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Date: 07-29-2020

Case Style:


Case Number: 18CA011451

Judge: Linda Tucci Teodosio


Plaintiff's Attorney: FARAH L. EMEKA, Prosecuting Attorney

Defendant's Attorney:

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{¶2} Mr. Torres pled no contest to his third OVI offense in ten years and to driving under
suspension. The trial court found him guilty of both offenses. Mr. Torres filed a written objection
to the forfeiture of his vehicle, arguing that the criminal forfeiture statute for repeat OVI offenders
denied equal protection and was unconstitutional. Prior to sentencing, the court held a hearing on
the issue and then denied Mr. Torres’ written objection. The court sentenced Mr. Torres for his
convictions and, as a part of that sentence, ordered the forfeiture of his vehicle. He successfully
motioned the trial court to stay execution of the forfeiture order pending appeal.

{¶3} Mr. Torres now appeals from the trial court’s judgment ordering the forfeiture of
his vehicle and raises one assignment of error for this Court’s review.
APPELLANT’S VEHICLE AS R.C. 4511.19[](G)(1)(c)(v) IS
{¶4} In his sole assignment of error, Mr. Torres argues that R.C. 4511.19(G)(1)(c)(v) is
unconstitutional, as it violates the Equal Protection Clauses of the Ohio Constitution and the
Fourteenth Amendment to the United States Constitution. We disagree.
{¶5} R.C. 4511.19(G) provides the sentencing guidelines for OVI offenders under that
statute and provides, in relevant part:
(1) Whoever violates any provision of divisions (A)(1)(a) to (i) or (A)(2) of this
section is guilty of operating a vehicle under the influence of alcohol, a drug of
abuse, or a combination of them. * * * The court shall sentence the offender for
[the] offense under Chapter 2929. of the Revised Code, except as otherwise
authorized or required by divisions (G)(1)(a) to (e) of this section:
* * *
(c) Except as otherwise provided in division (G)(1)(e) of this section, an offender
who, within ten years of the offense, previously has been convicted of or pleaded
guilty to two violations of division (A) or (B) of this section or other equivalent
offenses is guilty of a misdemeanor. The court shall sentence the offender to all of
the following:
* * *
(v) In all cases, if the vehicle is registered in the offender’s name, criminal forfeiture
of the vehicle involved in the offense in accordance with section 4503.234 of the
Revised Code. * * *

{¶6} Whether R.C. 4511.19(G)(1)(c)(v) denies equal protection appears to be an issue
of first impression in this Court as well as in this state. The Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution provides: “No State shall * * * deny to
any person within its jurisdiction the equal protection of the laws.” Article I, Section 2 of the Ohio
Constitution similarly provides: “All political power is inherent in the people. Government is
instituted for their equal protection and benefit * * *.” The Supreme Court of Ohio has stated that
“[t]hese two equal-protection provisions are functionally equivalent and require the same
analysis.” State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, ¶ 29.
{¶7} Appellate courts review constitutional challenges de novo. State v. Celli, 9th Dist.
Summit No. 28226, 2017-Ohio-2746, ¶ 6. As a threshold matter, we must remain mindful that
statutes are presumed constitutional. State v. Noling, 149 Ohio St.3d 327, 2016-Ohio-8252, ¶ 9,
citing R.C. 1.47. “The mere fact that a statute discriminates does not mean that the statute must
be unconstitutional.” Roseman v. Firemen & Policemen’s Death Benefit Fund, 66 Ohio St.3d 443,
446 (1993). In other words, equal protection does not forbid the legislature from making
classifications, but simply prohibits “‘treating differently persons who are in all relevant respects
alike.’” State v. Klembus, 146 Ohio St.3d 84, 2016-Ohio-1092, ¶ 8, quoting Nordlinger v. Hahn,
505 U.S. 1, 10 (1992). To find a statute unconstitutional, courts must determine “‘beyond a
reasonable doubt that the legislation and constitutional provisions are clearly incompatible.’”
Noling at ¶ 10, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph
one of the syllabus. “‘[D]oubts regarding the validity of a legislative enactment are to be resolved
in favor of the statute.’” Id., quoting State v. Smith, 80 Ohio St.3d 89, 99-100 (1997).
{¶8} A party may challenge a statute as unconstitutional either on its face or as applied
to a particular set of facts. Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, ¶ 37. Any

