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Twelfth District Reverses Ex Post Facto Application of OVI Ten Year Look-Back

By: Megan Patituce

            A winning decision out of the Twelfth District today in Gregoire courtesy of Attorney Neal Schuett provides a quick reminder on the fundamentals of retroactivity.  State v. Gregoire, 12th Dist. Butler No. CA 2019-04-066 (Feb. 10, 2020).  In 2016, Mr. Gregoire was convicted of a fourth-degree felony OVI, having three prior OVI convictions within the preceding six years.  The court sentenced Mr. Gregoire to twelve months in prison and suspended his driver’s license for six years.

            In 2019, Mr. Gregoire filed a motion seeking the termination of his license suspension or, in the alternative, a grant of limited driving privileges.  The trial court denied Mr. Gregoire’s motion, applying a ten-year look-back period.  The look-back period had changed from six years to ten years in 2017.  Despite the fact that the law had changed after Mr. Gregoire’s conviction, the trial court found that it could apply this new law retroactively because it did not affect a substantial right.

            The Twelfth District disagreed.  The Court reviewed both H.B. 388 and the amended version of R.C. 4510.13(A)(3) and determined that neither expressly stated that the provisions would be applied retroactively.  The state and trial court argued that the statute could be applied retroactively to deny Mr. Gregoire’s motion because the statute was remedial in nature.  In considering this argument, the Twelfth District pointed out that the discussion need not even reach a debate over substantive versus remedial.  Rather, the discussion starts and ends with the determination that the statute did not plainly state that it was to be retroactive.

            Mr. Gregoire’s case was returned to the trial court so that his motion could be properly considered under the six-year look-back which had been in effect at the time of conviction. 


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