Enhanced OVI Penalities

Enhanced OVI Penalties

By Jus­tice Paul E. Pfeifer

It is, unfor­tu­nately, not uncom­mon for some­one to be charged with oper­at­ing a motor vehi­cle while intox­i­cated. So when Gary Adkins was indicted for an OVI vio­la­tion in Sep­tem­ber 2007, there was no rea­son to think that it was any­thing other than a rou­tine drunk dri­ving case. But Adkins’s attor­ney raised an issue that even­tu­ally brought the case before us – the Supreme Court of Ohio.

For his OVI, Adkins was charged with a fourth-degree felony – a higher charge than nor­mal – based on the alle­ga­tion that he had been pre­vi­ously con­victed of or pleaded guilty to five or more OVI offenses within the pre­vi­ous 20 years.

Specif­i­cally, the indict­ment charged that Adkins had been con­victed of six prior OVI offenses. That included a Novem­ber 20, 1987 adju­di­ca­tion in Delaware County Juve­nile Court, where Adkins had been adju­di­cated “a juve­nile traf­fic offender as a result of Alco­hol Con­cen­tra­tion, Flee­ing an Offi­cer and Fail­ure to Main­tain Assured Dis­tance.” Whether that adju­di­ca­tion could prop­erly be con­sid­ered a prior offense was the issue in this case.

The par­tic­u­lar sec­tion of Ohio law – we’ll call it the 5-convictions statute – that Adkins was charged with vio­lat­ing employs a 20-year look-back to pre­vi­ous con­vic­tions and it enhances an OVI charge if a defen­dant has five or more pre­vi­ous, sim­i­lar violations.

That’s why Adkins was charged with a fourth-degree felony – because he had been con­victed of six prior OVI offenses dat­ing to the one in juve­nile court in 1987. But Adkins’s attor­ney filed a motion to dis­miss the indict­ment. He asserted that it lacked the suf­fi­cient num­ber of qual­i­fy­ing prior con­vic­tions to sup­port a felony charge.

He tar­geted three of the con­vic­tions, includ­ing the juve­nile adju­di­ca­tion, as invalid for pur­poses of enhance­ment. The trial court ulti­mately ruled that one of the con­vic­tions was not a valid prior con­vic­tion for pur­poses of enhance­ment, but that the oth­ers, includ­ing the juve­nile adju­di­ca­tion, were valid. Thus, the court’s rul­ing left a total of five admis­si­ble con­vic­tions for pur­poses of enhance­ment, and the court denied Adkins’s motion to dismiss.

Adkins ended up plead­ing no con­test to the charge, and the trial court found Adkins guilty. He appealed his con­vic­tion to the court of appeals, alleg­ing that the offense from the juve­nile court could not be con­sid­ered a prior offense sup­port­ing a felony con­vic­tion. But the court of appeals affirmed Adkins’s con­vic­tion. After that, his case came before us for a final review.

As men­tioned ear­lier, the 5-convictions statute has a 20-year look-back to pre­vi­ous con­vic­tions. If a per­son has five or more pre­vi­ous vio­la­tions, the penalty is enhanced to a fourth-degree felony. Adkins main­tained that the offense against him in the juve­nile court couldn’t be counted as one of those pre­vi­ous convictions.

It’s true that in Ohio, juve­nile court pro­ceed­ings do not result in crim­i­nal con­vic­tions. A juve­nile court pro­ceed­ing is a civil action, and juve­niles are “adju­di­cated delin­quent” rather that “found guilty.” But on Jan­u­ary 1, 1996, the law as it per­tains to juve­niles was changed. Effec­tive on that date, even an OVI-type offense from juve­nile court could be counted as a pre­vi­ous con­vic­tion for pur­poses of enhanc­ing the pun­ish­ment for any sub­se­quent charges.

Adkins’s attor­ney argued that an appli­ca­tion of that Jan­u­ary 1 law to this case would require a ret­ro­spec­tive appli­ca­tion of the law, which the Gen­eral Assem­bly did not autho­rize. He also argued that, as applied to Adkins, the Jan­u­ary 1 law is uncon­sti­tu­tion­ally retroac­tive because it imper­mis­si­bly reaches back to his juve­nile adju­di­ca­tion and enhances its con­se­quences, con­vert­ing a civil dis­po­si­tion into the basis for charg­ing him with an adult felony.

In Ohio, a law “is pre­sumed to be prospec­tive in its oper­a­tion unless expressly made ret­ro­spec­tive.” And the Ohio Con­sti­tu­tion pro­hibits the Gen­eral Assem­bly from pass­ing retroac­tive laws. But despite Adkins’s claims oth­er­wise, the law in ques­tion here did not run afoul of the Ohio Constitution.

First, the Jan­u­ary 1 law isn’t ret­ro­spec­tive. It applies only to offenses that occur after the effec­tive date of the law. Only those per­sons who com­mit an offense after Jan­u­ary 1, 1996, can have juve­nile adju­di­ca­tions count against them for the pur­pose of con­sid­er­ing the degree of the new offense and the poten­tial pun­ish­ment for it. The law has no effect until a new OVI offense occurs. Then, at that point, a court can look at both a defendant’s adult and juve­nile records.

The Jan­u­ary 1 law is also not uncon­sti­tu­tion­ally retroac­tive. The retroac­tiv­ity clause of the Ohio Con­sti­tu­tion nul­li­fies new laws that “reach back and cre­ate new bur­dens, new duties, new oblig­a­tions, or new lia­bil­i­ties” that did not exist at the time the law became effective.

Adkins’s con­tention that an addi­tional bur­den – an enhance­ment on a future charge – is placed upon the juve­nile adju­di­ca­tion doesn’t really work. Adkins is not being pun­ished for a pre­vi­ous juve­nile adju­di­ca­tion; he is being pun­ished for his cur­rent offense.

The United States Supreme Court has held that when a defen­dant is given a higher sen­tence because of his crim­i­nal his­tory, “100% of the pun­ish­ment is for the offense of con­vic­tion. None is for the prior con­vic­tions.” The sen­tence “is a stiff­ened penalty for the lat­est crime, which is con­sid­ered to be an aggra­vated offense because it is a repet­i­tive one.”

The Jan­u­ary 1 law did not change Adkins’s juve­nile adju­di­ca­tion; it merely added another type of legal vio­la­tion as an aggra­vat­ing offense that could be used in accor­dance with the 5-convictions statute. The Jan­u­ary 1 law sim­ply made clear that for penalty enhance­ment pur­poses, courts could con­sider a juve­nile adju­di­ca­tion as a conviction.

There­fore, because the Jan­u­ary 1, 1996 law is applied prospec­tively and is not uncon­sti­tu­tion­ally retroac­tive, we affirmed – by a seven-to-zero vote – the judg­ment of the court of appeals, which means that the fourth-degree felony con­vic­tion against Adkins is upheld.

EDITOR’S NOTE: The case referred to is: State v. Adkins, 129 Ohio St.3d 287, 2011-Ohio-3141. Case No. 2010–0465. Decided July 5, 2011. Major­ity opin­ion writ­ten by Jus­tice Paul E. Pfeifer.

Posted by Paul Pfeifer on Jan 4 2012. You can follow any responses to this entry through the RSS Feed. Both comments and pings are currently closed.