[Cite as State v. Gregoire, 2020-Ohio-415.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

STATE OF OHIO, 

 Appellee, 

 - vs - 

CHRISTOPHER J. GREGOIRE, 

 Appellant. 

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CASE NO. CA2019-04-066 

O P I N I O N 

2/10/2020 

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CR2015-09-1383 

Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government 

Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee 

Rittgers & Rittgers, Neal D. Schuett, 121 West High Street, Oxford, OH 45056, for appellant 

 M. POWELL, J.

{¶ 1} Appellant, Christopher Gregoire, appeals a decision of the Butler County 

Court of Common Pleas denying his motion for limited driving privileges. 

{¶ 2} Gregoire was indicted in October 2015 on one count of operating a vehicle 

while under the influence of alcohol ("OVI"), a fourth-degree felony, and one count of driving 

under OVI suspension. At the time of the indictment, Gregoire had already been convicted 
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of OVI on three prior occasions within the previous six years. On January 4, 2016, Gregoire 

pled guilty to the fourth-degree felony OVI; the driving under OVI suspension charge was 

dismissed. Following a sentencing hearing on February 17, 2016, the trial court sentenced 

Gregoire to 12 months in prison. The trial court further suspended Gregoire's driver's 

license for a period of six years that was to expire on February 16, 2022.1 

{¶ 3} At the time Gregoire was convicted and sentenced, R.C. 4510.13(A)(3) 

prohibited a trial court from granting limited driving privileges to a person whose driver's 

license had been suspended pursuant to R.C. 4511.19(G) "if the offender, within the 

preceding six years, has been convicted of or pleaded guilty to three or more [OVI] 

violations." (Emphasis added.) R.C. 4510.13(A)(3) was amended by Sub.H.B. No. 388 

("H.B. 388") on April 6, 2017, and now prohibits a trial court from granting limited driving 

privileges to a person whose driver's license has been suspended pursuant to R.C. 

4511.19(G) "if the offender, within the preceding ten years, has been convicted of or 

pleaded guilty to three or more [OVI] violations." (Emphasis added.) 

{¶ 4} On March 4, 2019, Gregoire moved to terminate his driver's license 

suspension or, alternatively, for limited driving privileges. Gregoire argued that the trial 

court should apply the six-year look-back period set forth in the former R.C. 4510.13(A)(3) 

that was in effect at the time of his conviction, and not the ten-year look-back period set 

forth in the newly amended R.C. 4510.13(A)(3). Gregoire argued that applying the ten-year 

look-back period to convictions committed prior to the April 6, 2017 amendment of the 

statute would operate as an unconstitutional ex post facto application of the law in violation 

of the United States and Ohio Constitutions. 

 

1. At sentencing, the trial court suspended Gregoire's driver's license for a period of six years. However, the 

trial court's original sentencing entry erroneously suspended Gregoire's driver's license for a period of six 

months. The trial court corrected the clerical error via a nunc pro tunc entry on August 8, 2018. 
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{¶ 5} On March 29, 2019, the trial court denied Gregoire's motion. The trial court 

found that applying the ten-year look-back period would not operate as an unconstitutional 

ex post facto application of the law because amended R.C. 4510.13(A)(3) was remedial, as 

opposed to substantive, in that "it has no effect on substantial rights, but rather provides a 

course of procedure for the enforcement of rights." In so holding, the trial court relied on 

this court's opinion in State v. Redman, 163 Ohio App.3d 686, 2005-Ohio-5474 (12th Dist.). 

{¶ 6} Gregoire now appeals, raising one assignment of error: 

{¶ 7} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED MR. 

GREGOIRE'S MOTION FOR DRIVING PRIVILEGES. 

{¶ 8} Gregoire argues the trial court erred in denying his motion for limited driving 

privileges by applying the ten-year look-back period set forth in amended R.C. 

4510.13(A)(3). Gregoire asserts that amended R.C. 4510.13(A)(3) was not intended to be 

applied retroactively by the General Assembly. Gregoire further asserts that the retroactive 

application of the ten-year look-back period amounts to an unconstitutional ex post facto 

law in violation of the United States and Ohio Constitutions. 

{¶ 9} It is well settled that a statute is presumed to apply prospectively unless 

expressly declared to be retroactive. R.C. 1.48; State v. Consilio, 114 Ohio St.3d 295, 

2007-Ohio-4163, ¶ 9. Section 28, Article II of the Ohio Constitution, in turn, prohibits the 

General Assembly from passing retroactive laws. Applying these two provisions, the 

Supreme Court of Ohio has established a two-part test to determine whether a statute may 

be applied retroactively. Id. at ¶ 10. 

