The 11th District holds that the OVI repeat offender specification is Constitutional and the only grounds to challenge prior convictions must be based on a lack of counsel, while the 12th District holds that the speedy trial clock for subsequent OVI charges based on chemical tests does not begin to run at the time of the original OVI charge.
January 25, 2016
Lusane was indicted on a driving with a suspended license charge and felony OVI offenses, alleging he had five prior OVI offenses within the last twenty years. A repeat offender specification under R.C. 2941.1413 was also included. He was ultimately sentenced to two consecutive terms of two years on an OVI charge, four years on the specification, and 180 days for driving under suspension.
Lusane appealed, arguing that that one of the prior OVIs should not have been considered because there was no evidence that the municipal court conducted the required Crim.R. 11(C) hearing prior to accepting his guilty plea. The 11th District rejected this argument, holding that "a prior conviction cannot be collaterally attacked on the grounds that the guilty plea was invalid due to lack of compliance with Crim.R. 11(C)." Instead, it continued to follow its prior precedent, holding that, "the only constitutional infirmity that a criminal defendant may allege to collaterally challenge a prior penalty-enhancing conviction is the denial of the fundamental right to be represented by counsel."
The 11th District also rejected Lusane's argument that the additional four years for the OVI repeat offender specification of R.C. 2941.1413 was unconstitutional because it allows the state to impose a greater penalty for a sixth OVI conviction without having to prove an additional element. The Court noted that, although the 8th District adopted this argument, the 11th District already considered and rejected it.
January 25, 2016
On November 5, 2014, Wieland was charged with a red light violation and an OVI (R.C. 4511.19(A)(1)(a)). Breath tests were not obtained although a urine specimen was. The results of the urine tests were obtained on November 24, 2014 and as a result on March 5, 2015, Wieland received an additional OVI charge (R.C. 4511.19(A)(1)(e)). Wieland's motion to dismiss on speedy trial grounds was denied.
The 12th District first reviewed that R.C. 2945.71(B)(2) provides that a person charged with a first degree misdemeanor must be brought to trial within 90 days after her arrest. This applies to subsequent charges if they arose from the same facts as the original charge. However, if "the subsequent charges arise from new and additional facts, unknown at the time of the original arrest, the state is not bound to the speedy trial timetable of the original arrest and may be afforded a new speedy trial period."
The 12th District held that Wieland's subsequent charges, based on the urine test results, were based on new facts that were not available at the time of the original charges. Therefore, it held, the speedy trial clock for trial on the new charges did not begin to run until those new charges were filed on March 5.