Since 1987, Supreme Court precedent has held that a charge of a third OVI in ten years in violation of R.C. 4511.19(A)(1) does not elevate the degree of the offense, nor are the prior convictions an element of the offense, which must be proven at trial. The prior convictions enhance the penalties only.
In State v. Allen, 29 Ohio St.3d 53, 1987, the Supreme Court of Ohio’s syllabus was as follows:
“Where the existence of a prior conviction enhances the penalty for a subsequent offense, but does not elevate the degree thereof, the prior conviction is not an essential element of the subsequent offense, and need not be alleged in the indictment or proved as a matter of fact.”
In Allen, the defendant was charged by complaint with a violation of R.C. 4511.19(A)(1), including an allegation that he had two prior OVI convictions within the previous five years (the look-back period at the time). During his jury trial, the court revealed to the jury that Allen had two prior convictions. He did so because of his belief that the two prior convictions were an essential element of the offense, because they increase the maximum penalty for a third offense from six months to a year. At the time, the applicable penalty was contained in R.C. 4511.99(A)(3).
Upon appeal, the court of appeals reversed. It reasoned (correctly) that in a prosecution of a repeat offender under R.C. 4511.19(A)(1), the prior convictions are not an element of the offense, nor do the priors elevate the offense to one or more serious degrees. They are relevant only for the purposes of imposing a sentence.
The Supreme Court of Ohio affirmed the court of appeals. It stated that in cases where a prior conviction elevates an offense from a misdemeanor to a felony, the prior does not just enhance the penalty; it increases its degree. The court then stated, “By contrast, neither the statute under which appellee herein was convicted, R.C. 4511.19(A)(1), nor the relevant penalty
statute, R.C. 4511.99(A)(3), provides that the degree of the offense is increased by virtue of the prior offenses. Only the penalty is enhanced. The Supreme Court held that where the existence of a prior conviction enhances the penalty for a subsequent offense but does not elevate the degree thereof, the prior is not an element of the offense and need not be alleged or proved as a fact.
For those who think that allowing priors in evidence in such a case is not prejudicial error consider the following statements made by the Supreme Court in Allen: “The existence of a prior offense is such an inflammatory fact that ordinarily it should not be revealed to the jury…the undeniable effect of such information is to incite the jury to convict based on past misconduct rather than restrict their attention to the case at hand….”
As was the case in Allen, the current OVI statutes provide that a third OVI (now within ten years) is a “misdemeanor” punishable by up to one year in jail. See R.C. 4511.19(G)(1)(c). Thus, when Allen was charged with a third OVI in 1985 (then within five years) and when a person is charged with a third OVI now (within ten years), the offenses are both “misdemeanors” punishable by up to one year in jail. These “misdemeanors” are not elevated to a more serious degree by the two prior convictions. The priors are relevant only for purposes of imposing sentence. Allowing them to be presented to a jury is reversible error in such a case.
R.C. 2901.02 contains the heading Classification of Offenses.
As used in the Revised Code, offenses include misdemeanors of the first, second, third, and fourth degree, minor misdemeanors, and offenses not specifically classified. R.C. 2901.02(A). Any offense not specifically classified is a felony if imprisonment for more than one year may be imposed as a penalty. R.C. 2901.02(E). Any offense not specifically classified is a misdemeanor if imprisonment for not more than one year may be imposed as a penalty. R.C. 2901.02(F). The only difference between a classified misdemeanor and an unclassified misdemeanor in OVI cases is the enhancement of a penalty for a third in ten years. The degree of the offense is not elevated by the priors, nor are they an element of the offense.
In May 2025, in State v. Quinn, Sixth Dist., Wood County, 2025-Ohio-1583, the facts of the case involved several charges, including a violation of R.C. 4511.19(A)(1)(a), an unclassified misdemeanor under R.C. 4511.19(G)(1)(c) due to two prior OVI’s in the past ten years. For some reason, defense counsel stipulated to the admission of Quinn’s prior convictions related to the above charge. Quinn was convicted of the charge and many other charges.
On appeal, the court followed Allen in finding that evidence of the priors should not have been made known to the jury. It found that this error would not have changed the outcome due to overwhelming evidence of Quinn’s impairment, which caused the death of a person in an auto accident. Quinn is the rare case where the admission of the subject evidence was not unfairly prejudicial.
The above analysis is not to be clouded by OVI charges under R.C. 4511.19(A)(2). The elements of that offense include a prior OVI in twenty years, refusing to submit to a chemical test, and OVI. Thus, in such a case, proof of a single prior OVI in twenty years is an element that must be proven or the subject of a defense stipulation. Note that proof of more than one prior during the relevant period is unnecessary and unfairly prejudicial.
Finally, I thought this post was important because in State v. Mason, Fifth Dist., Fairfield County, 2025-Ohio-1040, an appellate court did not follow Allen in a third OVI in ten years case. It held the priors elevated the level of the offense and increased the penalty, requiring the State to prove both priors. It cited a previous case out of its district where it found no error in the admission of prior convictions in a third OVI in ten years. In the case it cited, the court stated that the defendant’s argument “…that the mere mention of a prior conviction will lead a jury to convict….” was a nebulous claim of prejudice. I respectfully disagree with the decision in Mason.