Potter Law Blog

What Happens If You Violate Your Probation? - 4/20/2018

What happens if you violate your probation?

In criminal cases, a judge will often grant probation, releasing a defendant convicted of a crime back into the community under certain restrictions. Conditions of probation can include drug testing, meeting with a probation officer, and electronic location monitoring — anything a judge deems reasonable and appropriate.

If you fail to adhere to those conditions, you could just get off with a slap on the wrist — or you could fare much worse. Here are five potential consequences of a probation violation:

  • A warning. Probation officers have broad discretion for punishing probation violators. If your violation is minor or merely technical or unintentional, then your probation officer may just issue a warning and put you on notice that any future violations will be punished more severely.
  • A probation hearing. If you have already received a warning or have a history of past violations, your probation officer may order a probation hearing. If the judge at the probation hearing finds that you violated your probation, he may add additional terms to your probation or revoke it altogether. 
  • Additional probation terms. If the judge finds that you have violated the rules of your probation, he may simply add additional requirements to your original probation or extend it for a longer period of time. Like probation officers, judges have discretion to consider the circumstances of your violation, past violations and other factors in determining the punishment for violating your probation.
  • Fines. In addition to or in lieu of additional probation terms, a judge may order you to pay fines, even if you’ve already paid fines as part of your original sentencing.
  • Jail or prison. The judge may also sentence you to serve time in jail or prison, depending on the severity of your original offense and the severity of your violation. Because of your violation, your sentence may end up being longer than you would have had to serve in the first place. In most states, just as with a criminal conviction, a revocation of probation can be appealed.

If you are concerned that you may have violated your probation, or if you’re facing a probation violation hearing, a criminal defense attorney may be able to help you stay out of jail. If you are seeking representation, contact us now and schedule a confidential consultation.

SOURCE: http://blogs.findlaw.com/blotter/2014/05/what-happens-if-you-violate-your-probation.html

Possession of Marijuana and What to Expect - 4/13/2018

Possession of Marijuana

Being caught with marijuana in Ohio can be scary. Because marijuana laws vary greatly from state to state, you are probably unsure of what kind of punishment you will be facing. Anytime there is a potential for a jail sentence, you are entitled to feel frightened.

Many people get caught in possession of marijuana. It is one controlled substance that has a low risk for dependency and Ohio law treats it accordingly. If this is your first offense of this kind, you have little to worry about.

However, if this is your first time within the criminal court system, it is understandable that you would be stressed and worried about what the outcome may be. Your safest first move is to retain qualified counsel who can help you wade through the Ohio criminal courts system and come out with a positive outcome.

Marijuana Possession – Laws & Penalties

Possession of marijuana in Ohio has been decriminalized to a certain extent. This just means that for minor possession charges you will not be prosecuted aggressively, and won’t face harsh penalties.

If you are caught with less than 100 grams of marijuana, you will be cited with a “minor misdemeanor” and pay a fine of $100.

When you are caught with more than 100 grams, the offense becomes a criminal matter and you will face more serious charges.

100-200 grams 4th degree misdemeanor Up to 30 days in jail $250 in fines.
200-1,000 grams 5th degree felony 6 months to 1 year in prison and $2,500 in fines.
1,000- 5,000 grams 3rd degree felony 1-5 years in prison and up to $10,000 in fines.
5,000- 20,000 grams 3rd degree felony 1-5 years in prison and up to $10,000 in fines.
20,000 grams or more 2nd degree felony 2-8 years and up to $15,000 in fines.

Ref: ORC2925.11

Possession of drug paraphernalia associated with marijuana (pipes, water bongs) is a minor misdemeanor, as is possession of under 100 grams.

This passed as Senate Bill 337 and went into effect on Sept 28, 2012. Previously, this offense was a categorized as a fourth degree misdemeanor.

Ohio Marijuana Sale/ Delivery Laws & Penalties

If you are charged with attempting to sell or actually delivering marijuana, the penalties are raised. However, if the amount is less than 20 grams you will only face a minor misdemeanor charge and $100 fine.

However, if you are caught trying to deliver or sell any amount greater than 20 grams, you could be facing serious felony charges and a lengthy prison term.

Can I Avoid Harsh Penalties on a Marijuana Offense in Ohio?

Yes, in many cases you can. Ohio criminal courts are typically lenient on first time offenders and offer pre-trial diversion and other sentencing alternatives to qualified defendants. Call for a consultation on your marijuana charge so we can discuss the alternatives that may be available to you.

