State v. Downen
| Decision Date | 15 August 1997 |
| Docket Number | No. 97TRC000683-01,97TRC000683-01 |
| Citation | 702 N.E.2d 164,93 Ohio Misc.2d 23 |
| Parties | The STATE of Ohio v. DOWNEN. * |
| Court | Ohio Court of Common Pleas |
William L. Thomas, Belmont County Assistant Prosecuting Attorney, for plaintiff.
J. Mark Costine, St. Clairsville, for defendant.
1. On May 28, 1997, defendant James M. Downen was charged with a reinstatement suspension violation pursuant to R.C. 4507.02(C) and with operating a motor vehicle under the influence of alcohol pursuant to R.C. 4511.19 as a third offense (there being two prior offenses within the prior six years).
2. A motion to dismiss the case or in the alternative to suppress the results of the breath-alcohol content test was filed by defendant on June 23, 1997. Defendant's position was that the arresting officer did not have probable cause to stop defendant while operating his motor vehicle based upon the quantity of smoke that was being emitted from defendant's vehicle. A full evidentiary hearing was held on the same on June 25, 1997, and this court overruled said motion that date for the detailed reasons set forth in the record at that time, being generally that the officer not only had a right to stop the vehicle but perhaps even had an obligation to do so.
3. On July 3, 1997, defendant filed a motion in limine requesting an order of this court to limit the use of defendant's two previous convictions regarding determining a mandatory minimum sentence.
4. The penalties for violating R.C. 4511.19 () are found in R.C. 4511.99. This section was amended several times in 1996. The effect of these amendments as it relates to this case was to widen the time window within which previous convictions of OMVI (operating motor vehicle under the influence) must be considered in determining the minimum sentences for OMVI offenders.
5. Specifically, as related hereto, R.C. 4511.99(A)(3) provides that a person who is convicted of a third violation of R.C. 4511.19 within a six-year period must be sentenced to a minimum of thirty days in jail (along with fines, operator's license restrictions, etc.). A first offense provides, for example, by way of contrast, for a minimum of only three days in jail (and related penalties).
6. Prior to the effective date of this amendment (July 1, 1996, for the narrow issue at hand), courts were required to look back only five years (as opposed to six years) in determining minimum OMVI sentences.
7. It is defendant's position that the Ohio legislature is retroactively punishing an OMVI offender by taking into consideration convictions prior to the effective date of the amendment (increased punishment due to wider look back in time period).
8. Section 28, Article II of the Ohio Constitution bans retroactive laws that affect substantive rights by providing:
"The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contract; but may, by general laws, authorize courts to carry into effect, upon such terms as shall be just and equitable, the manifest intention of parties, and officers, by curing omissions, defects, and errors, in instruments and proceedings, arising out of their want for conformity with the laws of this state."
9. Defendant argues that the subject amendment (five-year look-back period increased to six-year look-back period) affects a substantive right by providing a greater minimum penalty upon an OMVI offense for prior convictions; these prior convictions would not have been taken into consideration under the previous law if the previous offenses were in the sixth prior year and not in the prior five years.
10. Specifically, defendant James M. Downen is alleged to have committed the subject offense on May 28, 1997. If one analyzes defendant's conviction record for the last five years, one would find no previous convictions of OMVI and he would therefore be considered a first offender under the previous law for sentencing purposes. However, if one analyzes defendant's conviction record for the last six years, one would find two previous convictions under the current law for sentencing purposes, resulting in the current offense being a third offense.
11. Defendant, accordingly, asserts that the change in law is unconstitutional by virtue of changing the effect which the two previous convictions have on his current charge.
12. It is well established that an Act of the General Assembly is entitled to a strong presumption of constitutionality. Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 616 N.E.2d 163. Courts must presume the constitutionality of lawfully enacted legislation. Univ. Hts. v. O'Leary (1981), 68 Ohio St.2d 130, 22 O.O.3d 372, 429 N.E.2d 148. A challenger must establish the unconstitutionality beyond a reasonable doubt, Hilton v. Toledo (1980), 62 Ohio St.2d 394, 16 O.O.3d 430, 405 N.E.2d 1047.
13. It has been the law of this state since the 1800s that:
"A law cannot properly be rendered retroactive when it apprises one who has established, by previous unlawful acts, a criminal character, that if he perpetuates further crimes, the penalty denounced by the law will be heavier than upon one less hardened by crime." (Emphasis added.) Blackburn v. State (1893), 50 Ohio St. 428, 438, 36 N.E. 18, 21.
14. The Supreme Court in Blackburn at 438, 36 N.E. at 21, held that the party in such a situation is informed before he commits the subsequent offense of the full measure of the liability he will incur by its perpetuation.
15. The Ohio Supreme Court concluded that this does not violate the constitutional guaranty against the enactment of ex post facto or retroactive laws.
16....
To continue reading
Request your trial