SB 188: Failure to Comply

The bill proposes significant changes to existing sections of the Ohio Revised Code, primarily impacting offenses related to fleeing or eluding law enforcement, resisting lawful orders, and sentencing guidelines for various felonies, with particular emphasis on offenses involving firearms, repeat violent offenders, drug offenses, and offenses causing serious physical harm or death. Key changes include reclassifying offenses, establishing new felony degrees for certain violations, and introducing specific mandatory and additional prison terms based on offense characteristics and offender history.

Main Themes and Key Ideas/Facts:

1. Reclassification and Increased Penalties for Fleeing or Eluding and Resisting Lawful Orders:

• The bill modifies section 2921.331, which pertains to fleeing or eluding a law enforcement officer and resisting orders.
• Fleeing or eluding a law enforcement officer (“operate a motor vehicle so as willfully to elude or flee a police law enforcement officer after receiving a visible or audible signal from a police law enforcement officer to bring the person’s motor vehicle to a stop”) is a core offense addressed.
• Resisting lawful orders (“take a position in a physical location that prevents immediate access by any law enforcement officer and refuse or resist orders to exit the location, or comply with other lawful order or direction, when that person…”) is also a key offense.
• A violation of the basic fleeing or eluding offense (division B) is elevated from a misdemeanor to a felony: “Except as provided in divisions (C)(4)(D)(4) and (5) of this section, a violation of division (B) of this section is a felony of the fourth degree.”
• Aggravating factors for fleeing or eluding lead to higher felony degrees:
• Fleeing immediately after the commission of a felony results in a “felony of the third degree.” (Lines 41-44)
• If the operation of the vehicle “was a proximate cause of serious physical harm to persons or property” or “caused a substantial risk of serious physical harm to persons or property,” the violation becomes a “felony of the third degree.” (Lines 46-51)
• Factors to be considered by the court in sentencing for a felony fleeing offense involving serious harm or risk include: the duration of the pursuit, the number of moving violations committed during the pursuit, and “Any other relevant factors indicating that the offender’s conduct is more serious than conduct normally constituting the offense.” (Lines 57-68)
• Violation of the resisting lawful orders provision (division C(1)) is classified as a “felony of the third degree” in most cases. (Lines 74-76)
• Aggravating factors for resisting lawful orders (division C(1)) that increase the felony degree to second degree include indicating possession of a deadly weapon or the presence of a third party unable to leave immediately and safely. The presence of a minor or elderly individual as the third party results in a felony of the first degree. (Lines 82-90, 91-95)
• Violations related to impeding access to law enforcement who are responding to a violation of division (C)(1) (division C(2)) have varying degrees based on risk, with a violation creating a serious risk of physical harm being a “felony of the second degree” with a mandatory minimum prison term. (Lines 96-104)
• Prison terms for felony violations of fleeing or resisting offenses are to be served “consecutively to any other prison term or mandatory prison term imposed upon the offender.” (Lines 105-108)
• Mandatory driver’s license suspensions are imposed for violations, with longer suspensions for felony offenses and repeat offenders. Limited driving privileges are generally prohibited for felony violations. (Lines 110-132)

1. Detailed Felony Sentencing Ranges and Determinations (Section 2929.14):

• The bill amends section 2929.14, which outlines prison terms for felonies.
• It provides specific definite prison term ranges for felonies of the second, third, fourth, and fifth degrees, with some variations based on the specific offense.
• Second Degree (committed prior to March 22, 2019): “a definite term of two, three, four, five, six, seven, or eight years.” (Lines 170-172)
• Third Degree (specific offenses like certain assaults, drug violations, etc.): “a definite term of twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, forty-eight, fifty-four, or sixty months.” (Lines 189-193)
• Third Degree (not covered by the specific list): “a definite term of nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.” (Lines 194-197)
• Fourth Degree: “a definite term of six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months.” (Lines 198-203)
• Fifth Degree: “a definite term of six, seven, eight, nine, ten, eleven, or twelve months.” (Lines 204-207)
• For felonies of the first degree committed on or after March 22, 2019, an “indefinite prison term with a stated minimum term selected by the court of three, four, five, six, seven, eight, nine, ten, or eleven years and a maximum term that is determined pursuant to section 2929.144 of the Revised Code.” (Lines 152-158)

