond case is whether amending the ticket from a low-tier OVI to a high-tier OVI changes the name or identity of the crime charged.
The Ohio Supreme Court ruled on a similar issue in State v. Campbell. In Campbell, the defendant was charged with violating Ohio Revised Code section 4511.19(A)(5). With that particular sub-section (the  at the end), the government alleged the defendant had a blood alcohol concentration over .08. The trial court permitted the prosecution to amend the ticket to 4511.19(A)(6). With that amended subsection (the  at the end), the government alleged the defendant had breath alcohol concentration over .08.
The Court reasoned that the subsections involved have the same name and identity: driving with prohibited concentrations of alcohol in bodily substances. The Court held, therefore, the amendment did not change the name or identity of the crime charged, so the amendment was permissible.
The amendment in Campbell is different than the amendment in Rosemond. In Rosemond, the defendant was originally charged with violating Ohio Revised Code section 4511.19(A)(1)(b). That subsection alleged he operated a vehicle with a breath alcohol concentration of .080 to .169. The prosecution amended the charge to 4511.19(A)(1)(h). That subsection alleged he operated a vehicle with a breath alcohol concentration of .170 or higher. The (h) subsection is commonly referred to as a high-tier offense.
A high-tier offense carries enhanced mandatory penalties which are not mandatory for the low-tier offense. The enhanced penalties are three additional days in jail and the requirement of restricted (yellow) license plates. The Rosemond court, citing precedent, concluded an amendment which changes the penalty for an offense is a change to the “identity” of the offense. Criminal Rule 7 prohibits changing the “name or identity” of the crime charged. Accordingly, the prosecution is not permitted to amend the OVI charge from a low-tier offense to a high-tier offense.
The DUI/OVI defense lawyer in Rosemond did some commendable work. It is easy to look at precedent like Campbell, assume a legal issue is a loser, and give up. It is more rewarding, however, to face challenges and find a way for the client to prevail.