Ohio OVI Law: Allied Offenses
State v. West, 2010-Ohio-1786, C. A. 23547 (OHCA2)
Defendant was indicted on one count of aggravated vehicular assault, R.C. 2903.08(A)(1), and one count of operating a motor vehicle with a prohibited concentration of breath alcohol. R.C. 4511.19(A)(1)(h), (G)(1)(a). Defendant filed a motion to suppress evidence, including her statements to the police. Following a hearing, the trial court overruled Defendant’s motion to suppress. Defendant also filed a motion to dismiss the indictment, which the trial court never ruled upon. Defendant subsequently entered pleas of no contest to both charges and was found guilty. The trial court sentenced Defendant to a mandatory prison term of one year and suspended her driver’s license for four years.
“A two-step analysis is required to determine whether two crimes are allied offenses of similar import. E.g. State v. Blankenship (1988), 38 Ohio.St.3d 116, 117, 526 N.E.2d 816; Rance, 85 Ohio.St.3d at 636, 710 N.E.2d 699. Recently, in State v. Cabrales, 118 Ohio.St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, we stated: ‘In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), courts are required to compare the elements of offenses in the abstract without considering the evidence in the case, but are not required to find an exact alignment of the elements. Instead, if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import.’ Id. at paragraph one of the syllabus. If the offenses are allied, the court proceeds to the second step and considers whether the offenses were committed separately or with a separate animus. Id. at ¶ 31.” State v. Williams, 124 Ohio.St.3d 381, 2010-Ohio-147, at ¶16.
Ohio’s Second District Court of Appeals held that: The elements of R.C. 2903.18(A)(1)(a) and 4511.19(A)(1)(h) do not exactly align when those two offenses are compared in the abstract, but they are allied offenses of similar import per R.C. 2941.25(A) nevertheless. That section requires merger of offenses when “the same conduct by defendant can be construed to constitute two” or more offenses. For purposes of a defendant’s criminal liability for an offense, conduct “includes either a voluntary act, or an omission to perform an act or duty that the person is capable of performing.” R.C. 2901.21(A).