Potter Law Blog

DRUG POSSESSION LAWS - 9/21/2016

Ohio

Drug possession charges can do damage to your reputation and your future. Being charged with any criminal offense can be frightening. But, you don’t have to be a hardened criminal to face charges like these; regular people are charged with drug possession all of the time. An experienced defense attorney, however, understands your desire to reduce the consequences of these latest charges on your life and can help you get the best results possible on your day in court.

Drug Possession Laws in Ohio

Ohio drug possession laws are perhaps some of the most complex in the United States. Most states classify drug crimes by substance and/or quantity, but Ohio has a much more complicated formula.

Instead of prescribing a specific penalty depending on the substance or even depending on the amount, Ohio law sets “bulk amounts” for all controlled substance. Depending on the type of drug you were caught with, there is a different “bulk amount”. The penalty and charge you face, therefore, depends on the substance and the bulk amount as prescribed by law.

A drug possession charge could get you a few days in jail, or several years in prison. It simply depends on the facts of your case, and honestly, for most people, it is too complicated for you to discern how the states drug laws work without a legal background, or some experience in how the courts charge and prosecute these cases.
For that reason, it really pays to speak with an experienced criminal defense attorney who knows how to fight drug possession charges in Ohio courts.

Marijuana Possession Laws in Ohio

Possession of a small amount of marijuana has been decriminalized in Ohio. If you’re found in possession of less than 100 grams of pot (3 1/2 oz), you will only be ticketed and charged with a “minor misdemeanor”. This carries a fine of $100. However, if you had more than 100 grams, you will face penalties as shown in the box below. A few ounces is not necessarily a lot of marijuana for a casual smoker, so the charges can be significant. Larger volumes can lead to charges of felony drug dealing, even if the amount is strictly for personal use.

Amount

Charge

Penalty
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

Drug Sentencing – Alternatives to Incarceration

Depending on your criminal history and the facts of your case, you could qualify for diversion, or probation. Diversion is a program that allows for the charges to be dismissed if you complete a period of supervision and adhere to certain conditions. Probation is similar in that you will be supervised and have to conform to the rules but the charges aren’t dismissed.

When it comes to criminal charges, no one wants to be incarcerated. Fighting the serious and potentially life changing penalties of a drug possession conviction is the number one goal of a defense lawyer. Even if it’s only for a short amount of time, being locked up is not only traumatic, it can cost you your job and put a serious strain on your personal relationships. In most jurisdictions there are alternatives available. A local Ohio criminal defense attorney can assist you in determining the best route to take in your case. Building a solid defense strategy is crucial in getting you a positive outcome in court. Contact Skip Potter today to schedule a confidential consultation.

Source: http://www.drugpossessionlaws.com/ohio/

CRIMINAL PROPERTY DAMANGE - 9/8/2016

Ohio

The offense of criminal mischief according to Ohio statute is quite complex and broad. There are many acts that could land you a criminal mischief charge. This offense includes everything from physical property destruction to computer hacking.

Under the precise law, if the prosecution believes you did any of the following, you could be charged with this serious offense:

  • Knowingly tampered with, move, damage, destroy, or deface someone else’s property.
  • With intent to interfere with the use or enjoyment of someone else’s property, used a stink bomb, gas device, smoke maker or other device that releases something that is harmful or offensive or tends to cause alarm,
  • Knowingly moved, tampered with, destroyed, damaged or defaced a bench mark, boundary marker, or other survey station, monument or marker,
  • Knowingly moved, tampered with, destroyed, damaged, or defaced any safety device or any property that is used for the safety of others and the act diminished or destroyed its effectiveness as a safety measure, or
  • In an attempt to impair the functioning of a computer, computer system, network, software or program by hacking, altering, damaging, or by destroying a computer, system, network, software, data within a computer or by introducing a virus.

The charge you face depends on many factors. The most serious of criminal mischief offenses is a 1st degree misdemeanor. This means you could face a maximum of 6 months in jail and fines up to $1,000.

Ref: ORC 2909.07

Criminal Damage or Endangerment

Not as serious as a felony arson, a criminal damage or endangerment offense is committed when you cause or create a substantial risk of physical harm to someone else’s property either knowingly, or recklessly by fire, explosion, flood, poison gas, and similar substances.