{¶ 10} Under this test, a court must first determine as a threshold matter whether the 

General Assembly expressly intended the statute to apply retroactively. Id.; Hyle v. Porter, 

117 Ohio St.3d 165, 2008-Ohio-542, ¶ 8; Bielat v. Bielat, 87 Ohio St.3d 350, 353 (2000). If 

a statute is clearly retroactive, the court must then determine whether it is substantive or 
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remedial in nature. Consilio at ¶ 8. A retroactive statute is unconstitutional if it retroactively 

impairs vested substantive rights, but not if it is merely remedial in nature. Id. at ¶ 9; Hyle

at ¶ 7. A reviewing court does not address the question of constitutional retroactivity unless 

and until it determines that the General Assembly expressly made the statute retroactive. 

Hyle at ¶ 10. In other words, "[t]he General Assembly's failure to clearly enunciate 

retroactivity ends the analysis, and the relevant statute may be applied only prospectively." 

Consilio at ¶ 10. 

{¶ 11} We first determine whether the General Assembly expressly made the 2017 

amendments to R.C. 4510.13(A)(3) retroactive. Gregoire asserts the General Assembly 

did not clearly proclaim that amended R.C. 4510.13(A)(3) was to apply retroactively, and 

thus, the trial court erred in retroactively applying the statute. The amended version of R.C. 

4510.13(A)(3) provides that 

No judge or mayor shall grant limited driving privileges to an 

offender whose driver's or commercial driver's license or permit 

or nonresident operating privilege has been suspended under 

division (G) or (H) of section 4511.19 of the Revised Code, 

under division (C) of section 4511.191 of the Revised Code, or 

under section 4510.07 of the Revised Code for a municipal OVI 

conviction if the offender, within the preceding ten years, has

been convicted of or pleaded guilty to three or more violations

of one or more of the Revised Code sections, municipal 

ordinances, statutes of the United States or another state, or 

municipal ordinances of a municipal corporation of another state 

that are identified in divisions (G)(2)(b) to (h) of section 2919.22 

of the Revised Code. 

{¶ 12} "In order to overcome the presumption that a statute applies prospectively, a 

statute must 'clearly proclaim' its retroactive application." Hyle, 2008-Ohio-542 at ¶ 10; 

Consilio, 2007-Ohio-4163 at ¶ 15. "Text that supports a mere inference of retroactivity is 

not sufficient to satisfy this standard; we cannot infer retroactivity from suggestive 

language." (Emphasis sic.) Hyle at ¶ 10. Likewise, a statute's "ambiguous language is not 

sufficient to overcome the presumption of prospective application." Id. at ¶ 13. "If the 
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retroactivity of a statute is not expressly stated in plain terms, the presumption in favor of 

prospective application controls." Consilio at ¶ 15. 

{¶ 13} Upon reviewing amended R.C. 4510.13(A)(3) and H.B. 388, we find that 

neither expressly proclaim retroactivity. At most, the language of the statute implies 

retroactivity. However, as the supreme court unequivocally held, the mere suggestion or 

inference of retroactivity is not sufficient to overcome the presumption of prospective 

application; instead, the statute must "clearly proclaim" its retroactive application. Consilio

at ¶ 15; State v. Thacker, 5th Dist. Fairfield No. 07 CA 38, 2008-Ohio-2746, ¶ 19. 

{¶ 14} In support of the trial court's retroactive application of the statute, the state 

argues that amended R.C. 4510.13(A)(3) "is devoid of any language indicating an intent to 

* * * have prospective application only." However, that is not the test. Rather, the question 

is whether the General Assembly expressly made the statute retroactive. Furthermore, 

notwithstanding the state's assertion, a look-back period does not "expressly or even 

implicitly make a statute retroactive." Carney v. Shockley, 7th Dist. Jefferson No. 14 JE 9, 

2014-Ohio-5830, ¶ 40. 

{¶ 15} "[T]he General Assembly is presumed to know that it must include expressly 

retroactive language to create that effect." Consilio, 2007-Ohio-4163 at ¶ 15. "In drafting 

prior legislative enactments and amendments, the General Assembly certainly has 

demonstrated its ability to include retrospective language when it so desires." State v. 

Lasalle, 96 Ohio St.3d 178, 2002-Ohio-4009, ¶ 15. Several cases serve as examples of 

clear expressions of retroactivity and underscore the absence of a comparable declaration 

in amended R.C. 4510.13(A)(3). 