We have defended cases just like yours in Ohio. We know the courtroom players and have gained respect within the legal community. We can be your advocate in a system that can sometimes seem overwhelming. 

SOURCE: http://www.myohiodefenselawyer.com/criminal-charges/possession-marijuana/

Can Past Convictions Affect My Criminal Case? - 4/6/2018

As the saying goes, “when it comes to human beings, the best predictor of future behavior is past behavior.” But can pop psychology mantras be maxims of law in criminal courts? Can evidence of past crimes, even far off or juvenile offenses, be used against you in a new case?

It’s a broad question, and one that can only be answered with a few specifics, additional circumstances, and, of course, some caveats. Here’s what you need to know.

Pre-Trial

Police and prosecutors will generally have access to all of your criminal records. Even if you’ve had them expunged, law enforcement can see if you have past convictions, and those past convictions can affect what kind of charges will be filed against you and the kind of plea bargain prosecutors may offer in your case. Often, a second or third offense (of the same crime) can be charged as a felony, meaning increased penalties or prison time, and prosecutors are far less inclined to be lenient with a repeat offender.

Additionally, if the past conviction included probation or parole, a new arrest or criminal charges could violate the conditions of your release, possibly sending you to jail. And if you remain subject to a suspended sentence or deferred prosecution, those prior charges could be reinstated.

During Trial

As general rule, the law leans in the opposite way of psychologists when it comes to predictive behavior, and past criminal behavior cannot be used to prove that you committed a crime. Even if you’ve been convicted of a DUI, prosecutors can’t use that to say you drove drunk again.

But there may be exceptions if you choose to testify on your own behalf. While you are not legally required to do so, if you choose to take the stand, your credibility as a witness will be an issue. This may open the door for prosecutors to ask about past convictions, provided they will shed light on your reliability as a witness or propensity to tell the truth. Even then, there are a variety of factors that will determine whether the past convictions will be relevant, or admissible as evidence.

Representation

The best way to know whether and how your past crimes may come back to haunt you is to contact an experienced criminal defense attorney. If you are seeking representation, contact us now to schedule a confidential consultation

SOURCE: http://blogs.findlaw.com/blotter/2017/02/will-evidence-of-past-convictions-affect-my-criminal-case.html

The Ohio Felony Process - 3/22/2018

If you or someone you know has been charged with an Ohio felony, you will want to educate yourself on the law as much as possible. In addition, it would be wise for you to consult with an Ohio criminal lawyer about your case to better understand the process and to develop a defense strategy.

Probable Cause & the Search

Most people think the Ohio felony process begins with the arrest, but this is not necessarily true. Although police officers may be able to catch criminals committing certain crimes in the act, this is not always the case. That is why an investigation or search is necessary.

To conduct a search, a police officer will usually need to get a warrant from a court. This warrant allows the officer to check a specific location, such as your home, for evidence.

In order to get a search warrant, the officer must have probable cause that you committed or contributed to the crime. Probable cause means that it is highly likely.

However, officers do not always need to get a search warrant to search you, your car, or your property. For example, if you are arrested, the officer has a right to search your person. In addition, if you are arrested in a vehicle, the officer has the right to search your vehicle without a warrant.

The Arrest and Your Rights

If the police officer has sufficient reason to believe you have committed a crime, he or she will place you under arrest.

At this point, you will be able to exercise certain constitutional rights that protect those taken into custody. For instance, you will have the right to remain silent. This means that you do not have to answer any questions from police or investigators. This right allows you to avoid incriminating yourself by accident.

You will also have the right to an attorney. This means that once you are taken into custody, you will be able to call your lawyer, so that he or she can be present during questioning.

If you cannot afford an attorney, you have the right to have an attorney appointed. This kind of attorney is known as a public defender.

Ohio Felony Arraignment

Within about three days of your arrest, you will be arraigned. This means that the charges against you will be read aloud in court and you will have the ability to enter your plea. In Ohio, your plea options include:

  • Pleading guilty: This means that you admit that you did the crime.
  • Pleading not guilty: This means that you claim you did not commit the crime.
  • Pleading no contest: This means that although you do not admit guilt, you also do not dispute the charges. This plea is often used if a corresponding civil trial is expected.
  • Pleading mute: This means you do not enter a plea, and so the court enters a not guilty plea. This allows you to dispute the Ohio felony process up to that point.

Setting Bail

At the arraignment, the court may set bail for you. Bail is the amount of money you must pay in order to be let out before your trial takes place. It is to help ensure that you will not just flee and escape prosecution. In certain circumstances, the court may refuse to grant bail.

In Ohio, bail can be paid in cash, by pledging property or by a bail bond.

