Articles Posted in DUI/OVI sentencing/penalties

Raymond Wells walked out of court thinking he knew his sentence and was probably surprised when he later learned it included more than what the judge told him in the courtroom. There is a common saying in the law that “the court speaks through its entries”. What happens if the judge says one thing in open court but another in the sentence entry? A recent case from the Sixth District Court of Appeals gives us an answer.

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The case is State v. Wells. Wells was originally charged with OVI ‘per se’, OVI ‘impaired’, and Marked Lanes. His lawyer negotiated with the prosecutor and reached a plea agreement. According to the plea agreement, the prosecutor would dismiss the charge of Marked Lanes, dismiss one charge of OVI, and amend the other charge of OVI to a charge of Physical Control Under the Influence.

The Judge Told The Defendant The Sentence
Wells appeared before the judge for a plea hearing. The prosecutor did not appear but did provide the judge with a written motion containing the plea agreement. Wells pled guilty to Physical Control, and the judge verbally announced the sentence. The announced sentence was: (1) 33 days in jail with three to be served in a driver intervention program and 30 suspended; and (2) a fine of $375 plus court costs. The judge also made reference to granting driving privileges and imposing a license suspension if the fine weren’t paid.

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The consequences of an OVI/DUI conviction can go well beyond the fines, jail time, and license suspensions imposed by a Judge. Collateral effects like higher insurance premiums and lost employment opportunities can follow someone well after their case has been resolved in court. Some states, even notoriously tough-on-crime states like Texas, allow first-time OVI/DUI offenders to avoid the long term consequences of a conviction by completing a pretrial diversion program.

Get-out-of-jail-and-uncle-sam-300x224What is Diversion?
The general idea of diversion is that first offenders should be given an opportunity to learn from their mistakes and correct the underlying causes of their criminal offense without the stigma of a conviction. If an applicant meets the entry requirements, typically meaning the person has no prior criminal history and is charged with a qualifying offense, the applicant can be accepted into a diversion program. These programs typically require the participant to complete counseling and/or educational courses, perform community service, attend regular meetings with a probation/diversion officer, and maintain a clean criminal record for the duration of the program.

Many jurisdictions have diversion programs, covering a variety of offenses. The specifics of the programs vary depending on the jurisdiction and the offense. For example, the Texas program allows first-time DUI offenders with otherwise clean records to complete a year of probation supervision which includes monthly meetings, community service, drug/alcohol counseling, and the installation of an ignition interlock device on their vehicles. Successful completion of this year-long program results in the DUI charges being dismissed, which means they are able to move forward without a conviction on their record.

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If you think about the consequences of getting a DUI (called OVI in Ohio), the first thing which comes to mind is probably the sentence from the court. There is good reason for that: the sentence includes a mandatory jail term, license suspension, and fine as well as possible yellow plates, ignition interlock, and probation. In addition to the sentence imposed by the judge, however, there are collateral consequences for DUI/OVI convictions. One of those consequences is skyrocketing auto insurance premiums.

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How Are Insurance Premiums Calculated?
Auto insurance premiums are determined by what an insurance company expects to be the amount of risk associated with a particular driver and car. There are many factors which affect the cost of auto insurance. Those factors include the type and age of the car, how far and frequently the vehicle is driven, and the state in which the vehicle is used. Other factors are the driver’s age, gender, marital status, credit history, and driving history.

 

Why Does A DUI/OVI Affect Premiums?
With regard to driving history, one of the most expensive entries in a driving record is a conviction for DUI/OVI. Studies show that DUI/OVI is a risky driving behavior which leads to more crashes than practically any other driving behavior. In addition, insurance companies conclude that a person who engaged in that risky behavior is likely to repeat it in the future.

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When a trooper’s DUI charge is dismissed, it may appear the trooper is getting special treatment. In the case of N.C. trooper Dennis Tafoya, the DUI charge was dismissed because the evidence didn’t prove he committed a crime. Although he may have been very intoxicated while sitting in his car, the car was not running. In North Carolina, that is not an offense. In Ohio, the law is different.

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According to the news report about the trooper’s case, officers found him passed out in the driver’s seat of his vehicle, parked near the courthouse. The officers ordered him out of the vehicle and asked him if the vehicle was on. He said yes. The officers determined the trooper was intoxicated, arrested him, and charged him with DUI (called “OVI” in Ohio).

Footage from the officers’ body cameras showed the trooper’s vehicle was not running. One of the officers went to move the car and learned the keys were not in the ignition. It turned out the keys were in the trooper’s pants pocket the entire time: they were not in the ignition when the officers arrived. Once the officer got the ignition key from the arrested trooper, the officer found the trooper’s vehicle was in gear. The vehicle was apparently a stick shift, so, if it was in gear, it could not have been running.

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After years of working as a first officer for a commercial airline, Andrea is finally about to become a captain. To celebrate, she goes to dinner with friends and has a couple drinks. On the way home, she forgets to signal a right turn, and an officer stops her. The officer smells alcohol and has Andrea perform field sobriety tests. The officer says he notices ‘clues’ on the tests and arrests Andrea for DUI (called OVI in Ohio). As the cuffs go on, all she can think about is what will happen to her pilot’s license and her career.

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Legal Turbulence For The Pilot And Her Attorney
It seems logical that a pilot’s license would only be jeopardized if the pilot is convicted of OVI. What makes sense logically is not always what occurs with the federal government. And it is the federal government, specifically the Federal Aviation Administration (FAA), which has responsibility for pilot (“airman”) licenses. The FAA will, in fact, impose sanctions for an OVI conviction. But there are other infractions, not obvious to attorneys, for which pilots could crash and burn.

