Mandatory Days In Jail

Under Ohio law, if you are arrested for DUI/OVI and blow over .170, then face six days in jail, only three of which can be spent in a DIP (Driver’s Intervention Program). Ohio Revised Code Section 4511.19(A)(1)(h), even if this was your first offense of any kind, ever. Get ready for the jail jump suit, the baloney sandwiches and plastic juice bottles. This is the case even if the trial judge does not want to sentence you to days in jail.

For instance, Ohio’s First District Court of Appeals considered a case where the trial court, instead of sentencing the youthful female offender to three days in the program and three days in jail, sentenced her to two consecutive driver’s intervention programs. The prosecutor, wanting the young lady to spend time in jail, appealed the ruling and the First Appellate District Court held that:

“The minimum statutory penalty for a first-time offender on the high-tier prohibited-alcohol-level offense is three days’ incarceration and three days in a DIP, to be served consecutively. If the offender refuses DIP treatment, or the court finds that the offender is not amenable to DIP treatment, the court must incarcerate the offender for a minimum of six consecutive days. Under the code, this incarceration must occur in a “county, multi-county, municipal, municipal-county, or multicounty-municipal jail or workhouse.” That definition does not allow placement in DIP. ”

The First District Court of Appeals reasoned that “A trial court may not disregard the mandatory sentencing provisions contained in the Revised Code. When sentencing a first-time offender for the high-tier prohibited-alcohol-level offense, a trial court exceeds its authority when it (1) suspends the three days’ incarceration (or the six-day sentence, if the offender does not attend DIP), (2) provides treatment in lieu of the mandatory days, or (3) orders work release during the mandatory three- or six-day period of incarceration. When a trial court disregards the sentencing requirements, the attempted sentence is a legal nullity.”

The Court of Appeals further explained that: “The legislature has curtailed judicial discretion in sentencing high-tier operating-under-the-influence offenders. The provision contained in R.C. 4511.19(G)(1)(a)(ii) for three days’ confinement in DIP in lieu of incarceration is not an available substitute for the mandatory minimum of three days’ incarceration to which first-time, high-tier OVI offenders must be sentenced. Consequently when a trial court substitutes DIP for the mandatory three days’ incarceration, it has committed reversible error.”

The case on this was State v. Paulo, 2006 Ohio App. LEXIS 3972 (August 4, 2006), Hamilton Co. App. No. C-050725, unreported.

But the matter did not end there. When Ohio’s First District Court of Appeals remanded the case back to the trial court for proceedings not inconsistent with its opinion, the trial court, instead of following the dictates of the First District Court of Appeals, the trial court refused to impose a three-day jail term on Paulo, crediting her instead with time served in DIP and terminating her probation. At the resentencing hearing, the trial court stated that its decision was based on its disagreement with this court’s decision in Paulo I. The trial court stated that because this court had only “heard one side and did not hear any opposing legal research and opinions[,] * * * [it] did not believe [this court] * * *[had] consider[ed] * * * all of the controlling statutes that pertain to DUI and other Ohio opinions, and [it had] not consider[ed] the [relevant] factors.” The trial court further stated that “if [this court] would have considered these factors, it would have “decided [Paulo's case] differently.”

The prosecutor again appealed the trial court’s ruling. The First District Court of Appeals held that:

“We are troubled by the trial court’s decision in this case. Following our remand, the trial court directly stated that we had committed an error and that it was not going to follow our decision. The effect of the trial court’s decision was to override our prior determination that Paulo was required to serve a three-day term of incarceration. The trial court was bound by our holding in Paulo I under the “law of the case” doctrine. The law of the case requires that a decision of law made in a particular case be respected by all other lower or equal courts during the pendency of that case. The doctrine is premised upon the desirability of avoiding the relitigation of an issue that has already been litigated and decided. The doctrine provides that “a lower court must ‘follow the mandate, whether correct or incorrect, of the court of appeals.’”

The Court of Appeals then instructed the trial court to impose a three day jail sentence upon Paulo. The case on this was State v. Paulo, 2007 Ohio App. LEXIS 3862 (August 24, 2007) Hamilton Co. App. No. APPEAL NO. C-060969, unreported.

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