Monday, October 05, 2009

Mandatory enhancements for repeat DUI offenders in Ohio

The Ohio Supreme Court, last Wednesday, upheld a state law that imposes 10 additional days of mandatory jail time on a driver with a prior DUI conviction if that person refuses to take a chemical test after being arrested for a subsequent DUI violation. ( Court's Holding and Summary )

Ohio's DUI statute, R.C. 4511.19, sets a mandatory minimum jail term of 10 days for a repeat DUI offender who is convicted under R.C. 4511.19(A)(1). The same statute increases the mandatory minimum jail sentence to 20 days for a repeat DUI offender convicted under R.C. 4511.19(A)(2) – which includes the additional element that when arrested for the current DUI offense, the defendant refused to submit to a chemical test.

The Court's summary relates Justice Judith Ann Lanzinger's noting noted that "Ohio’s 'implied consent' law,R.C. 4511.191, which has been upheld as constitutional by both state and federal courts, provides that 'Any person who operates a vehicle ... within this state ... shall be deemed to have given consent to a chemical test or tests of the person's whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person's whole blood, blood serum or plasma, breath, or urine if arrested for a violation of (the DUI statute).'

R.C. 4511.191(B), furthermore, holds that every driver, regardless of previous offenses, also faces an administrative license suspension ("ALS") for failing to submit to a chemical test upon an arresting officer's reasonable belief of a DUI violation.

Defendant in the case contended, "that he has a constitutional right to revoke his implied consent and that being forced by threat of punishment to submit to a chemical test violates his rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution, which provide that persons, houses, and effects are protected against unreasonable search and seizure." The Court disagreed, saying has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication. ... Asking a driver to comply with conduct he has no right to refuse and thereafter enhancing a later sentence upon conviction does not violate the constitution."

Justice Lanzinger emphasized, however, that R.C. 4511.19(A)(2) does not make refusal to take a chemical test a criminal offense. "The activity prohibited under R.C. 4511.19(A)(2) is operating a motor vehicle while under the influence of drugs or alcohol. A person's refusal to take a chemical test is simply an additional element that must be proven beyond a reasonable doubt along with the person's previous DUI conviction to distinguish the offense from a violation of R.C. 4511.19(A)(1)(a). Hoover's conviction under R.C. 4511.19(A)(2) meant that the mandatory minimum jail term increased from ten days, the mandatory minimum for R.C. 4511.19(A)(1)(a), to 20 days.”

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