{¶ 16} For instance, a statute expressly applying to any action pending on the 

effective date of the statute, which included causes of action which arose prior to the 

statute's effective date, "notwithstanding any provisions of any prior statute or rule of law" 
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was found to clearly indicate a legislative intent that it be applied retroactively. Van Fossen 

v. Babcock & Wilcox Co., 36 Ohio St.3d 100, 106 (1988). Likewise, in a case cited by the 

state, a statute expressly applying to anyone who "was convicted of or pleaded guilty to a 

sexually oriented offense prior to the effective date of this section, if the person was not 

sentenced for the offense on or after" that date was found to clearly proclaim its retroactive 

application. State v. Cook, 83 Ohio St.3d 404 (1998).2 See also Bielat, 87 Ohio St.3d 350 

(finding that the General Assembly expressed a clear intent that a statute would be applied 

retroactively where the statute specifically stated that it applied to conduct done "prior to, 

on, or after" the effective date of the statute); State v. Ferguson, 120 Ohio St.3d 7, 2008-

Ohio-4824, ¶ 16 (finding that the General Assembly intended a statute be applied 

retroactively where the statute stated "that it applies to offenders who were sentenced to 

prison for offenses against children" regardless of when the offenses were committed). 

{¶ 17} Amended R.C. 4510.13(A)(3) is likewise vastly different from the statute at 

issue in this court's opinion in Redman and the trial court's reliance on Redman is 

misplaced. The trial court denied Gregoire's motion for limited driving privileges on the 

ground that similar to the statute at issue in Redman, amended R.C. 4510.13(A)(3) "falls 

within the definition of 'remedial' because it has no effect on substantial rights, but rather 

provides a course of procedure for the enforcement of rights." However, the two statutes 

significantly differ in that the General Assembly expressed a clear intent that the statute at 

 

2. In its brief, the state does not address whether the General Assembly expressly intended amended R.C. 

4510.13(A)(3) to apply retroactively. Instead, the state only addresses whether the application of the ten-year 

look back period constitutes an unconstitutional ex post facto law. In doing so, the state relies upon the "intenteffects" test used by the Ohio Supreme Court in State v. Cook, 83 Ohio St.3d 404 (1998). The state's reliance 

on the "intent-effects" test is misplaced. In Cook, the supreme court applied this test when it addressed 

whether the statute at issue violated the Ex Post Facto Clause of the United States Constitution. Such 

analysis, however, came only after the supreme court found that the statute was constitutionally retroactive 

under the Ohio Constitution because the General Assembly specifically intended that the statute apply 

retroactively and the statute was remedial in nature. However, as stated above, the question of constitutional 

retroactivity "does not arise unless there has been a prior determination that the General Assembly specified 

that the statute so apply." Id. at 410. 
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issue in Redman was to apply retroactively to conduct that was committed prior to the 

statute's effective date. Redman, 163 Ohio App.3d at 693 (noting that the statute at issue 

expressly stated that it was to "apply to conduct or an offense committed prior to" the 

statute's effective date). Curiously, such crucial difference was noted, but ultimately 

ignored, by the trial court: "The statute at issue in Redman is distinguishable from the statute 

at bar because [R.C.] 4510.54 * * * did explicitly provide that the statute applied to offenses 

committed prior to the effective date of the statute, which [R.C.] 4510.13 does not." Despite 

the foregoing finding, the trial court improperly resolved the issue of retroactivity upon 

whether amended R.C. 4510.13(A)(3) was remedial or substantive in nature. 

{¶ 18} Because amended R.C. 4510.13(A)(3) lacks express language making it 

retroactive, our inquiry ends and we do not address whether the statute is substantive or 

remedial in nature. In other words, our conclusion that amended R.C. 4510.13(A)(3) was 

not expressly made retroactive precludes us from addressing the constitutional prohibition 

against retroactivity. Hyle, 2008-Ohio-542 at ¶ 24.3 It follows that amended R.C. 

4510.13(A)(3) may be applied only prospectively and the trial court erred in applying the 

ten-year look-back period of the statute when ruling upon Gregoire's motion for limited 

driving privileges. 

{¶ 19} We therefore reverse the trial court's decision denying Gregoire's motion for 

limited driving privileges and remand this matter for the trial court to rule upon the merits of 

Gregoire's motion for limited driving privileges by applying the six-year look-back period set 

forth in former R.C. 4510.13(A)(3) in effect at the time Gregoire was convicted. 

{¶ 20} Judgment reversed and remanded. 

