Ohio’s Version of the Scarlet Letter

“On the breast of her gown, in fine red cloth, surrounded with an elaborate embroidery and fantastic flourishes of gold-thread, appeared the letter A.”

Bright yellow plates with bright red numbers and letters. Legislature has mimicked Nathaniel Hawthorn’s Scarlet Letter and, unlike Hester Prynne, Ohioan’s are undoubtedly wearing their scarlet letters with shame.

Ohio’s current laws mandate OVI (most know it as DUI) offenders must forfeit their existing license plates in exchange for a restricted plate, which so happens to be a blaring yellow and red. Compare those restricted plates with the normal (and virtually unnoticeable) white and blue lettered plates and, boom, you’re instantly known as a criminal and publicly shamed. Here’s a quick run down of the law:

• A refusal of the BAC test will result in an automatic license suspension, for a period of 1 to 5 years
• Failure of the BAC test will result in an automatic license suspension, for a period of 90 days to 3 years
• The judge will have discretion whether to grant the offender specialized driving privileges during the suspension
• Any “high-tier” DUI offender granted specialized driving privileges must forfeit their normal license plate and exchange it for the bright yellow and red restricted plate. High-tier offenders have a BAC of 0.17 or higher
• These yellow plates are only given to DUI offenders
• The plate must be kept on the offender’s registered vehicle throughout the entire term of the suspension, regardless of who is driving

Is This Form of Public Shaming Legal?

Many courts have found some sort of public shaming legal, while others have not. Proponents against public shaming punishments argue such punishments violate Free Speech and are Cruel and Unusual Punishment, but as with anything, it largely depends on the court and the circumstances surrounding the case. 

Pennsylvania’s sentencing code requires sentencing to be for the purpose of rehabilitation, or reforming the criminal. The Pennsylvania Supreme Court found requiring a defendant to send a picture of herself in handcuffs with an apology to her fellow co-workers as part of her sentence was solely for the purpose of humiliation and was not upheld.

Ohio’s sentencing code has a similar purpose: to rehabilitate, punish, and deter. Legislature insists their scarlet letter law was created to deter driving under the influence and not humiliation.  Is the embarrassment of driving around with a plate that everyone knows as a DUI offender enough to deter driving under the influence?  Maybe, but it’s probably not enough.

If deterrence is truly the only intent, an ignition interlocks is an alternative that accomplishes even better results with less constitutional implications. The biggest downsides of interlock ignitions are the costs involved with installing.

Is This a Lawsuit Waiting To Happen?

Sex offender registry laws are the perfect example of a scarlet letter law extending to other types of crimes and they have the approval of the Supreme Court. However, a sex offender registry is not quite as public as the yellow license plate because it’s less conspicuous and any harm to the offender is outweighed in the interest of public safety.

Florida has been challenged on their version of the scarlet letter law. There, DUI offenders are required to place bumper stickers on their cars that read “CONVICTED DUI.” Florida’s law was ultimately upheld because the bumper sticker was attached to a velcro strip and the law permitted the sticker to be removed when the DUI offender was not driving the car.

Ohio’s law brings more risk because these laws have the potential to not only affect the offender, but innocent persons as well.

Consider these scenarios:

1. Tom gets convicted of a DUI and is required to put the yellow plate on his car. Tom and Hester share a car. Hester is a stay-at-home mom. They live in the country with no school bus routes, so Hester participates in a carpool with other parents to drive their kids to and from school. Hester now has to drive with yellow plates that scream “DUI Offender!” Other parents complain and will no longer allow Hester and her children to be a part of the weekly carpool. Hester now has no way to get her children to school on the days Tom has the car.
2. Same scenario as above. Tom has decided to interview for a higher paying position. Tom’s interview is going great and is going to be offered the job, but just as he was pulling out of the parking lot, the interviewer noticed the yellow license plates and decided not to give him a job.

In both scenarios, Hester and Tom have been unfairly punished as a result of the DUI plates. Unlike a sex offender registry, someone other than the DUI offender is being unfairly stigmatized.

The distinction between Ohio’s law and Florida’s law is the inability to remove the license plate. Not only does the law unfairly require innocent persons that are forced to drive the offender’s car to wear a scarlet letter, but it also raises potential bias and constitutional implications for the offender.