In 2012, Dean Klembus was arrested for drunk driving and was charged with operating a vehicle under the influence of alcohol (“OVI”). There’s nothing particularly noteworthy about an OVI charge – sadly, it happens frequently. But Klembus had been convicted of OVI five times in the previous 20 years.
The Ohio law dealing with OVI establishes the level of the charge based on the number of prior OVI offenses. For instance, if a person has one or two misdemeanor OVI convictions in the past six years, the offense for the next one is a first-degree misdemeanor. For someone with five or more misdemeanor OVI convictions in the past 20 years, the offense is a fourth-degree felony.
So, the offense level of an OVI is – in part – established on a graduated system based on the number and type of previous OVI convictions within a specified period of time.
The penalty for an OVI offense is also graduated based on the number and type of previous OVI convictions. An offender with one previous OVI offense in the past six years faces a maximum of six months in jail, while an offender with two previous offenses in the past six years faces a maximum of one year in jail. And for a fourth-degree-felony OVI offense, the base maximum is 30 months plus 60 or 120 days. A third-degree-felony OVI offender faces a base maximum of 36 months plus 60 or 120 days.
When Klembus was convicted on his 2012 OVI, the trial court imposed a prison term of two years. One year was for the OVI offense. And one year was tacked on because of a provision in Ohio law called the “repeat-OVI specification.”
The repeat-OVI specification adds additional prison time for repeat offenders. The specification may be attached to a count alleging a fourth- or third-degree felony when the offender has a history of five or more OVI convictions in the preceding 20 years.
At his trial, Klembus filed a motion to dismiss the repeat-OVI specification attached to his OVI offense. He argued that the law violated equal protection because it allows the state to seek greater punishment without providing proof beyond what is required to trigger the OVI charge in the first place.
But the trial court denied the motion. After his conviction, Klembus turned to the court of appeals, and that court – by a two-to-one vote – reversed the trial court’s decision.
In short, the court of appeals concluded that criminal laws violate equal protection – which is guaranteed under both the United States and Ohio Constitutions – if those laws require identical proof, yet impose different penalties. The court noted that only fourth-degree-felony OVI offenders charged with the repeat-OVI specification are subjected to multiple additional penalties without proof of additional factors.
The court of appeals also noted that none of the language in the repeat-OVI specification law requires that the specification be charged uniformly against all similarly situated repeat OVI offenders.
Therefore, the court concluded, the specification is not rationally related to the objective of protecting the public and punishing offenders, because it is not uniformly imposed on all similarly situated offenders.
After that, the case came before us – the Ohio Supreme Court.
The Equal Protection Clauses of both the United States and Ohio Constitution guarantee that no one will be denied the same protection of the laws enjoyed by others in like circumstances. So the question is this: does the repeat-OVI specification law violate the Equal Protection Clause because it tacks on penalties for the same offense as the OVI law?
The repeat-OVI specification does not prohibit conduct; rather, it adds sentencing enhancements to the violation of another law that does prohibit a particular conduct.
It’s well established that the government has a valid interest in combating the incidence of repeat offenders. The only proper test then for Klembus’s equal-protection challenge is whether the OVI law and the repeat-OVI specification law treat OVI offenders in Klembus’s circumstances differently than other OVI offenders based on an arbitrary standard.
Klembus didn’t object to the differing overall prison terms that repeat OVI offenders might serve, but rather to the way in which the laws allow the prison terms to be calculated. He objected to the form of the laws. But it’s not inequality in mere form that will cause an equal-protection violation; rather, it is inequality in substance and operation of a law that will cause an equal-protection violation.
In substance and operation, the OVI law and the repeat-OVI specification law establish a graduated system of punishment for OVI offenders according to the number and seriousness of prior OVI convictions. In writing the majority opinion, Justice Judith Ann Lanzinger noted that an offender with five or more prior misdemeanor OVI convictions can logically receive a heavier penalty than one with four or fewer prior misdemeanor convictions.
“Similarly, another offender may receive a lesser penalty than someone with five or more OVI convictions that include felonies. That these different penalty levels might be devised through higher offense levels or sentencing enhancements or both become immaterial. Accordingly, Klembus’s objections did not reveal different treatment of OVI offenders in his circumstances based on arbitrary standards.”
We determined that the application of both the OVI law and the repeat-OVI specification to offenders with five or more convictions in the preceding 20 years for operating a motor vehicle under the influence does not violate equal protection.
The resulting sentencing range for defendants in Klembus’s position is not illogical or arbitrary when compared to the sentencing ranges for other repeat OVI offenders. The possibility of longer prison sentences for those who continue to violate Ohio’s OVI law is rationally related to the state’s legitimate interest in punishing offenders and protecting the public from the dangers of impaired driving.
Therefore – by a seven-to-zero vote – we reversed the judgment of the court of appeals and reinstated the trial court’s order sentencing Dean Klembus to consecutive prison terms of one year for his OVI offense and one year for the repeat-OVI specification.
Paul Pfeifer is an associate justice of the Supreme Court of Ohio.