The First District joins the Second, Third, Eleventh, and Twelfth Districts in rejecting an Eighth District opinion finding the repeat OVI offender specification unconstitutional.

State v. Ballard, 2016 Ohio 364 (1st Dist).

http://www.supremecourt.ohio.gov/rod/docs/pdf/1/2016/2016-Ohio-364.pdf

February 3, 2016

Those who have been convicted of five or more OVI offenses within the past 20 years may, at prosecutor's discretion, face a mandatory sentence of one to five years in addition to the sentence for the new OVI charge. The Eighth District had issued a decision finding this to be unconstitutional in State v. Klembus, 2014 Ohio 1830 (8th Dist). That argument was essential that it violates the equal-protection guarantees of the Constitution to leave it to the prosecutor's discretion whether to include the specification in the indictment, and therefore potentially leaving two defendants both with five or more prior OVIs facing potentially different ranges of sentences. Since then, the Second, Third, Eleventh, and Twelfth Districts issued decisions disagreeing with this conclusion. State v. Burkitt, 2015 Ohio 5292 (2d Dist); 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). In this case, the First District follows along.

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