In most circumstances criminal damaging and endangering is a second degree misdemeanor which carries a potential sentence of up to 90 days in jail and fines up to $750.

Ref: ORC 2909.06

Vandalism

You could be facing an Ohio Vandalism charge if you knowingly cause physical harm to an occupied structure or its contents, or someone else’s property when that property is used  for their business. The severity of the charge you face depends on the value of the property damage.

Value of Damage Vandalism Charge Level
 Potential Sentence
Less than $5,000 5th Degree felony 6-12 months in prison and $2,500 in fines.
$5,000 to $100,000 4th Degree felony 6-18 months in prison and $5,000 in fines.
More than $100,000 3rd Degree felony 1-5 years in prison and $10,000 in fines.

Ref: ORC 2909.05

Source: http://www.criminalpropertydamage.com/ohio/

Ohio OVI Law Frequently Asked Questions - 9/2/2016

WHAT DOES “PHYSICAL CONTROL” MEAN?

What does “Physical Control” mean?  Ohio’s Physical Control Statute, O.R.C. 4511.194, became effective on 1/1/05.  Physical Control is similar to an Ohio OVI/Ohio DUI charge in that it deals with being in a vehicle while under the influence of alcohol or drugs of abuse with one exception, Physical Control does not require that the vehicle have ever been driven or even started.

The best example of a Physical Control violation is the person who staggers out of the tavern and decides to “sleep it off” in their vehicle.  Often times what happens is the person starts the car, either to run the air conditioner or the heater, so the vehicle is actually running, then goes to sleep.  However, one need not have the car running or even have the keys in the ignition in order to be in violation of O.R.C. 4511.194 – Physical Control.  Under the statute, having the keys within reach will satisfy the definition of having “physical control.”   The physical control statute was essentially designed to “reward” or rather, not punish as severely, the person who drinks too much (or uses drugs of abuse) and then gets into their car, but decides not to actually drive.

CAN MY OHIO OVI/OHIO DUI CHARGE BE REDUCED TO A RECKLESS OPERATION CHARGE?

There is an overwhelming opinion amongst the general public (or maybe just the drinking public) that a first offense Ohio OVI/DUI should be reduced to a reckless operation charge.  Can this really happen?  Well, it depends in large part on a number of things, including, but not limited to:

  • The prosecutor’s attitude toward OVI/DUI charges;
  • The Court (or Judge’s) attitude toward OVI/DUI charges;
  • The actual facts of your case, including such facts as:
    a. Was there a breath test performed and if so, how high (or low) was the result;
    b. Was there an accident or bad driving; and
    c. Were you polite and cooperative to the arresting officer.

These are but a few of the many considerations that will be considered when the prosecutor and your OVI attorney/DUI attorney sit down to discuss the possible out come at a pre-trial conference.   This is not to say that if you had a low breath test and you were polite and cooperative that it guarantees a reduction of your charge, in fact, many courts (or prosecutors) take a “no reduction” or “zero tolerance” approach with OVI/DUI charges.  This is why it is so important to find an attorney who is familiar with the court and prosecutor that you will be facing in your OVI/DUI case.

WHY WAS I CHARGED WITH OVI/DUI WHEN I PASSED THE FIELD SOBRIETY TESTS?

Many people think they actually passed the field sobriety tests before they were arrested!  The problem is, most people who are taking the field sobriety tests are inexperienced in taking the tests and accordingly, have no idea what the officer is looking for.

If the officer checks your eyes, simply being able to follow the pen (or their finger) doesn’t mean you passed the test.  What the officer is looking for is an involuntary twitch of the eyeball called nystagmus – specifically, Horizontal Gaze Nystagmus (HGN).