party raising a facial challenge must demonstrate that there is no set of circumstances in which the
statute would be valid. Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, ¶ 26.
“The fact that a statute might operate unconstitutionally under some plausible set of circumstances
is insufficient to render it wholly invalid.” Harrold at ¶ 37. In an as-applied challenge, the
challenger contends that application of the statute in the particular context in which he has acted
is unconstitutional. State v. Austin, 9th Dist. Summit No. 28199, 2017-Ohio-7845, ¶ 8. Any party
challenging a statute as applied bears the burden of presenting clear and convincing evidence of a
presently existing set of facts that make the statute unconstitutional and void when applied to those
facts. Id.
{¶9} “In determining whether a statute is unconstitutional because it violates the right to
equal protection, we must first examine the class distinction drawn to decide if a suspect class or
a fundamental right is involved.” Roseman at 447. “If no suspect class or fundamental right is
involved, the classification will be subject to a ‘rational basis’ level of scrutiny.” Id. A suspect
class is typically defined as one saddled with such disabilities, or subjected to such a history of
purposeful, unequal treatment as to command extraordinary protection, such as race, national
origin, religion, and sex. State v. Fortson, 11th Dist. Portage No. 2011-P-0031, 2012-Ohio-3118,
¶ 40. “Recognized fundamental rights include the right to vote, the right of interstate travel, rights
guaranteed by the First Amendment to the United States Constitution, the right to procreate, and
other rights of a uniquely personal nature.” State v. Williams, 88 Ohio St.3d 513, 530 (2000).
{¶10} The parties agree that the criminal forfeiture of a vehicle provided for in R.C.
4511.19(G)(1)(c)(v) involves neither a fundamental right nor a suspect class. Thus, the
classification at issue here is to be reviewed under the rational basis test, which requires us to grant
substantial deference to the General Assembly’s predictive judgment and to uphold a statute if it

is rationally related to a legitimate governmental purpose. See Aalim, 150 Ohio St.3d 489, 2017-
Ohio-2956, at ¶ 34; Klembus, 146 Ohio St.3d 84, 2016-Ohio-1092, at ¶ 9. “‘The rational-basis test
involves a two-step analysis. We must first identify a valid state interest. Second, we must
determine whether the method or means by which the state has chosen to advance that interest is
rational.” Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St.3d 104, 2010-Ohio4908, ¶ 19, quoting McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, ¶ 9.
{¶11} According to the Supreme Court of Ohio, “[i]t is well established that the
government has a valid interest in combating recidivism” and “the [S]tate has a paramount interest
in promoting public safety by removing drunk drivers from the highways.” Klembus at ¶ 19; Doyle
v. Ohio Bur. of Motor Vehicles, 51 Ohio St.3d 46, 54 (1990). See also Birchfield v. North Dakota,
___U.S.___, 136 S.Ct. 2160, 2191 (2016) (“[T]here can be no dispute that States must have tools
to combat drunk driving.”). This Court has likewise acknowledged that the State has a “legitimate
interest in deterring impaired driving” and a “strong interest in keeping impaired drivers off the
road.” Akron v. Kirby, 113 Ohio App.3d 452, 458-460 (9th Dist.1996). Mr. Torres does not argue
against the validity of these state interests, and has therefore failed to meet his burden of negating
a valid state interest. See Cordray at ¶ 19.
{¶12} Mr. Torres instead argues that a disparate treatment between vehicle owners and
non-owners within the statute is not rationally related to the aforementioned state interests. In
support of his argument, he first relies on a Miami County Municipal Court decision finding a
vehicle forfeiture law unconstitutional for denying equal protection to those who live in different
geographical areas and own vehicles of varying financial values. State v. Sanders, Miami County
M.C. No. 94-TRC-3104-S-PIQ (Sept. 7, 1994). The municipal court’s decision in Sanders was
later reversed, however, by the Second District Court of Appeals. See State v. Sanders, 2d Dist.

