The 9th District avoids an evaluation of the constitutionality of the OVI repeat offender specification by holding the trial court erred in granting motions to dismiss, before the defendants were found guilty of or sentenced to the specification.

State v. Hunter, 2016 Ohio 444 (9th Dist.).

http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2016/2016-Ohio-444.pdf

February 8, 2016

In two cases, the defendants were indicted of OVIs as well as repeat offender specifications pursuant to R.C. 2941.1413. 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 defendants filed motions to dismiss, relying upon an Eighth District opinion holding the repeat offender specification unconstitutional. State v. Klembus, 2014 Ohio 1830 (8th Dist). since that opinion the First, Second, Third, Eleventh, and Twelfth Districts issued decisions disagreeing with this conclusion. State v. Ballard, 2016 Ohio 364 (1st Dist); 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).

The Ninth District did not address the constitutionality of the repeat offender specification, but rather granted the State's appeal because procedurally, it found the trial court in error for granting the motions prematurely, before the defendants plead guilty to or were found guilty of the specification, and before being sentenced. "If [the defendant were to be] acquitted at trial or the charges [were to be] otherwise dismissed, his equal protection argument [would be] moot."