702 N.E.2d 164 (Ohio Co. 1997), 97TRC000683-01, State v. Downen

Docket Nº:97TRC000683-01.
Citation:702 N.E.2d 164, 93 Ohio Misc.2d 23, 1998-Ohio-511
Opinion Judge:FRANK A. FREGIATO, Judge.
Party Name:The STATE of Ohio v. DOWNEN. [*]
Attorney:[93 Ohio Misc.2d 24] William L. Thomas, Belmont County Assistant Prosecuting Attorney, for plaintiff. J. Mark Costine, St. Clairsville, for defendant.
Case Date:August 15, 1997
Court:County Court of Ohio
 
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Page 164

702 N.E.2d 164 (Ohio Co. 1997)

93 Ohio Misc.2d 23, 1998-Ohio-511

The STATE of Ohio

v.

DOWNEN. [*]

No. 97TRC000683-01.

Belmont County Court of Ohio.

August 15, 1997

       [93 Ohio Misc.2d 24] William L. Thomas, Belmont County Assistant Prosecuting Attorney, for plaintiff.

       J. Mark Costine, St. Clairsville, for defendant.

       FRANK A. FREGIATO, Judge.

  1. Introduction and Procedural Background

           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.

  2. Statutory Background and Amendments

           4. The penalties for violating R.C. 4511.19 (commonly known as OMVI or DUI) 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

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    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....

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