ELYRIA — Prosecutors on Thursday appealed a decision by Lorain County Common Pleas Judge John Miraldi to throw out a specification that would have led to additional mandatory prison time for a repeat DUI offender facing a felony drunken driving charge.
Miraldi concluded the specification, which requires a mandatory prison term of one to five years for those facing a sixth DUI conviction in a 20-year period, violated Jack Arnold’s equal protection rights because the specification is added only at the discretion of prosecutors.
Without the specification, Arnold faces a mandatory 60 days of incarceration and up to 30 months in prison.
Miraldi wrote that prosecutors didn’t need to prove anything beyond the DUI charges Arnold faces in order to also win a conviction on the specification.
The judge concluded that two people with similar histories of DUI offenses could face vastly different sentences based on whether or not prosecutors decided to include the specification when indicting different defendants.
“The disparate treatment of this class is illustrated by the fact that identical offenders could be sentenced to as little as 60 days of mandatory incarceration followed by probation,” Miraldi wrote. “However, if the State elects to add the repeat OVI offender specification to the indictment of one of the offenders, that offender could be sentenced to seven and a half years in prison. The only difference between the two offenders is the prosecutor’s decision to include the OVI specification in the indictment in the latter case.”
Assistant County Prosecutor Peter Gauthier had argued against dismissing the specification against Arnold, who was arrested after being stopped March 14 in Elyria by the Ohio Highway Patrol for speeding and traveling outside the marked lanes.
Gauthier argued in court documents that the specification is not a separate crime, but rather a procedural matter that the Ohio legislature put in place to impose greater penalties on those convicted of multiple drunken driving charges.
He also wrote that there is no evidence to show the specification is being “imposed in a disparate manner.”
Miraldi based his decision in part on an Ohio 8th District Court of Appeals decision handed down in May that reached the conclusion that the DUI specification violated the Equal Protection Clause of the U.S. Constitution.
In a dissent from that decision, 8th District Court of Appeals Judge Tim McCormack disagreed with his colleagues.
“The enhanced penalty of a mandatory prison term of one, two, three, four, or five years consecutive to the underlying offense is available to any individual who is found guilty of, or who has pleaded guilty to, the underlying fourth-degree felony involving a repeat OVI offender, where the specification is included in the indictment,” McCormack wrote. “Moreover, courts have consistently concluded that an enhanced penalty specification, standing alone, does not violate constitutional processes.”
Mike Kinlin, Arnold’s defense attorney, said he doesn’t believe the specification is being applied arbitrarily in Lorain County, but the potential is there. He said it would make more sense if there was something additional that needed to be proven, such as a high blood alcohol level, for the additional prison time called for in the specification to be imposed.
“There’s no rational basis for the specification,” Kinlin said.