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A few days ago, the state of Ohio began imposing increased penalties for DUI (known in Ohio as OVI). The increased penalties are part of House Bill 388, commonly known as “Annie’s Law”*. The legislation is not really one law but a revision of nearly 20 statutes and creation of one new one. Effective April 6, 2017, “Annie’s Law” provides for longer driver license suspensions, encourages increased use of ignition interlock devices, and results in more defendants being punished as ‘repeat offenders’.

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Ohio DUI / OVI Driver License Suspensions Just Got Longer
If a person pleads guilty to OVI or is found guilty of OVI, the court must impose a driver license suspension. The length of the license suspension is chosen by the judge from a range mandated by legislation. The range mandated by legislation increased with Annie’s Law. The following table summarizes license suspension lengths for Ohio OVI convictions:

Offense in ten years Old license suspension New license suspension
First 6 months to 3 years 1 year to 3 years
Second 1 year to 5 years 1 year to 7 years
Third 2 years to 10 years 2 years to 12 years
Fourth or Fifth 3 years to life 3 years to life

 

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In Ohio DUI / OVI cases, mandatory minimum penalties are increased based on prior OVI convictions.  One issue faced by Ohio courts is whether a person’s OVI adjudication (‘conviction’) as a juvenile can be used to enhance a subsequent OVI sentence as an adult.  The Ohio Supreme Court recently issued an opinion which settles the issue.

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The case of State v. Hand did not involve an OVI, but the decision will apply to OVI convictions.  Hand was convicted of Aggravated Burglary, Aggravated Robbery, Kidnapping and Felonious Assault.  Those offenses are categorized as first degree felonies and second degree felonies.  Ohio Revised Code section 2929.13(F)(6) says the judge must impose a mandatory prison term for first and second degree felonies if the defendant has a prior conviction for a first or second degree felony.  Ohio Revised Code section 2901.08(A) says a juvenile adjudication for a criminal offense or traffic offense is a ‘conviction’ for purposes of determining the sentence in a later conviction.  Relying on those two Ohio Revised Code sections, the judge imposed a mandatory prison term.

Hand appealed the judge’s sentence, and the case was ultimately heard by the Ohio Supreme Court.  The Court noted the juvenile justice system is different than the adult criminal justice system.  Juvenile case dispositions are intended to be “civil and rehabilitative”, while adult sentencing is “criminal and punitive”.  The court also noted that, while juveniles are afforded most of the same Constitutional rights as adults, there is one right not required in juvenile court proceedings:  trial by jury.

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A judge in Columbus, Ohio found a man to be in violation of probation because the man was unable to urinate upon request.  The judge was aware the defendant, Mr. Hand, had medical problems which caused urinary difficulties and was taking medication designed to increase his urination.  Nevertheless, the judge concluded Mr. Hand’s inability to urinate constituted a “refusal” to submit to a urine test.  Individuals placed on probation for DUI/OVI in Ohio do not have this kind of experience, ordinarily.  But this was no ordinary case.

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Ordinarily, probation (also called “community control” in Ohio) is imposed by a judge for two reasons.  First, probation is imposed so somebody has the responsibility of monitoring the defendant’s compliance with court orders.  That somebody is the probation officer.  Second, probation is imposed to give the defendant incentive to comply with court orders.  If a probationer does not comply with court orders, judges can impose more restrictive probation conditions, lengthen the duration of probation, and impose jail time.

Before a judge can sentence a person for violating probation, the judge must hold a hearing.  At the hearing, the judge first determines if there is probable cause to believe the defendant violated probation.  The judge then determines whether the defendant did, in fact, violate probation.  If the judge concludes the defendant violated probation, the judge imposes a sentence:  more restrictive conditions, additional probation time, and/or jail time.

In the case of Mr. Hand, the judge ordered pretty common probation conditions:  Mr. Hand was ordered to complete a driver intervention program, complete any follow-up counseling recommended by that program, and complete 80 hours of community service.  He was also required to submit to alcohol/drug screens and not refuse any tests (for alcohol/drugs).

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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.

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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.

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I’m traveling to another state for a seminar next week. It just so happens the state is Nevada, and the seminar is in Las Vegas. For me, there is no risk of being convicted of DUI in Nevada because the trip is all about education! Sometimes, however, an Ohio driver comes home with the unwanted souvenir of an out-of-state DUI conviction. When it comes to DUI, what happens in Vegas does not stay in Vegas: there are consequences in Ohio for a DUI conviction in another state.

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The consequence in Ohio for an out-of-state DUI conviction is suspension of the person’s Ohio driver license. Another state cannot suspend an Ohio driver’s license. Instead, if that state is part of the Interstate Driver License Compact, that state transmits to the Ohio Bureau of Motor Vehicles (BMV) information that the Ohio driver was convicted of DUI in the other state. The Ohio BMV then takes action against the person’s Ohio driver’s license according to Ohio law.

Ohio law instructs the Ohio BMV to impose a license suspension on any person who is convicted of DUI in another state. Ohio Revised Code 4510.17 states the suspension shall be a ‘Class D’ suspension, which means the suspension is six months. When the BMV receives the report from the other state, the BMV sends a notice to the driver indicating his or her driver license will be suspended beginning 21 days after the day the notice was issued.

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