The Trial

Under Ohio felony laws, your trial will take place within 275 days after the arrest was made. You will have the right to a jury trial; however, you may file a written waiver with the court to waive this right.

As per the Constitution, your trial will be speedy. If you are found guilty, you will have 30 days to file an appeal.

Attorney

If you are seeking counsel, don’t hesitate, give our office a call. Mr. Potter has been practicing criminal defense for over 35 years and he is ready to assist you with your legal needs.

SOURCE: http://www.attorneys.com/criminal-defense/ohio/the-felony-process/

What to do if you’re arrested for OVI - 2/4/2018

What used to be known as DUI charges in the state of Ohio is now referred to as an OVI, or operating a vehicle impaired. What many people do not know about OVI/DUI charges is that the law is not limited to individuals driving a traditional vehicle, like a car or truck. An officer can charge you with drunk driving if you are driving a golf cart, ATV, lawnmower or even riding a bicycle.

If you think you can avoid an OVI/DUI arrest by sleeping it off in the car before heading home, you would be wrong. An officer can pursue OVI/DUI charges against any individual who is “in control” of the vehicle. Under Ohio law, if you are in the driver’s seat and have the keys in your position, you are in control of that vehicle and can face an OVI/ DUI arrest.   

Be polite, but don’t incriminate yourself

Whether you were pulled over for speeding or weaving out of your lane, a police officer is trained to identify evidence of intoxication from the moment they approach your vehicle. After finding a safe place to pull over, remain in your car with your hands on the steering wheel. Be polite and do not lie to the officer, however, you can decline to answer incriminating questions.

Any observation that an officer makes, slurred speech, alcohol or drugs that are visible in the vehicle, lack of coordination, etc., will be used as probable cause to justify the officer making an arrest for operating a vehicle impaired. Don’t add to that evidence by answering “how much have you had to drink” with a response of “5 beers and 3 shots of tequila.” You have the right not to answer, and your OVI/DUI attorney will thank you.  

After an arrest, it is your attorney’s job to review any evidence the officer collected to determine if the officer was justified in administering a field sobriety test and/or arresting you. Charges can be thrown out if this evidence does not hold up, but not if you incriminate yourself with your responses.

 Breathalyzers and chemical tests

When you are detained for suspicion of drunk driving, the officer may ask you to submit to a breathalyzer or request a urine or blood test to determine if you are under the influence of drugs or alcohol.  You do have right to refuse, however you will face an OVI/DUI arrest and will automatically loose your license for a minimum of one year. This is outlined in Ohio’s implied consent law. Nevertheless, it is advantageous if you refuse to blow, which will make it harder for the officer to compile evidence against you.

Your rights after an arrest

Ohio law finds a driver to be “under the influence” if there is a blood alcohol level of .08 or higher. An OVI charge is not limited to alcohol, however. The use of drugs, legal or otherwise, that impair your ability to operate a vehicle can lead to an OVI charge.

Your OVI/DUI defense begins as soon as you are pulled over. When you are arrested, you have the right to request an OVI/DUI lawyer who can advise you of your options. In situations like this, you want an OVI/DUI lawyer who is not only experienced in dealing with Ohio laws, but is also available 24/7. The Law Office of Skip Potter has been representing individuals in northwest Ohio for 30 years. If you want a lawyer you can trust to help you make the best legal decisions in a difficult situation, you want Skip Potter on your side.

What is PROBABLE CAUSE? - 1/20/2018

What is Probable Cause

Probable cause is loosely defined as a reasonable belief that an individual has, is, or will commit a crime. In order to prove probable cause, a police officer must have factual knowledge and evidence for a judge to sign off on a warrant for arrest as well as the search and/or seizure of property.

Establishing Probable Cause

Although factual evidence must be provided to prove probable cause, police are not expected to prove guilt beyond a reasonable doubt at this stage. They simply need to provide sufficient knowledge of objective facts that support their belief that a person may have committed a crime.

Sources of probable cause can come from any of the following categories:

  • Observation – This can include information an officer collects through sight, smell or sound. For example, the smell or visual evidence of drugs give an officer probable cause for an arrest, search and seizure of evidence.
  • Circumstantial evidence – This is evidence that indirectly indicates that a crime has been committed (for example, a broken window). Although this evidence does not prove guilt, it does provide probable cause in an investigation.
  • Expertise – Police officers are trained to identify movements, gestures and tools that indicate criminal activity. Their expertise in this area can provide sufficient evidence for a judge to sign off on probable cause.
  • Information – This includes statements taken from witnesses, victims and informants.
  • Consent – When a defendant voluntarily agrees to a search, probable cause is automatically established.
  • Traffic Violations – To justify a traffic stop, an officer must personally observe a violation. This could include running a stoplight, weaving across lanes or failing to signal, just to name a few.