Miami Nos. 95 CA 11 and 95 CA 12, 1995 WL 634371 (Sept. 29, 1995), aff’d and remanded sub
nom. In re Adm. License Suspension Cases, 76 Ohio St.3d 597, 599 (1996). Mr. Torres goes on
to cite several other cases concerning equal protection claims, but they are all unrelated and easily
distinguishable, as none of them deal with vehicle forfeiture issues or OVI offenders in any respect.
See Cleveland v. Huff, 14 Ohio App.3d 207, 210 (8th Dist.1984) (concluding soliciting and
prostitution ordinances denied equal protection by prohibiting identical activity and requiring
identical proof while imposing different penalties); State v. Wilson, 58 Ohio St.2d 52 (1979)
(determining that the aggravated burglary statute does not deny equal protection, as it requires the
State to prove the elements of burglary along with an additional element); Wheeling Steel Corp. v.
Glander, 337 U.S. 562, 573-574 (1949) (determining that an ad valorem tax taxing the goods of
nonresidents while exempting the goods of Ohio residents denied two corporations equal
protection); State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, ¶ 2 (determining that a subsection
of the sexual battery statute, in which peace officers were strictly liable for sexual conduct with
minors, denied equal protection); Adamsky v. Buckeye Local School Dist., 73 Ohio St.3d 360, 363
(1995) (determining a statute denied equal protection with its disparate treatment between adults
and minors in lawsuits against political subdivisions).
{¶13} Mr. Torres has failed to meet his burden of establishing that R.C.
4511.19(G)(1)(c)(v) is not rationally related to valid state interests. The criminal forfeiture of the
vehicle, only if it is registered in the repeat OVI offender’s name, is the method or means by which
the state has chosen to advance its valid interest in combating recidivism, promoting public safety,
deterring drunk driving, and keeping impaired drivers off the road. The statute is narrowly drawn
and provides, in accordance with R.C. 4503.234, extensive notice procedures as well as an
opportunity for the offender to be heard at a hearing. See Kirby at 458. The forfeiture of a vehicle

registered in the offender’s name recognizes a concerted attempt to remove from a repeat OVI
offender’s use a vehicle that has the highest probability of being used in any future offense. See
State v. Konrath, 218 Wis.2d 290, 309 (Wisc.1998). Moreover, the legislature carefully chose to
not provide for the criminal forfeiture of vehicles belonging to others, either stolen or borrowed
by the offender, presumably because such a law would unfairly punish innocent third parties. See
State v. Erskine, 4th Dist. Highland No. 14CA17, 2015-Ohio-710, ¶ 30.
{¶14} Although Mr. Torres argues that owners and non-owners are treated differently
under this statute, and non-owners are permitted to “arbitrarily escape” forfeiture, the equal
protection admonishments in the Ohio Constitution and the Fourteenth Amendment to the United
States Constitution do not deny the State the power to treat different classes of persons in different
ways. Noling, 149 Ohio St.3d 327, 2016-Ohio-8252, at ¶12, citing Eisenstadt v. Baird, 405 U.S.
438, 446-447 (1972). The fact that repeat OVI offenders must forfeit the vehicle if it is registered
in their name, while vehicles driven by repeat OVI offenders but owned by third parties are not
subject to forfeiture, does not make R.C. 4511.19(G)(1)(c)(v) irrationally related to the state’s
interest in reducing recidivism and combating the widespread societal problem of drunk driving
along with its devastating impact and sometimes fatal results. Moreover, while Mr. Torres offers
what he believes are better solutions to advance the state’s interests—e.g., the elimination of the
forfeiture penalty altogether, or the creation of a statutory scheme whereby owners and non-owners
would be subject to the same monetary penalties in a forfeiture scenario—an equal protection
review does not require this Court to conclude that the state has chosen the best means of serving
a legitimate interest, only that is has chosen a rational one. See State v. Conley, 9th Dist. Summit
No. 27869, 2016-Ohio-5310, ¶ 28. Under the rational-basis test, the Equal Protection Clause is
satisfied if “‘there is a plausible policy reason for the classification.’” Id. at ¶ 20, quoting

Nordlinger, 505 U.S. at 11. In light of the substantial deference we grant to the General
Assembly’s predictive judgment, it appears to this Court that the legislature’s policy reason for the
classification provided for in R.C. 4511.19(G)(1)(c)(v) is indeed plausible.
{¶15} Upon review, this Court concludes that R.C. 4511.19(G)(1)(c)(v) is rationally
related to a legitimate governmental purpose and is not clearly incompatible beyond a reasonable
doubt with the Equal Protection Clauses of the Ohio Constitution and the Fourteenth Amendment
to the United States Constitution.
{¶16} Mr. Torres’ sole assignment of error is overruled.

Outcome: Mr. Torres’ sole assignment of error is overruled. The judgment of the Oberlin
Municipal Court is affirmed.

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