“Shawn, it’s Joe Smith. You’re not going to believe this, but….” I believe it, because I’ve received this call more than once. My client has a D.U.I. (O.V.I.) pending, we’re scheduled to go back to court soon, and the client is charged with a second D.U.I. This recently happened in a Florida case, with a twist.
The case in Florida involved a young woman named Jennifer. After receiving a report about Jennifer driving recklessly, an officer observed Jennifer stumbling out of a store with a can of beer. When the officer pulled her over, Jennifer had two empty bottles of Vodka in her car. She refused field sobriety tests, was arrested, and was charged with a D.U.I. The twist: she was on her way to court for a previous D.U.I charge.
For O.V.I. offenses in Ohio, the penalties increase significantly for a second offense within six years*. While a first offense carries a minimum jail sentence of three days, a second offense carries a minimum jail sentence of ten days. That minimum sentence is doubled if the suspect refuses the breath test or tests at or over .170. A second offense also carries a longer license suspension and mandatory yellow license plates.
Ohio O.V.I. law has a twist of its own. Ohio Revised Code section 4511.19(G) says it’s a “second offense” if “an offender who, within six years of the offense*, previously has been convicted of or pleaded guilty to one” O.V.I. If the defendant pleads guilty to O.V.I. #1, then is charged with O.V.I. #2 and pleads guilty to O.V.I. #2, the second one will be a “second offense” for sentencing.
However, if the defendant is charged with O.V.I. #1 and is charged with O.V.I. #2 before being found guilty of O.V.I. #1, both will be “first offenses” with regard to the minimum mandatory sentence. This is due to the phrase “within six years of the offense, previously has been convicted….” At the time of offense #2, the defendant had not been previously convicted of an O.V.I.
There are lessons to be learned from the twist in Ohio law and the twist in the Florida case. First, if you get charged with O.V.I. and you think you may get charged with a second O.V.I. in the near future, don’t plead guilty until after you are charged with the second one! Second, don’t drive drunk to your O.V.I. court appearance!!
*The ‘lookback period’ for Ohio OVI charges was increased to ten years on April 6, 2017.