1. Mandatory Additional Prison Terms for Specific Offense Specifications:

• The bill establishes various mandatory additional prison terms for offenders convicted of felonies with specific aggravating factors or characteristics (specifications). These terms are generally served consecutively and cannot be reduced by certain provisions.
• Firearm Specifications: Several specifications related to possessing, displaying, brandishing, or using a firearm during the commission of an offense result in additional prison terms of varying lengths (e.g., three years for simply having a firearm, seven years for displaying/brandishing/indicating possession/using, etc.). (Lines 215-240, 249-260)
• Discharging a Firearm from a Motor Vehicle: Committing certain felonies by discharging a firearm from a motor vehicle results in an additional prison term of eighteen years, or ninety months if the offender has a prior related conviction. (Lines 286-295, 300-311) These terms are served consecutively to the underlying felony sentence and other mandatory firearm specifications. (Lines 761-771)
• Wearing/Carrying Body Armor: Committing a felony offense of violence while wearing or carrying body armor incurs an additional two-year prison term. (Lines 335-339) This is served consecutively. (Lines 772-782)
• Discharging a Firearm at a Peace Officer or Corrections Officer: Committing a felony involving causing or attempting to cause death or physical harm and discharging a firearm at a peace officer or corrections officer results in an additional seven-year prison term, or one hundred twenty-six months with a prior related conviction. (Lines 364-375, 380-392) These terms are served consecutively. (Lines 783-792)
• Human Trafficking Specification: Committing certain felonies in furtherance of human trafficking results in a mandatory prison term, with the duration depending on the felony degree. (Lines 629-647) This term is served consecutively and cannot be reduced. (Lines 651-657, 793-801)
• Victim is Pregnant Woman (Assault/Felonious Assault/Aggravated Assault): If the victim of certain assault offenses is a woman the offender knew was pregnant, a mandatory prison term of six months or one of the regular felony terms is imposed, overriding the standard range. (Lines 668-679) This term is served consecutively. (Lines 793-801)
• Arson with Accelerant Causing Harm: If an offender uses an accelerant in committing arson that causes permanent serious disfigurement or substantial incapacity, a mandatory prison term is imposed. (Lines 687-698) This is served consecutively and cannot be reduced. (Lines 699-706, 861-868) This provision is referred to as “Judy’s Law.” (Lines 707-709)
• Permanent Disabling Harm to Child Under Ten (Aggravated Assault): Committing aggravated assault that results in permanent disabling harm to a victim under ten years old incurs an additional definite prison term of six years. (Lines 719-727) This term is served consecutively and cannot be reduced. (Lines 728-736, 869-878)
• Drug Offenses Involving Large Amounts/High Purity: Committing certain felony drug violations involving specific substances and thresholds results in a mandatory prison term, the duration depending on the type of substance. (Lines 738-749) This term is served consecutively and cannot be reduced. (Lines 750-758, 802-809)
• Criminal Gang Activity: Committing a felony offense of violence while participating in a criminal gang results in an additional prison term of one, two, or three years. (Lines 979-984)
• Repeat Violent Offender: Being convicted of a felony offense of violence and being found to be a repeat violent offender based on prior convictions results in an additional definite prison term of one to ten years. This is served consecutively and prior to the term for the underlying offense. (Lines 428-451, 465-490, 499-508, 1091-1106) The criteria for being deemed a repeat violent offender are outlined, including a history of three or more specified offenses within the preceding twenty years. (Lines 476-486)
• Repeat Obscenity/Harmful to Minors Offender: Committing certain obscenity or harmful to minors offenses with prior related convictions can result in an additional prison term or a community control sanction. (Lines 991-1008)

1. Consecutive Sentencing Requirements:

• The bill emphasizes that many of the newly introduced mandatory and additional prison terms are to be served consecutively to other imposed prison terms, including the term for the underlying offense. Specific provisions outline the order in which these consecutive terms are served (e.g., certain mandatory terms served consecutively to and prior to the underlying felony term). (Lines 759-887)
• The aggregate of all consecutive terms is the total term to be served, with exceptions for non-life felony indefinite terms. (Lines 888-908)

1. Post-Release Control:

• The bill reiterates existing requirements for post-release control for offenders released from prison, the duration of which depends on the felony degree. (Lines 911-938)

1. Sentencing for Sexually Violent Predators and Related Offenses:

• For individuals adjudicated as sexually violent predators or convicted of specific violent sex offenses or designated homicide/assault/kidnapping offenses, sentencing is to be in accordance with Chapter 2971. of the Revised Code, which governs sexually violent predator sentencing and control. (Lines 939-961)

1. Sentencing for Offenders Under Eighteen at the Time of Offense:

• Parole eligibility for offenders sentenced to life imprisonment or definite/indefinite prison terms for felonies committed when they were under eighteen years of age is determined under section 2967.132 of the Revised Code. (Lines 1128-1132)

Conclusion:

Senate Bill 188 proposes significant changes to Ohio’s criminal code, particularly in the areas of fleeing/eluding and resisting offenses, and felony sentencing. The bill increases the severity of penalties for these offenses, making many of them felonies. It also introduces a complex system of mandatory and additional prison terms based on specific offense characteristics and the offender’s criminal history. These additional terms are largely designed to be served consecutively, leading to potentially much longer periods of incarceration for offenders meeting certain criteria, especially those involving firearms, violence, repeat offenses, or offenses causing significant harm. The bill also reinforces existing provisions related to post-release control and specialized sentencing for sexually violent offenders and juvenile offenders.

Action/Further Considerations:

• A full review of the entire bill is necessary to understand the complete scope of the proposed changes and their interactions with other sections of the Revised Code.
• Detailed analysis of the fiscal impact of increased incarceration rates due to longer and consecutive sentences is warranted.
• Understanding the specific criteria for the various specifications that trigger mandatory and additional prison terms is crucial for assessing the potential impact on different types of offenders.
• Consider the potential legal challenges related to the complexity and severity of the proposed sentencing structure.