Nystagmus is a condition that is checked for everyday in thousands of individuals and the HGN is usually administered by someone with much more schooling than a police officer – they’re called doctors!  Specifically, neurologists use this test on a daily basis to check patients for various neurological conditions such as multiple sclerosis and Parkinson’s disease.  There are numerous substances that we ingest that can also cause nystagmus including nicotine, caffeine and of course, alcohol.  Specifically, the National Highway Traffic Safety Administration (NHTSA) has told us that if a police officer gives this test using the specified procedures, it is a tool that can assist the officer in determining the likelihood of the test subject having a blood-alcohol level greater than 0.10 – specifically, there is a 77% chance that the person will test 0.10 or higher on a breath test machine (or blood or urine test).

The Walk & Turn test that was administered is another exercise used to assist the officer in knowing the likelihood of a subject testing 0.10.  Specifically, the officer should be trained to administer very specific instructions and then look for the following things:

  • Suspect Cannot Keep His Balance While Listening To The Instructions
    i. Score this only if suspect does not maintain the heel-to-toe position throughout the instructions (feet must actually break apart)
    ii. Do not score this clue if suspect sways/uses his arms to balance himself, but maintains the heel-to-toe position
  • Suspect Starts Before Instructions Are Finished
  • Suspect Stopped While Walking
    i. Record this clue if suspect pauses for several seconds
    ii. Do not record this clue if the suspect is merely walking slowly
  • Suspect Does Not Touch Heel-to-Toe – gap between heel and toe must be more than ½ inch
  • Suspect Steps Off The Line – at least one foot of the suspect must be entirely off the line
  • Suspect Uses Arms To Balance – arm(s) must be raised more than 6 inches from sides for this clue
  • Suspect Makes Improper Turn
    i. Suspect removes front foot from the line while turning
    ii. Suspect does not follow directions as demonstrated (i.e., spins or pivots around)
  • Suspect Uses Incorrect Number of Steps – either more or fewer steps in either direction

Again, NHTSA has indicated that if an officer observes two (2) or more of the preceding eight (8) indicators, there is a 68% chance the subject will test 0.10 or higher.

The One-legged stand (OLS) is the 3rd test endorsed by NHTSA as a tool to be used to help officers determine the likelihood a subject will test 0.10.  The NHTSA guidelines instruct the officer to watch for the following:

  • Suspect Sways While Balancing – side-to-side or back-and-forth motion while in one-leg stand position
  • Suspect Uses Arms To Balance – arms must be raised more than 6 inches from sides to count this clue
  • Suspect Hopping (to maintain balance) –resorts to hopping in order to maintain balance
  • Suspect Puts Foot Down – not able to maintain one-leg position, but puts foot down one or more times during 30 second count

As you may suspect, NHTSA tells us that if the proper instructions are administered, if an officer sees 2 of the preceding 4 indicators, there is a 65% likelihood the subject will test 0.10 or higher.

Your OVI/DUI attorney should be familiar with the NHTSA standardized procedures and criteria and know how to effectively challenge these tests in court.  Even if the judge says these tests are admissible at trial, a competent OVI attorney/DUI attorney should know how to deal with these tests in front of a jury (so long as the client was literally “falling down drunk”).

WHAT IS AN OVI?

OVI is the abbreviation for Operating a vehicle impaired.  Ohio’s General Assembly amended our drunk driving / DUI statute to broaden the offense from driving under the influence to operating a vehicle impaired.  The big difference is that operation does not require that the vehicle actually be moving.  As a matter of fact, the vehicle doesn’t even have to be running so long as you are in the driver’s seat and the keys are within reach.  Example: the vehicle is pulled off to the side of the roadway with the driver in the driver’s seat asleep (passed out) and the keys in the driver’s hand.

If the police officer can’t prove that you actually drove the vehicle while impaired, you can be charged with Physical Control (Ohio Revised Code Section 4511.194), however, so long as it can be reasonably inferred (either through direct or circumstantial evidence) that you drove while impaired, you can be charged with OVI.

LEGAL REPRESENTATION.

If you or someone you know is in search of legal representation for an OVI, don’t hesitate! Contact our office now to schedule a confidential consultation.

