Annie’s Law is 3 years old today having become effective April 6, 2017. When Annie’s Law became effective, it was supposed to increase penalties for repeat offenders. OVI is an enhancable crime, with the total number of prior convictions and when those convictions occurred determining whether or not an OVI is a misdemeanor or felony and what minimum penalties the court must impose. Annie’s Law changed the look-back period for enhancement but was supposed to reduce later offenses by utilizing ignition control devices (a/k/a ignition interlock devices). In reality, for first-offense OVI offenders the potential penalties became increasingly confusing and very few people utilize the interlock provisions of Annie’s Law. Here’s what changed, what stayed the same, and why this law simply is not working:
What Stayed the Same (first offense OVI penalties):
- Fines remained at a minimum $375 and maximum $1,075;
- Treatment remained optional, at the the Court’s discretion;
- Family Plates (yellow plates with red numbers) remained optional; and
- 3 days in jail or driver intervention program remained mandatory if the offender is given limited driving privileges (opposed to unlimited driving privileges).
What Changed (first offense OVI penalities):
- Driver’s License Suspension changed from a Class 5 suspension with a minimum 6-month suspension and maximum 3-year suspension to an Unclassified suspension with a minimum 1-year suspension and maximum 3-year suspension;
- Offenders may receive unlimited driving privileges with an ignition interlock device (“IID”);
- All jail time, including the mandatory 3 days, is suspended with unlimited driving privileges and an IID; and
- If an offender has an IID, the court may reduce the driver’s license suspension by one-half (from 1 year to 6 months).
Why it’s not working:
At first glance, unlimited driving privileges may seem like a good idea. But the devil is in the details. For instance, if there is an IID violation during the suspension period, the suspension period must be extended and any suspended jail time must be imposed (some court’s interpret this to mean all suspended jail time, not just the mandatory jail time that was suspended). There are also costs associated with the daily monitoring of the IID, a new driver’s license that must be obtained, and you can only drive the vehicle with the IID installed.
I have not counseled one client to ask the court for an IID upon an OVI conviction. Most of my colleagues indicate they generally do not have anyone ask for unlimited driving privileges and an IID. Instead, we always seek limited driving privileges, even though the license suspension lasts for one year. IID machines can, and do, malfunction and can generate false-positives with something as simple as a person eating bread or smoking a cigarette before testing to start their vehicle. And the IID receives the presumption of correctness and the driver of the vehicle must prove the machine malfunctioned or that it was a false-positive test – which can be hard to do. Then, if the driver cannot prove the machine’s error, the court must impose all the suspended jail time; i.e., if the court sentenced someone to 90 days in jail, suspended the mandatory 3 days because the person chose an IID, and suspended the other 87 days for a term of probation, the court must impose the entire 90 day jail sentence! The benefits, for most people, simply is not worth the potential consequences of an IID error.
It has always been important to seek counsel when dealing with an OVI. Now, with Annie’s Law, and the various potential penalties and options, and ramifications of the various options, it is more important than ever to have representation in an OVI case.
To schedule your OVI consultation, call the Nicodemus Law Office, LPA, at 740-422-9280.