Ohio’s Felony OVI Look-Back Rule
Ohio has established a twenty year felony OVI look-back period.
A sixth or greater OVI (drunk driving) offense within a twenty year look-back period is a fourth degree felony OVI. R.C. 4511.19(G)(1)(d). Another harsh provision under Ohio OVI law is the “once a felony, always a felony” rule contained in R.C. 4511.19(G)(1)(e), meaning that any future DUI regardless of how many years have passed is charged as a third-degree felony. This means that if you have many years of sobriety in between DUI convictions, you still face a felony rather than having your case treated as a first-in-six misdemeanor offense.
Felony OVI defense attorneys have challenged the constitutionality of these look-back provisions on the grounds that they violated due process and that they are a retroactive application of laws. In State v. Miccap, 2006-Ohio-2854 (Ohio Ct. App. 9th Dist, Summit County), the 9th District Court of Appeals rejected these arguments and upheld the enhanced punishments. It stated that the penalties imposed were not enhancements punishing prior conduct, but punishing any violations that occur after enactment of the enhancement provision. In State v. Brooke, 113 Ohio St.3d 199, 863 N.E.2d 1024 (2007), the court upheld the right of a defendant to challenge whether or not a prior conviction was conducted in accordance with the rule of law. For a complete discussion of Attack on prior convictions, see Ohio Driving Under the Influence Law, Weiler & Weiler J., 2009-2010 ed., pp 333-335.
Felony OVI is different from Aggravated Vehicular Homicide, O.R.C. 2903.06, a crime that results from the death of another caused by the defendant’s operating a vehicle while impaired (a violation of R.C. 4511.19) or while driving negligently or recklessly. The statute encompasses driving an automobile recklessly or negligently (called Vehicular homicide) whether or not alcohol played a part in the death. O.R.C. 2903.08, Aggravated Vehicular Assault is the crime of causing serious physical harm to a person while violating Ohio’s drunk driving statute. Aggravated vehicular assault is a felony of the third degree.