Source: http://www.ovilaw.com/ohio_ovi_faq.asp

Second Offense OVI/DUI in Ohio - 8/22/2016

With nearly 400 DUI/OVI related fatalities per year, Ohio has implemented strict rules governing second offenses. (The state also refers to DUI’s by the term “operating a vehicle under the influence,” which is shortened to OVI in its statutes. The two terms are interchangeable.) If a driver refuses a blood test (and this is second refusal, or second offense), there is an automatic license suspension of two years. A second DUI charge is punishable by a maximum of six months in prison (a misdemeanor). Potential penalties for a second DUI in Ohio are governed by section 4511.19 of the state’s Revised Code.

Look Back Period

A look back (or “washout”) period is the length of time that a prior DUI conviction or plea of guilty will be factored into an offender’s punishment. In Ohio, this period is six years. This means that any prior conviction or plea of guilty to a DUI occurring within six years of the current DUI conviction will be considered a first DUI offense. The court will then view the case pending before it as a second DUI and impose the statutorily increased penalties.

Administrative Penalties

Ohio statutes allow the department to revoke the offender’s license and immobilize his vehicle for 90 days. The period of suspension is at a court’s discretion. The suspension will continue even during an appeal of the ruling. To reinstate the license, a fee must be paid and the driver must show proof of insurance.

Criminal Penalties

The court can sentence a second time DUI offender to no fewer than 10 days and no longer than six months in jail or a combination of jail, house arrest with monitoring, and continuous alcohol monitoring. The court can also order the offender to attend and complete an alcohol treatment program. An offender might also be ordered to pay a minimum of a $525 and maximum of $1,625 fine.

Plea Options

In Ohio, an offender can plead guilty and accept the court’s punishment, not guilty and proceed to trial, or enter into a plea bargain with the state’s prosecutor. In a trial, a jury imposes penalties on the offender after finding him guilty. A plea bargain is a document of negotiated terms which the prosecutor and offender accept. Usually, these agreements have the same administrative but lesser criminal penalties.

Getting Legal Help

If you are facing a second DUI charge in Ohio, seek legal advice. An attorney will advise you about the state’s laws and discuss with you which penalties you could face. If you are seeking legal representation, contact our office now to schedule a confidential consultation.

Source: http://dui.drivinglaws.org/resources/ohio-second-offense-ovidui.htm by Rich Stim

What You Should Know about Being Stopped for Drunk Driving - 8/3/2016

Q: If I am stopped by the police after I’ve had a few drinks, what should I do?
A: First, pull to the right side of the roadway as soon as you can do so safely. Keep your hands on the steering wheel. Do not begin to search for paperwork until the officer asks you to. After providing your identifying information, you have a right to politely inform the officer that you will not answer any further questions without first speaking to an attorney.

Q: If I’ve said I won’t answer further questions without an attorney, and the officer tells me to get out of the car, do I have to comply?
A: Yes. You must get out of the car if ordered to do so. If you do not, you could be charged with a crime.

Q: What should I do if the officer wants to give me a sobriety test?
A: Once you are out of your car, you have the right to politely refuse all roadside sobriety tests. You are not required to perform roadside sobriety tests and it is not a crime to refuse to perform the roadside sobriety tests.

Q: What happens if the officer arrests me?
A: If you are arrested, you will be asked to submit to one or more chemical tests (breath, blood and/or urine) to measure your BAC. You can choose whether or not to submit to a chemical test, but you should be aware that, under certain circumstances, refusing the test itself may be a crime. Also, if you refuse to submit to a chemical test, you face the possibility of a longer administrative license suspension (ALS). Further, if you have been convicted of another drunk driving offense within the last 20 years, the mandatory minimum jail sentence may be doubled.

On the other hand, if you submit to a chemical test and test results show you were over the legal limit, you are more likely to be convicted of an OVI than if you refuse to take the test. In most cases, the test results will be used as evidence of your guilt. Also, if you take the test and you have a BAC of more than .17, the mandatory minimum jail sentence will be doubled.

Q: Let’s say I have one prior OVI conviction and refuse to submit to testing. My friend, who also has one prior OVI conviction, submits to a test and has a BAC of at least a .08 but less than .17. Is there a difference in the minimum amount of time each of us might spend in jail?
A: According to Ohio law, if you have been convicted of an OVI offense within the past 20 years, and you refuse to submit to a chemical test, you risk doubling the minimum amount of time you might spend in jail. That “minimum time” you may face depends on how many OVI convictions you have had within the past six years.