 Who determines if Probable Cause Exists

Although the police officer must provide the evidence to establish probable cause, a judge will give the final determination. There is no set amount of information required to prove probable cause, so the judge must balance the rights of the police to conduct an investigation with the rights of the individual, which are protected by the Fourth Amendment of the U.S. Constitution.

In some situations, police will establish probable cause in the moment and make an arrest. In these cases, a judge may later determine that the evidence the officers acted on was not sufficient, making any evidence collected inadmissible in court.

For this reason, obtaining an experienced criminal defense attorney is essential. Skip Potter offers tough, aggressive legal advice and representation that will help you make sound decisions when handling your legal issues. Don’t wait, call today for a free, confidential consultation at 419.353.7547.

 

NEED TO KNOW: Search Warrants - 1/16/2018

Search Warrants

If you have watched any crime drama on television or in the movie theater, you likely know that the police are usually required to present a warrant before conducting any search or seizure of person or property. In order to obtain a search warrant, officers must prove to a judge there is probable cause to suspect you of a crime.

Within the warrant, a judge will define a particular area that can be searched as well as specific items that can be seized. Police are not authorized to search any area outside of what is defined in the warrant unless they are acting to protect themselves or the public, or they are preventing the destruction of evidence.

Can police conduct a search without a search warrant?

There are situations where the police are able to conduct a search or seize evidence without first obtaining a search warrant.

  • Consent – If an individual voluntarily agrees to the search of his or her property, a warrant is not required. You do have the right to refuse a search when there is no warrant, although it is wise to consult a defense attorney before making this decision.
  • Plain View – If evidence is clearly visible, or police witness an illegal act, they do not need a warrant to conduct a search or seize evidence. For example, if you are pulled over and you have drugs on the seat next to you, the officer can legally search your vehicle.
  • Exigent Circumstances – If the police believe that public safety is in jeopardy or evidence is being destroyed, they are not expected to wait for a warrant before acting. This includes the pursuit of a suspect who is trying to escape.

Know your rights

Whether you are innocent or guilty, Skip Potter is committed to serving all of his clients as the best defense attorney in Northwest Ohio. He will fight effectively, compassionately and aggressively for your rights. This includes obtaining dismissals for false accusations and minimizing the charges that you may be facing. In all situations, Skip Potter will help you get the best outcome in your case.

OVI: Do you have to provide a blood test? - 1/6/2018

Do you have to provide a blood test when asked?

 If you are arrested for Operating a Vehicle while Intoxicated (OVI) in the state of Ohio, you are lawfully required to submit to a blood, breath or urine test. This is because of Ohio’s “implied consent law,” which basically states that by driving on Ohio’s roadways you automatically consent to taking a chemical test of the officer’s choosing within two hours of being arrested.

What may not be commonly known is that, even if you are sitting in a parked car, you can still be charged with OVI. The law state that if you are “in control” of the vehicle, meaning that you are in the driver’s seat and you have the keys in your possession, you are subject to the same charges as if you were driving the car down the road.

 

If you refuse to take the test…

 It does not help you to refuse to take a blood test when you are arrested for an OVI in the state of Ohio. As a matter of fact, under the implied consent law, refusal can be used as evidence that you were intoxicated and guilty of the OVI.

Regardless of your guilt or innocence, if you refuse to submit to a blood test after an OVI arrest, you will automatically lose your license for an entire year. If you are arrested for OVI and it is your second refusal, that suspension is increased to two years, and for three years for your third refusal. Any prior OVI convictions will count against you and increase the time of your suspension.

If you have two or more OVI convictions within the past six years, the arresting officer has the legal right to use reasonable force to obtain a blood test to measure your blood alcohol level. Reasonable force can include the officer physically restraining your arm so a nurse can draw your blood without your consent.

If you are facing an OVI/DUI arrest, the law office of Skip Potter is available 24/7, day or night. For a free DUI/OVI defense consultation to discuss your OVI arrest, contact Skip Potter at 419-353-SKIP.

Changes to Ohio’s OVI Penalties - 8/30/2017

Some changes to Ohio’s OVI laws effective April 6, 2017.  These changes primarily involve a change in the look-back period from 6 years to 10 years as well as a push to increase the use of interlock systems.  While there are some concerns regarding the clarity of the law and certain nuances of its application, the following summarizes the more important implications.

