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Ohio DNA Specimen Law Ruled Not Retroactive

The Ohio Supreme Court held that a state law requiring convicted felons and some misdemeanants to provide DNA specimens could not be applied retroactively to offenders placed on supervised release before the law’s May 2005 effective date.

On August 6, 2002, Craig Consilio pleaded guilty to DUI, a fourth degree felony. He was sentenced to six months in jail and three years community supervision.

While Consilio was still on supervision the Ohio legislature enacted HB525, amending R.C. 2901.07(B)(3)(a) to require all felony and some misdemeanor offenders to submit a DNA specimen when on supervised release. HB525 became effective on May 18, 2005. It did not expressly address retroactivity.

The probation office informed Consilio that he would be required to provide a DNA sample under HB525. Consilio filed a motion in opposition, arguing that the amended statute could not be applied to him because it was not in effect when he was sentenced. The trial court denied the motion, finding the amended statute applied to all individuals on supervised release regardless of when they were sentenced. Consilio appealed.

While the appeal was pending, on January 10, 2006, Consilio’s community supervision ended. The following month the Court of Appeals reversed the trial court’s judgment, concluding that since the 2005 amendment was not expressly retroactive it could only be applied prospectively, and therefore did not apply to Consilio. This time the state appealed.

Ohio lawmakers amended the DNA specimen statute again in 2006 “to reaffirm” their intent that the prior HB525 version of the statute was to have been applied retroactively. That legislation became effective July 11, 2006.

On appeal, Ohio’s Supreme Court rejected the state’s argument that the 2006 amendment had established that “the General Assembly declared its intent that the HB525 version was retroactive as well.” Rather, the Court concluded that the second amendment “cannot confer retroactivity upon a previous version of a statute.”

Since it was “undisputed that the HB525 version of R.C. 2901.07(B)(3)(a) does not expressly mention retroactivity,” the state Supreme Court found that “version of the statute can be applied only prospectively.”

Hence, the Court concluded that “because Consilio pleaded guilty and was sentenced to supervised release before May 18, 2005, he is not required to submit to the DNA specimen collection procedure pursuant to the HB525 version of the statute. All individuals not covered by the previous list of enumerated felonies that were sentenced to supervised release before May 18, 2005, and that completed this supervision before July 11, 2006, are similarly exempted.” See: Ohio v. Consilio, 114 Ohio St.3d 295, 871 N.E.2d 1167 (Ohio 2007).

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Related legal case

Ohio v. Consilio