The Ohio Supreme Court was recently asked to examine two statutory provisions: (1) Ohio Revised Code (ORC) 4511.19(G)(1)(d), which raises a DUI / OVI offense to a 4th degree felony, and (2) ORC 2941.1413, which requires a mandatory additional prison term of 1 – 5 years. Specifically, the Court was asked to decide whether raising the felony level for a DUI / OVI offense and imposing a sentencing enhancement on a specific class of DUI / OVI offenders violates the right to equal protection.
The case, State v. Klembus, stemmed from an arrest of Klembus in 2012 for driving while under the influence of alcohol (DUI / OVI). Klembus was charged with violating ORC 4511.19(A)(1)(a) (driving under the influence of alcohol) and 4511.19(A)(1)(h) (driving with a breath-alcohol concentration over 0.17).
Klembus had previous DUI / OVI convictions in 2008, 2004, 2000, 1997 and 1992. Because Klembus had been convicted of DUI / OVI five times in the previous 20 years, Klembus was charged with two 4th degree felonies under ORC 4511.19(G)(1)(d) as well as a repeat-DUI / OVI specification pursuant to ORC 2941.1413 for each offense.
Motion to Dismiss
Klembus moved to dismiss the repeat-DUI / OVI specification, arguing that ORC 2941.1413 violates equal protection because it allows the state to seek greater punishment without providing proof beyond that required to trigger ORC 4511.19(G)(1)(d). The trial court denied the motion and Klembus pled no contest to both counts. After merging the two offenses for sentencing purposes, the trial court imposed a 2 year prison sentence: one year for the DUI / OVI offense and one year for the repeat offender specification.
Klembus appealed the trial court’s decision on the motion to dismiss to the Eight District Court of Appeals. The Court of Appeals reversed, holding that pursuant to State v. Wilson, criminal statutes violate equal protection if they require identical proof yet impose different penalties.
The Court of Appeals stated that for ORC 2941.1413, only 4th degree felony DUI / OVI offenders charged with the repeat-DUI / OVI specification are subjected to multiple additional penalties without proof of additional factors. Nothing in the statute requires that the specification be charged against all similarly situated DUI / OVI offenders. Thus, the Court of Appeals held that the specification is not rationally related to protecting the public and punishing offenders because it is not uniformly applied on all similarly situated offenders. Thus, ORC 2941.1413 violates equal protection.
Appeal to the Ohio Supreme Court
The state appealed the Court of Appeals decision to the Ohio Supreme Court. The state argued that the repeat DUI / OVI specification in ORC 2941.1413 is constitutional under the Equal Protection Clause of the United States Constitution and the Ohio Constitution, and that when a defendant’s conduct violates multiple criminal statutes, the government may prosecute under either, even when the statutes prohibit the same conduct but provide for different penalties, so long as the government does not discriminate against any class of defendants.
Equal Protection Clause
The Equal Protection Clauses of both the United States and the Ohio Constitution guarantee that no person will be denied the same protection of the laws enjoyed by others in like circumstances. Equal protection does not forbid the legislature from making classifications, but simply prohibits treating people differently when all relevant circumstances are alike.
The Court applied rational-basis review to the statutes in question. To survive this level of review, the repeat-DUI / OVI specification must bear a rational relationship to a legitimate government interest.
Ohio’s DUI / OVI Statutory Scheme
Before discussing Klembus’ case, one must first understand Ohio’s OVI / DUI statutory scheme. For those with one or two misdemeanor DUI / OVI convictions in the past six years, the offense is a 1st degree misdemeanor. ORC 4511.19(G)(1)(b) and (c). For those with three or four misdemeanor DUI / OVI convictions in the past 6 years and those with five or more misdemeanor DUI / OVI convictions in the past 20 years, the offense is a 4th degree felony. ORC 4511.19(G)(1)(d). For an offender with one or more previous felony-level OVI convictions, an OVI offense is a 3rd degree felony. ORC 4511.19(G)(1)(e). Thus, the offense level of a DUI / OVI is graduated on the number and type of previous DUI / OVI convictions within a specified period of time.
In addition to the level of offense, the type of penalty one faces is also graduated based on the number and type of previous DUI / OVI convictions. For misdemeanor DUI / OVI offenses, a DUI / OVI offender with one previous DUI / OVI offense in the past six years faces a maximum of six months in jail. ORC 4511.19(G)(1)(b)(i). An offender with two previous DUI / OVI convictions in the past six years faces a maximum of one year in jail. ORC 4511.19(G)(1)(c)(i). For all 4th degree felony DUI / OVI offenses, the maximum prison term is 30 months plus either two or four months. ORC 4511.19(G)(1)(d)(i) and (ii). A 3rd degree felony DUI / OVI offender faces a maximum of 36 months plus two or four months in prison. ORC 4511.19(G)(1)(e)(i) and (ii).
For felony-level offenders, additional penalties are authorized through ORC 2941.1413 based on the number of previous DUI / OVI offenses. This specification may be added to a count alleging a 4th or 3rd degree felony when the accused has a history of five or more DUI / OVI convictions in the preceding 20 years. It cannot be attached to a court alleging a 4th degree felony based on the existence of three or four DUI / OVI convictions in the past six years, nor may it attached to a count alleging a 3rd degree felony with fewer than five DUI / OVI convictions in the past 20 years.
When the specification under ORC 2941.1413 is applied, a mandatory 1 – 5 year prison term is imposed in addition to the base term of imprisonment described above for a 3rd or 4th degree DUI / OVI felony. Thus, defendants found guilty of a 4th or 3rd degree felony DUI / OVI offense can receive a maximum prison term of 30 months plus five years or 36 months plus five years, respectively.
The Court of Appeals cited State v. Wilson (see above) as justification for reversing the trial court’s denial of Klembus’ motion to dismiss, arguing that the two criminal statutes at issue here violated equal protection because the statutes require identical proof but impose different penalties. The Ohio Supreme Court disregarded Wilson completely, stating that his case does not raise the same issue.
A criminal statute must prohibit specific conduct. Specifications such as ORC 2941.1413 do not prohibit conduct, but merely adds sentencing enhancements based on previous convictions. Although higher felony offense levels and specifications may increase the length of a sentence, they do no prohibit conduct. Having a status as a repeat-DUI / OVI offender is not a criminal offense in Ohio. Klembus was charged with driving under the influence in 2012 only. Thus, multiple criminal offenses are not present and there was no equal protection violation.
ORC 4511.19(G)(1) and 2941.1413 create a graduated system of punishment for DUI / OVI offenders according to the number and seriousness of prior DUI / OVI convictions. An offender with five or more prior misdemeanor DUI / OVI convictions can receive a harsher penalty than a person with four or fewer prior misdemeanor convictions. Moreover, a person can receive a lesser penalty than someone with five or more DUI / OVI convictions that includes felonies. That different penalty levels exist is immaterial and Klembus’ objections to this scheme did not reveal different treatment for similarly situated DUI / OVI offenders.
Thus, no equal protection violate occurred and the statutory scheme is rationally related to the state of Ohio’s legitimate interest in punishing offenders and protecting the public from impaired drivers. The Ohio Supreme Court reversed the decision of the Eight District Court of Appeals.
Columbus and Delaware, Ohio DUI / OVI Attorney
If you have been charged with DUI / OVI in Columbus or Delaware, Ohio, contact Johnson Legal, LLC and speak with an experienced criminal defense attorney. Attorney David Johnson of Johnson Legal, LLC will discuss your case and assist you in fighting the charges. Call (614) 987-0192 or send an email to schedule a consultation regarding your DUI / OVI case.