As many who follow this blog are aware, the sentence for an OVI can not be enhance unless the prior conviction was “counseled.”  Therefore, if one is convicted of a subsequent OVI, the court can not sentence a defendant to the enhanced penalties unless the defendant was properly enlightened as to their rights when they pled in the prior OVI.  The courts use criminal rule 44(B) as the criteria.  This rule requires the court to fully outline the defendant’s constitutional rights prior to taking their plea.  If the prior court properly outlines the defendant’s rights, as set forth in Rule 44(B), the defendant is said to be properly “counseled” even if the defendant pleads without being represented by an attorney.

A recent Second Appellate District Court (Montgomery County) case has enhanced a court’s duties as it relates to the explanation of these rights. In the case of State v. Gross, 2011 Ohio 6490, the court stated that merely telling the defendant has a right to counsel is insufficient.

The court began its synopsis of the case by stating, “Courts are to indulge every reasonable presumption against the waiver of a fundamental constitutional right, including the right to counsel. The waiver must affirmatively appear in the record, and the State bears the burden of overcoming presumptions against a valid waiver.”

The court went on, “For a waiver of the right to counsel to pass constitutional muster, it must be knowing, intelligent and voluntary...At the core of Crim. R. 44(B) is the offender's inability to obtain counsel. The trial court in a criminal case must inquire fully into the circumstances surrounding an accused's inability to obtain counsel...In order to ensure that a waiver of counsel is made knowingly, intelligently and voluntarily, the trial court must make sufficient inquiry to determine whether a defendant fully understands and intelligently relinquishes that right.”

The court further explained, “To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive that right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.”

The court concluded, “A sketchy or minimal inquiry touching upon only some of the factors enumerated ...will not adequately establish an effective waiver of counsel.”

In the prior case, the court used a written outline to explain the defendant’s constitutional rights.  In its outline, the court merely explained to the defendant that he had a right to counsel and asked if he wished to waive that right.  The defendant answered affirmatively.  The lower court stated this was insufficient and refused to enhance the defendant’s sentence for the subsequent OVI for which he was charged.  The state appealed.  The Second Appellate Court agreed with the lower court using the reasoning set forth above. As the court stated, “...The fact that an accused may tell him that he is informed of his right to counsel and desires to waive that right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.”

Many readers have asked me the consequence of an OVI conviction on their out-of-state drivers licenses.  Whether an Ohio driver or a person convicted in Ohio from another state, the “interstate compact” has an impact on your driving privileges in your native state.  Only four states, Georgia, Massachusetts, Michigan, Wisconsin, and Tennessee, do not belong to the compact.

Basically, the compact requires all states to report any OVI/DUI conviction to all members of the compact.  Upon receipt, that state will communicate the fact to the licensee and sanction them as if convicted in that state.  

For example, lets assume you are convicted in Texas for OVI and that conviction is communicated to the Ohio BMV.  Pursuant to the compact the Ohio BMV will notify the offender and sanction them as if the conviction occurred in Ohio.  For a first offender, their license would be suspended for a minimum period of six months, etc.  Of course, they do have the right to an appeal as prescribed by the notice and should be undertaken in order to obtain limited driving privileges as prescribed by law.  Remember if you file your appeal late, you risk losing ANY driving privileges in Ohio for a minimum of six months!

Now, the obvious question - How sure am I that the conviction will be reported?  This, of course, depends upon the administrative capabilities of the states’ BMVs.  Some states are notoriously lax in their reporting.  Ohio, for example, has the reputation of being very hit and miss.

If you possess an out-of-state license, I strongly recommend you contact an OVI specialist in your state to advise you of the consequences of any conviction in Ohio before entering any plea.  If you are an Ohio licensee, contact an Ohio OVI attorney before pleading in the state you are charged.

Ohio’s statutes are replete with driving limitations for violations of 4511.19 (DUI/OMVI), driving under suspension violations, certain drug convictions under Ohio’s criminal statute, Title 29, and other miscellaneous statutory violations.  Some limitations are greater than others, some statutes calling for an absolute ban on any privileges for a period of time, others granting limited privileges based upon factors such as prior violations of the same statute.

But, issues can arise regarding a court’s description of those privileges.  R.C. 4510.021(A) requires a court, when granting limited driving privileges, to "specify the purposes, times, and places of the privileges...”

An issue relating to this statute arose in Warren County (12th Appellate District).  The case, State v. Butler, 2011 Ohio 4565, involved a defendant’s violation of Ohio drug law.  The defendant incurred a three year suspension of his driving privileges.  After the three year suspension expired, the defendant made his application for limited privileges.  The lower court granted privileges permitting the defendant to drive between 6:00 a.m. and 7:00 p.m., Monday through Saturday. The entry further prohibited the defendant from consuming alcohol while driving or in the 12 hours preceding his driving, and from operating a vehicle while under the influence of any drug of abuse.

The state appealed claiming the court failed to comply with R.C. 4510.021(A) as it failed to specify the purpose, times and places of the privileges.  The appellate court agreed with the state and remanded the case back to the lower court for further proceedings to correct the entry.

