Historically, courts have normally sentenced defendants to the minimum sentence upon conviction or plea to an OVI, i.e. three days for a first time offender, ten days to a second offense, and so on, depending upon the number of prior convictions within a six year period. With the enactment of the “look-back rule” and the recent Hoover decision, more and more defendants are looking at sentences exceeding the minimum.

A recent case from Clermont County is typical of this trend. The case, State v. Elliott, 2009 Ohio 5926, involved a multiple offender. Since the defendant had refused the breathalyzer, the look back rule was imposed and it was found that this offender had been convicted more that 5 times for OVI. In fact, he had 15 convictions in his lifetime. The court sentenced the defendant to the maximum 30 months in jail. Additionally, because the defendant was on community control sanctions at the time of his arrest, the judge sentenced the defendant to an additional 12 months in jail to run consecutively with his sentence on the OVI. In total, the defendant was given 42 months in jail (3½ years).

The defendant appealed his sentence claiming the court abused it discretion in imposing such a draconian sentence. He appealed on two grounds. First, he claimed the sentence imposed was not supported by the record and is contrary to law. Second, he claimed the sentence imposed was excessive and failed to achieve the overriding purposes of felony sentencing.

The court disposed of the first issue by stating “Trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences,” State v. Foster, 109 Ohio St.3d 1, 2006 Ohio 856, P100, 845 N.E.2d 470. In applying Foster appellate courts must apply a two-step approach. First, they must examine the sentencing court’s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court’s decision shall be reviewed under an abuse-of-discretion standard,” State v. Kalish, 120 Ohio St.3d 23, 2008 Ohio 4912, P4, 896 N.E.2d 124.

The court went on to say, “A sentence is not clearly and convincingly contrary to law, where the trial court consider[s] the purposes [of the sentencing guidelines], …properly applie[s] post-release control, and … sentence[s] [appellant]…within the permissible range.” In addition, so long as the trial court gives “careful and substantial deliberation to the relevant statutory considerations” the court’s sentencing decision is not an abuse of discretion.

The appellate court found that the judge, on the record. had reviewed the sentencing guidelines, balanced the seriousness and recidivism factors set forth in the guidelines, and as, required, informed the appellant he could be subjected to three years of post release controls.

The court addressed the appellant second claim by reviewing the appellant’s record. The record clearly showed that the appellant had 15 prior convictions for OVI, the he was ordered into treatment that failed, and that the defendant’s license had been suspended several times but he continued to drive.

Therefore, the court concluded that the judge did comply with the law by applying the sentencing guidelines set forth in the Ohio Revised Code. Further, addressing the second prong of the sentencing review, found that the lower court did not violate the abuse-of-discretion standard.

As a result, in applying this court’s opinion, a court’s sentence will not be overturned if the record on appeal shows:

1. That the court balanced the seriousness and recidivism factors set forth in the statute.

2. Told the defendant of the possibility of post relief control (if applicable), and

3. The record of the defendant justified the sentence being imposed (abuse- of-discretion standard).

If you’ve read this blog, I have, on numerous occasions, referred to sentencing guidelines when discussing multiple violations of Ohio’s DUI law. To reiterate, DUI sentences are enhanced if found guilty of additional DUI offenses within a 6 year period (See Judge Jennifer Weiler’s DUI Guideline Charts). I’ve also discussed the right of a judge to sentence a defendant to more than the minimum for various reasons (see my blog regarding a defendant’s refusal to submit to a test). Recently, the Mahoning County Court of Appeals sustained a lower court’s decision to sentence a defendant to a maximum 5 years in prison for his second felony DUI

Unfortunately, many, including attorneys, habitually think of DUI sentences in terms of the minimum, i.e., first offense 3 days, second offense 10 days, etc. When preparing for sentencing, most contemplate the minimum sentence without taking into effect the range of sentencing the court is permitted to use. If we look at Judge Weiler’s charts, under the column labeled “incarceration,” the court can sentence an offender 3 days to 6 months for a first offense, 10 days to 6 months on the second, 30 days to 1 year on the third, and so on. Note further, the chart shows a doubling of these sentences if other factors are present such as a breathalyzer reading of .17 or more or a refusal to take a test.

But, in preparing for sentencing, one should always be cognizant that any judge could sentence a defendant to a greater sentence than the minimum. Ohio’s sentencing laws do give judges some guidelines to use in sentencing and, in fact, does recommend the minimum sentence for a first offender if no other recidivism factors (factors that would tend to point to repeat offenses) are present. But, these guidelines, according to statute, apply to felony sentencing only. Therefore, these guidelines are not applicable until the offender has reached their 4th offense within 6 years.

As a result, in misdemeanor violations such as lower tier DUI’s (3 or less offenses in 6 years), it is in the discretion of the court to determine length of sentence. In my experience, judges will take the following factors into consideration during sentencing:

1. Prior DUI convictions outside the 6 year period.

2. Traffic and criminal record.

3. Refusal to take the test.

4. Lack of cooperation with the police.

5. History of alcohol or drug abuse.

Therefore, it is vitally important that you be aware that a court, in its discretion, can sentence a defendant to more than the minimum and be prepared to address this issue at the time of sentencing.

You’ve heard the advertising from some DUI defense practitioners: “Refuse the breathalyzer.  It will make it harder to prove you were driving under the influence.”  This might be true, but a recent Ohio case might give you and your attorney second thoughts.

As now constituted, Ohio’s DUI law incorporates penalty enhancement for subsequent offenses.  For example, a first DUI calls for a minimum of three days in jail or diversion, a second in six years requires a minimum of ten days in jail and so on.  Historically, in most instances, courts adhered to these minimums notwithstanding the defendant’s refusal to submit to a test.

Due to a case decided in the Fifth Appellate District (Coshocton, Ohio), this may drastically change.  The case, State of Ohio v. Adam Hill, upheld a courts right to punish a defendant for refusing to take a breathalyzer.  In that case Mr. Hill was arrested for driving under the influence.  He was asked to take a breathalyzer and he refused.  The court gave the Defendant an additional ten days in jail for refusing to take the breathalyzer.

The Defendant appealed his sentencing arguing his constitutional rights were violated when the court sentenced him to an additional ten days incarceration solely because he refused to submit to a breath alcohol test.

The court stated, “…there is no constitutional right to refuse a chemical test…the choice to submit to or refuse the test is not a constitutional right, but rather a matter of legislative grace.”

The court went on to say, “Since Ohio has long accepted the principle that a defendant’s refusal may be used in considering whether the defendant is under the influence, we see no distinction in the use of that same refusal as an element to enhance a minimum term of imprisonment.”

Therefore, this appellate court upheld the lower court’s decision to add ten days to the defendant’s sentence for refusing to the breath test.

While this case is only law within the Fifth Appellate’s area of jurisdiction, other Ohio courts are permitted to adopt this reasoning to enhance sentences for a defendant’s refusal to take a test.  And while this decision was made on the appellate level, if the Ohio Supreme Court sustains this case, it will become the law throughout Ohio allowing police to use this leverage to mandate a defendant’s compliance.Court of Appeals Sustains Lower Court’s Right to Enhance a Sentence for Refusing to Take Beathalyzer Test