Look-Back Period

OVI penalties increase depending on the number of prior OVI convictions.  Currently, mandatory minimums increase depending upon the number of OVI convictions within the past 6 years.  Effective April 6, 2017, the look-back period will increase to 10 years.  

License Suspensions

The second significant change has to do with license suspensions.  The maximum license suspensions were increased, but more importantly, the minimum license suspension for a first-time OVI was doubled: increased from 6 months to 1 year.

Interlock Systems

Interlock systems are devices that must be installed on a vehicle that will test the driver’s breath for alcohol before allowing the vehicle to start.  For first-time convictions, courts are given discretion to order unlimited driving privileges with the use of an interlock.  There are several implications, most of which can be found in the new Interlock Revised Code Section 4510.022:

  • The minimum suspension is cut in half from 1 year to 6 months.
  • The court “shall suspend any jail term imposed for the OVI offense.”

With the good comes the bad, however.  First, it should be noted that this does not apply to pre-conviction suspension (i.e., Administrative License Suspensions).  Second, interlock systems are susceptible to false-positives. In addition to simple equipment malfunctions, false positives may be caused by mouthwash, energy drinks, chewing tobacco, menthol cigarettes, sweets, spicy foods, yeasty foods, etc… 

Interlock Violations:

If the interlock detects a violation, there are consequences:

  • Imposition of the suspended jail sentence
  • Increasing the length of the license suspension
  • Requiring the use of a SCRAM (CRAM) – ankle bracelet to monitor alcohol use

Notice of violations will be sent to the defendant who can then appeal the violation within 14 days.  However, the code that governs violations (R.C. 4510.46) limits the grounds for appeals to whether the “offender committed an ignition interlock device violation.”

Pertinent Interlock Implications:

Additionally, the new statute requires those with the interlock to get an interlock driver’s license, which will list the interlock restriction.  Driving without the license is a first-degree misdemeanor with a mandatory minimum three-day jail sentence.  All interlocks will also be required to have cameras by 2020.

Finally, there is a cost factor for interlock systems, although some funds are to be available to assist indigent defendants.

Conclusions

Ohio’s OVI laws continue to become harsher.  With HB 388, the look-back period was increased and the length of license suspensions was increased.  And while the concept of unlimited driving privileges with an interlock seem reasonable, the details make it a risky and potentially expensive proposition.  Finally, interlock system is discretionary for the courts and they may choose to simply ignore them.  However, it is an option that may for the right people be the right decision and therefore requires full knowledge of the implications to evaluate.

SOURCE: https://brianjsmithesq.com/blog/2017/3/15/changes-to-ohios-ovi-penalties-effective-april-6-2017-hb-388-annies-law

Fleeing and Eluding in Ohio - 7/28/2017

Fleeing and Eluding

When alleged offenders are charged with failure to comply with the order or signal of a police officer in addition to operating a vehicle under the influence of alcohol or drugs (OVI) in Ohio, the alleged eluding or fleeing of law enforcement can potentially result in even more serious penalties than just the driving under the influence (DUI) offense.

While failure to comply may be a misdemeanor offense in most cases, certain aggravating factors can make the alleged crime a felony.

Under Ohio Revised Code § 2921.331, it is a first-degree misdemeanor if an alleged offender fails to comply with any lawful order or direction of any police officer invested with authority to direct, control, or regulate traffic or operates a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring the person’s motor vehicle to a stop.

Failure to comply becomes a fourth-degree felony if, in committing the offense, the alleged offender was fleeing immediately after the commission of a felony. The crime becomes a third-degree felony if:

  • The operation of the motor vehicle by the alleged offender was a proximate cause of serious physical harm to persons or property; or
  • The operation of the motor vehicle by the alleged offender caused a substantial risk of serious physical harm to persons or property.

Prosecutors will attempt to use alleged fleeing and eluding as evidence that alleged offenders panicked because they knew they were intoxicated. Oftentimes, there can be much more understandable explanations for a motorist’s failure to immediate stop. In some cases, the person will flee because of a suspended license or an outstanding warrant.

In some cases, drivers may have had justifiable personal safety concerns that prevented them from stopping as soon as possible. Occasionally, failure to stop can be based on reasonable doubts about authenticity because the vehicle was not marked or the officer was not in traditional uniform. Weather can also be to blame and sometimes people just simply did not see or hear any signals to stop.

Were you charged with failure to comply when you were arrested for OVI in Ohio? Don’t hesitate, contact Skip Potter now. He is here to assist you with your legal needs.