Therefore, it is vitally important that the court properly comply with the statute to save everyone time and expense.  To properly comply the entry should:

1.  State the times and days the applicant may drive, and
2.  State the purpose or purposes for which the privileges are being granted, and
3.  State where the applicant may drive.

A typical entry by most court’s may read as follows: “The defendant may drive between the hours of _____ am to ____pm for work, medical, and religious purposes and to comply with court and probation orders and  appearances.”  Is this specific enough to comply with R.C. 4510.021(A)?  Only time and jurisprudence will tell.

Since the establishment of the Ohio Juvenile Court System, we have been taught that “convictions” as a juvenile are sealed and not opened resulting from a conviction as an adult.  The reason is that judgments under the juvenile system “adjudicate” juveniles as a delinquent or unruly child depending upon the seriousness of the offense and are not considered “convictions.”  Thus juvenile adjudications are considered civil, not criminal, in nature.  

This changed in 1996 when the Ohio legislature passed R.C. 2901.08, permitting the use of juvenile offenses for purposes of enhancement of subsequent charges.  Although juvenile proceedings are considered “civil’ in nature, an offender’s juvenile adjudication for OVI-type cases can be used against him under the law, State v. Hanning, 89 Ohio St.3d 86, 89, 728 N.E.2d 1059.

A recent Delaware County Court of Appeals case argued the constitutionality of the statute.   In the case, State v. Adkins, 129 Ohio St.3d 287, 2011 Ohio 3141, the defendant argued 1) the application of the statute was an unconstitutionally retroactive and 2) the statute impermissibly permits a civil dispositionas a basis for criminal enhancement as an adult.

The court denied the defendant’s first argument saying that the law is not retrospective.  It applies only to offenses after the effective date of the statute.  The current offense is the case that triggered the look back rule, not the juvenile adjudication.  Therefore, the statute is not respective in nature.

Further, the court opined that the statute is not unconstitutionally retroactive.  Using the reasoning in Miller v. Hixson, 64 Ohio St. 39, 59 N.E. 749, the court stated, “The retroactivity clause [of the Ohio Constitution] nullifies those new laws that ‘reach back and create new burdens, new duties, new obligations, or new liabilities not existing at the time [the statute becomes effective].’  The court continued its reasoning, [The defendant’s] contention that an additional burden - an enhancement on a future charge - is placed upon the juvenile adjudication is unavailing. [The defendant] is not being punished for a previous juvenile adjudication; he is being punished for a current offense.”

Therefore, when looking back for enhancement purposes, whether 6 or 20 years, a court may include any prior juvenile adjudications.

A number of readers and attorneys make the assumption if a DUI charge is dismissed or results in a not guilty verdict, the ALS suspension is automatically terminated. This is not necessarily true.

 
To give the reader some background, if certain criteria are met, the police officer is required to immediately confiscate the driver’s license of the offender when charged with OVI. This is known as an “Administrative License Suspension.”  Thereafter, if the offender  pleads guilty or is found guilty, any subsequent suspension is considered a “judicial suspension” – one imposed by the court based upon the parameters set forth in the OVI statute.

 
In the case of State v. Hayes, 2007 WL 2994219, 2007 Ohio 5517 (Fifth Appellate District), the court argued a not guilty finding in a DUI case terminates the ALS in a per se violation but not in an OVI case.  Based upon the courts review, it reasoned that a not guilty finding for driving while having unlawful level of alcohol or drugs in your system does automatically end the ALS but the same can not be said for a not guilty finding for driving while impaired.  This reasoning was also followed in State v. Tweddell, 2010 Ohio 4927, a Second Appellate District case.

 
A more recent case from the First Appellate District, State v. Lewis, 187 Ohio App. 3d 701, discussed the termination of an ALS for refusing to take a chemical test.  In its opinion, the court stated, “…an ALS imposed for the refusal to submit to a chemical test remains in effect even if a defendant is found not guilty of the charge resulting in the request for the chemical test…”

 
If I can suggest some reasoning behind these decisions, an ALS is an administrative suspension based upon specific criteria.  Charges of DUI (OVI in Ohio) are judicial in nature and arise out of specific statutes and the subsequent suspension is determined within the judicial process.  Therefore, they are mutually exclusive and since an ALS suspension can only be terminated based upon specific grounds, if these criteria are not addressed when defending the OVI charge, the ALS remains in effect.  Therefore, in the Hayes case, since one of the criteria for termination of the ALS is the per se reading in breath, blood or urine, any not guilty finding in that regard will consequently result in the termination of the ALS since the defense, in itself, sustained one of the criteria for termination.  But, if the offender is found not guilty in an OVI case only, the ALS does not terminate because that defense does not  incorporate any of the criteria for termination of the ALS.

 
In the Lewis case, the ALS suspension was based upon the defendant’s refusal to submit to a chemical test.  Since the defendant’s not guilty verdict had no application to his refusal, the ALS stayed in effect.

 
Therefore, if one is seeking termination of an ALS, they must be sure their trial defense includes addressing one of the grounds for ALS termination.