The question raised in State v. Bayer involved whether or not a person can be sentenced for OVI (O.R.C. 4511.19) if that person is also convicted of Aggravated Vehicular Assault (O.R.C. 2903.08) arising from the same incident. Crimes that involve similar activity are often merged for purposes of sentencing. The merger turns on whether or not the crimes are similar enough to be deemed “allied offenses of similar import.”
In this case, the Defendant caused “serious physical harm” to a person while driving with a prohibited alcohol concentration above 0.17%. In March 2011 she pled guilty to Aggravated Vehicular Assault and to one count of Operating a Vehicle Impaired (drunk driving). After a sentencing hearing, the Franklin County Court of Common Pleas sentenced Bayer to four years in prison for the aggravated vehicular assault conviction and six months for the OVI, with the sentences to run concurrently. Bayer appealed to the 10th District Court of Appeals, arguing that she cannot be sentenced for both offenses and that her sentences should merge as allied offenses of similar import.
Writing for the majority, Judge Julia Dorrian [pictured] looked to the legislative intent of Ohio Revised Code section 2929.41, which vests trial courts with the discretion to run sentences for aggravated vehicular assault and OVI concurrently or consecutively. “The General Assembly thereby clearly reflected its intent that a trial court may, in its discretion, sentence a defendant for both OVI and Aggravated Vehicular Assault,” Dorrian stated. “Accordingly, the trial court had the discretion, pursuant to O.R.C. 2929.419(B)(3), to enter convictions of both OVI and AVA and to sentence appellant to serve consecutive sentences for those two crimes.”
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