 

3. It is upon this point that our dissenting colleague misconstrues our holding. It is of no consequence whether 

amended R.C. 4510.13(A)(3) implicates Section 28, Article II of the Ohio Constitution as impairing a vested 

right or is merely remedial because the General Assembly did not expressly declare the statute to have 

retroactive application. 
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PIPER, J., concurs. 

S. POWELL, P.J., dissents 

S. POWELL, dissenting. 

{¶ 21} I respectfully disagree with my colleagues that R.C. 4510.13(A)(3) has 

improper retroactive effect. Nor would I find that the statute impacts a vested right. 

Consequently, I would find the statute constitutional as applied and affirm the trial court. 

{¶ 22} As a preliminary matter, Ohio statutes are entitled to a strong presumption of 

constitutionality. Wilson v. AC&S, Inc., 169 Ohio App.3d 720, 2006-Ohio-6704, ¶ 62 (12th 

Dist.), citing State v. Cook, 83 Ohio St.3d 404, 409 (1998). A regularly enacted statute 

enjoys the benefit of every presumption of constitutionality. This court must find "clear 

conflict" between the statute in question and some particular provision of the Constitution. 

Id. 

{¶ 23} "Section 28, Article II of the Ohio Constitution prohibits the General Assembly 

from passing retroactive laws and protects vested rights from new legislative 

encroachments." Wilson at ¶ 65, citing Vogel v. Wells, 57 Ohio St.3d 91, 99 (1991). 

Impermissible retroactive laws are those that impose "new duties and obligations upon a 

person's past conduct and transactions* * *." Personal Serv. Ins. Co. v. Mamone, 22 Ohio 

St.3d 107, 109 (1986). 

{¶ 24} Amended R.C. 4510.13(A)(3) does not impose new "duties or "obligations" 

upon Gregoire. The statute does not impose a new penalty or increase the prior penalties 

imposed for any of Gregoire's past OVI convictions. It does not impose new driving 

restrictions. It does not require him to take any additional actions based upon his past 

conduct. The effect of the statute is that he simply ceased to qualify for limited driving 

privileges after the effective date of the act. Had Gregoire applied for privileges prior to the 
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amendment, he would have qualified to have the court consider his petition. 

{¶ 25} Were I to find that the statute had retroactive impact, I would not find that it 

extinguished any vested right. "A 'vested right' may be created by common law or statute 

and is generally understood to be the power to lawfully do certain actions or possess certain 

things; in essence, it is a property right." Washington Cty. Taxpayers Assn. v. Peppel, 78 

Ohio App.3d 146, 155 (4th Dist.1992). "It has been described as a right 'which it is proper 

for the state to recognize and protect, and which an individual cannot be deprived of 

arbitrarily without injustice.'" State ex rel. Jordan v. Indus. Comm., 120 Ohio St.3d 412, 

2008-Ohio-6137, ¶ 9, quoting State v. Muqdady, 110 Ohio Misc.2d 51, 55 (M.C.2000). A 

right cannot be considered "vested" unless it amounts to something more than a "mere 

expectation or interest based upon an anticipated continuance of existing laws." Roberts 

v. Treasurer, 147 Ohio App.3d 403, 411 (10th Dist.2001), quoting In re Emery, 59 Ohio 

App.2d 7, 11 (1st Dist.1978). 

{¶ 26} In Ohio, a license to operate a motor vehicle is a privilege, not an absolute 

property right. Doyle v. Ohio BMV, 51 Ohio St.3d 46 (1990), paragraph two of the syllabus. 

Thus, it goes without saying that the limited driving privileges that Gregoire sought were not 

his property right. 

{¶ 27} That Gregoire had no vested right in limited driving privileges is also 

reinforced by the fact that the Revised Code required him to petition the court for privileges. 

In other words, Gregoire had no automatic right to limited driving privileges. And even if 

Gregoire was otherwise qualified to file a petition does not mean that the court was required 

to grant the petition. The court's decision whether to grant or deny limited driving privileges 

is discretionary. R.C. 4510.021(A); R.C. 4510.13(B); State v. Butler, 12th Dist. Warren No. 

CA2011-01-004, 2011-Ohio-4565, ¶ 8. 

{¶ 28} All that Gregoire possessed prior to the effective date of amended R.C. 
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4510.13(A)(3) was a "mere expectation" that the look-back period set forth in that section 

would remain the same. However, Gregoire's mere expectation that the law would not 

change is not a vested right. For these reasons, I do not find "clear conflict" between this 

statute and the Ohio Constitution and would affirm the trial court.