The Second District joins the Third, Eleventh, and Twelfth Districts in rejecting an equal protection challenge to the OVI Repeat Offender Specification statute, while the Eighth District's opinion finding an equal protection challenge is awaiting review with the Ohio Supreme Court.

State v. Burkitt, 2015 Ohio 5292 (2d Dist).

http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2015/2015-Ohio-5292.pdf

December 18, 2015

The Second District reviewed Burkitt's argument that the Ohio OVI Repeat Offender Specification Statute (R.C. 2941.1413) was unconstitutional. Burkitt's argument relied upon a Eight District decision in State v. Klembus, 2014 Ohio 1830 (8th Dist).

In Klembus, the Eight District found that because the substantive fourth-degree felony OVI charge and the repeat-offender specification (could be proven with the same facts and circumstances, and there was no requirement that the specification be applied uniformly, a prosecutor could arbitrarily choose who to charge with the specification. The Third, Eleventh, and Twelfth Districts subsequently disagreed with Klembus. State v. Sprague, 2015 Ohio 3526 (3d Dist); State v. Reddick, 2015 Ohio 1215 (11th Dist); State v. Burkhart, 2015 Ohio 3409, 37 N.E.3d 220 (12th Dist).

The Second District observed the Klembus relied upon an Ohio Supreme Court decision in State v. Wilson, 58 Ohio St.2d 52, 388 N.E.2d 745 (1979), which held that if two statutes "prohibit identical activity, require identical proof, and yet impose different penalties, then sentencing a person under the statute with the higher penalty violates the Equal Protection Clause."

The Second District chose instead to follow the United States Supreme Court unanimous decision in United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), which held that "when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants." The Supreme Court reasoned that, "Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion."

Applying Batchelder, the Second District rejected Burkitt's challenge to the constitutionality of the OVI repeat offender specification.

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