11th District Holds State Can't Take Plea to Misdemeanor OVI and then Charge Felony OVI - DUI News - 10/1/2016

11th District Confirms that the State Must Identify that it is Charging a Felony OVI When It Intends to Do So.

State v. Silka, 2016 Ohio 5784 (11th Dist.).


September 12, 2016

Silka was issued a traffic ticket for an OVI and a failure to control.  The ticket listed five prior OVI convictions with the dates of 1997, 2005, 2009, 2011, and 2014.  The case was filed with the municipal court, where Silka entered a guilty plea to a misdemeanor OVI.  After this, the State filed two new complaints against Silka, charging him with felony OVIs due to his prior OVIs.  These were bound over to the Common Pleas court where he was indicted.  He moved to dismiss the new felony OVI convictions, arguing that this was a violation of his constitutional protections against double jeopardy because he had already entered a plea to a misdemeanor OVI.  The State responded that the municipal court lacked jurisdiction to accept his plea to the misdemeanor charge because it involved felony charges.  The common pleas court agreed with Silka and dismissed the felony charges.

The 11th District reviewed that a complaint for a traffic violation must advise the person of the offense of which he is charged, and when the presence of an additional element may make the offense a more serious charge the degree of the offense must be identified or the complaint will only be effective for the least degree of the offense.     Here, the ticket did not indicate the degree of the offense, and therefore it was only effective for the first-degree misdemeanor.  Because municipal courts have jurisdiction to hear misdemeanor cases, here the court had jurisdiction to accept Silka's plea.  As a result, the 11th District affirmed the dismissal based on double jeopardy protections.

One judge of the 11th District dissented; however, by reasoning that a charging instrument is sufficient to advise a defendant of the degree of the offense when it states the number of convictions in a given time period.  Because this ticket listed the prior OVI convictions, this judge ruled that it was sufficient to charge a felony OVI even though it did not say that it was.