[Cite as State v. Torres, 2020-Ohio-3077.]


STATE OF OHIO                     )                     IN THE COURT OF APPEALS
                                  )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                           C.A. No.       18CA011451

        Appellee

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
JUAN CARLOS TORRES                                      OBERLIN MUNICIPAL COURT
                                                        COUNTY OF LORAIN, OHIO
        Appellant                                       CASE No.   18TRC02549

                                  DECISION AND JOURNAL ENTRY

Dated: May 26, 2020



        TEODOSIO, Presiding Judge.

        {¶1}     Appellant, Juan Carlos Torres, appeals from the trial court’s judgment in the

Oberlin Municipal Court, ordering the criminal forfeiture of his vehicle following his third

conviction for operating a vehicle while under the influence of alcohol (“OVI”) within the past ten

years. This Court affirms.

                                                   I.

        {¶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.
                                                   2


       {¶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.

                                                  II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN ORDERING THE FORFEITURE OF
       APPELLANT’S    VEHICLE    AS    R.C.  4511.19[](G)(1)(c)(v) IS
       UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED HEREIN
       PURSUANT TO THE EQUAL PROTECTION CLAUSES OF THE
       FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND
       SECTION TWO, ARTICLE ONE OF THE OHIO CONSTITUTION.

       {¶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. * * *
                                                  3


       {¶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
                                                   4


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
                                                  5


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-Ohio-

4908, ¶ 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.
                                                  6


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
                                                  7


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
                                                 8


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.

                                                III.

       {¶17} Mr. Torres’ sole assignment of error is overruled. The judgment of the Oberlin

Municipal Court is affirmed.

                                                                                Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Oberlin Municipal

Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.
                                                9


       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT




CALLAHAN, J.
CONCURS.

HENSAL, J.
CONCURRING IN JUDGMENT ONLY.

       {¶18} As the lead opinion notes, the trial court directed the forfeiture of Mr. Torres’s

vehicle as part of his sentence, as it was required to under Revised Code Section

4511.19(G)(1)(c)(v). I agree that we review his equal protection argument de novo.

       {¶19} The parties and lead opinion concentrate on the differences between “owners” and

“non-owners” of vehicles, but Section 4511.19(G)(1)(c)(v) does not actually use such language.

Whether the vehicle an offender was operating during the commission of an offense is subject to

forfeiture depends on whether the vehicle was “registered in the offender’s name[.]” R.C.

4511.19(G)(1)(c)(v). The General Assembly has coupled forfeiture of a vehicle to its registration

not ownership. Thus, a leased vehicle, which is commonly registered in the lessee’s name, can be

subject to forfeiture under Section 4511.19(G)(1)(c)(v) even though the lessee is not the titled

“owner” of the vehicle.1 Section 4503.234(D) also provides that a deputy registrar may not accept

an application for registration of a motor vehicle if a vehicle that was registered in the person’s

name was criminally forfeited within the previous five years. Accordingly, I do not think focusing


       1
         Section 4503.234(B)(2) provides an opportunity for the lienholder to avoid forfeiture of
the vehicle.
                                                  10


only on the differences between “owners” and “non-owners” is accurate. To the extent that Mr.

Torres argues that Section 4511.19(G)(1)(c)(v) unfairly punishes registered owners of vehicles

while others, such as those who are driving a leased vehicle, are not subject to forfeiture, I would

conclude that his argument is not supported by the language of the statute.

       {¶20} Mr. Torres also argues that treating those who own their vehicles different from

those who do not is not rationally related to a legitimate state interest. I disagree. When an

offender owns or has a long-term lease of a vehicle, the offender has ready access to the dangerous

instrument that the offender used to create a risk to the public. The State has an interest in reducing

a repeat offender’s opportunity to re-offend. Forfeiture also serves as an additional deterrent to

repeat offenders who own or lease their vehicles not to commit another offense. See City of Akron

v. Kirby, 113 Ohio App.3d 452, 460 (9th Dist.1996) (“The state has a legitimate interest in

deterring impaired driving, and the seizure of an * * * offender’s vehicle serves this interest.”). It

would not make sense for the State to apply Section 4511.19(G)(1)(c)(v) to repeat offenders who

do not own or have a long-term lease of a vehicle because the State cannot threaten to take away

something that a person does not have. In addition, as the lead opinion has explained, a statute

that allowed the forfeiture of any vehicle that an offender was driving could unfairly punish

innocent third parties.

       {¶21} For the foregoing reasons, I conclude that the trial court did not act contrary to law

when it ordered the forfeiture of Mr. Torres’s vehicle. I, therefore, concur in the judgment of the

lead opinion.


APPEARANCES:

PATRICK D. QUINN and RONALD A. ANNOTICO, Attorneys at Law, for Appellant.

FARAH L. EMEKA, Prosecuting Attorney, for Appellee.
