R.C. 2951.041(A)(1) gives "offenders" the possibility of intervention in lieu of conviction, but it also gives full authority to the trial judge to deny that possibility from any and all offenders. This was the issue in State v. Rice, 2009-Ohio-162.
Rice appeared to be a good candidate for ILC, but the trial judge denied Rice's request without a hearing. And when a request for ILC is denied without a hearing, according to State v. Rice, nothing can be done about it. In a 2-1 decision, Ohio's Second District Court of Appeals found that there was no plain error even if the trial judge abused her discretion in denying ILC without a hearing.
At paragraph 18, the majority explained:
"It is unfortunate that the General Assembly crafted R.C. 2941.041 as it did. That section creates a substantive right of relief, but permits the court to deny the right by overruling the defendant's procedural request for a hearing. If that allows courts disposed against the state's policy favoring [ILC] to undermine that policy by arbitrarily denying the hearing, then the General Assembly should remove that impediment against its policy from R.C. 2941.041."
