Rule Against Enhancing DUI OVI Penalties with Prior Uncounseled Convictions

In a recent case before Ohio’s Ninth District Court of Appeals, an OVI DUI suspect was charged with a third offense within six years of operating a vehicle while intoxicated under Section 4511.19(A)(1) of the Ohio Revised Code. Under that statute, each offense carries an increasingly serious penalty including fines, license suspensions, and mandatory terms of incarceration. R.C. Section 4511.19(G)(1). The third offense within six years carries a mandatory sentence of 30 days in jail with a maximum possible term of one year of incarceration. R.C. Section 4511.19(G)(1)(c). In contrast, a second offense carries a mandatory sentence of ten days in jail with a maximum possible term of six months of incarceration. R.C. Section 4511.19(G)(1)(b).

In that case, the suspect argued that the State should not be permitted to use her 2004 conviction to enhance the penalty for her current charge because that conviction is constitutionally infirm. She bases this conclusion on her assertion that when she pleaded no contest to the first charge, she was without legal counsel and had not knowingly waived that right. The suspect did not attack her second conviction for operating a motor vehicle while intoxicated. Thus, the question before the Court was whether her current charge should be considered a second offense as opposed to a third offense for sentencing purposes.

Generally, the law does not permit a criminal defendant to attack a previous conviction in a subsequent case. State v. Brooke, 113 Ohio St. 3d 199, 2007 Ohio 1533, at P9, 863 N.E.2d 1024 (2007). There is an exception, however, “when the state proposes to use the past conviction to enhance the penalty of a later criminal offense.” Id. In that situation, a defendant may attack the constitutionality of a prior conviction if it was obtained in violation of the defendant’s Sixth Amendment right to counsel. Id. The Supreme Court of Ohio has held that an uncounseled conviction, obtained without a valid waiver of the Sixth Amendment right to counsel, is “constitutionally infirm” if the result was a sentence of incarceration. Id. at Paragraph 9 (citing State v. Brandon, 45 Ohio St. 3d 85, 86, 543 N.E.2d 501 (1989); Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994)).
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