If this had been only your first conviction within the past six years, the minimum sentence would have been three days in jail or a 72-hour Driver Intervention Program. Since this is your second conviction within six years, you would normally face a minimum jail sentence of 10 days. However, because you refused testing, you face the possibility of double that time (a minimum of 20 days in jail), whereas your friend, who submitted to testing, would face a minimum of only 10 days.

If this had been your third conviction in six years, you would have faced a minimum jail sentence of 60 days (double the 30 days’ minimum because you refused testing).

Q: I’ve heard that some cities in Ohio are tougher on OVI offenses than others. Is that true?
A: Yes; it is true that the codes of some Ohio municipalities are stricter than the State Code. When that is the case, the municipality’s code takes precedence over the state’s code. For example, the Columbus City Code has what is called a “lifetime lookback” period. This means that, in Columbus, any prior OVI, no matter how many years ago it was, will be considered when deciding penalties.

Source: https://www.ohiobar.org/ForPublic/Resources/LawYouCanUse/Pages/LawYouCanUse-458.aspx
1/17/2014

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by attorney Jon J. Saia, a partner in the Columbus law firm, Saia & Piatt, Inc., and updated by Jessica G. Fallon of the same firm.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

Sexual Assault: Law, Punishments and Penalties - 7/27/2016

Sexual assault crimes are the most abhorred classification of crimes outside of murder. When a criminal defense attorney for a drug dealer is desperate for a plea of leniency, the closing argument will usually consist of, “at least my client is not a sex offender.” Because of high profile child sexual assault cases, the defenses, punishments, and registration requirements have significantly changed over the last several years.

Changes to Defenses to Sexual Assault Crimes

The most significant change in defenses to sexual assaults has been in the area of rape shield laws. Twenty plus years ago, a common defense was the child or woman was promiscuous and her entire sexual history was admissible as evidence of that defense. Under modern rape shield laws, the victim (child or adult) is protected from the embarrassment of his or her history.

Many state statutes now bar promiscuity as a defense, except under very limited circumstances. This limitation frustrates many defendants because they may know of multiple other men that a victim has had consensual sexual relations with, but absent an exception, the evidence is not admissible, even in consent defense cases.

Common Defenses in Adult Sexual Assault Cases

A common defense in adult sexual assault cases is consent. This essentially involves a defendant agreeing that sexual relations occurred, but that they were voluntary. The idea seems simple, until there is an overlap with child sexual assault cases. Many states have deemed that children of certain ages are not able to consent—even if they wanted to. For example, a thirteen-year-old child cannot legally consent to sexual relations in Texas.  If he or she has otherwise consensual sex with a seventeen year-old, the older teen could be charged with sexual assault.

Fortunately, the extreme application of this result has led to more statutory defenses, also known as the “Romeo and Juliet” defense. This defense excuses or minimizes the sexual assault if the defendant can demonstrate that the victim and the defendant were close in age and the conduct was otherwise consensual (i.e. statutory, rather than forced rape).

DNA Defense in Sexual Assault Cases

Even though consent is the most common defense in sexual assault cases, many defendants also benefit from an actual innocence defense using DNA. As compared to years past, more law enforcement agencies are requiring or requesting victims to submit to sexual assault exams to preserve DNA evidence. This means material that is more physical is available to defendants for testing to prove that they did not participate in the alleged sexual assault.

Penalties for Sexual Assault Crimes

If a defendant is found guilty of a sexual assault, the penalties for sexual assault will vary depending on state laws and any aggravating circumstances relating to the assault. As mentioned, because of gruesome headlines involving abductions and child sexual assaults, many states have significantly stiffened the penalties for sexual assault offenses. Florida attempted to lead the charge with one of the toughest child sexual assault punishments by assessing the death penalty for certain types of sexual assaults. The Supreme Court has knocked down death penalty cases, so far, for sexual assault cases that do not result in the death of a victim. However, they have not invalidated stiff or extreme penalties, which include life without parole type sentences.

Sentences for Sexual Assault Crimes

How much time a defendant will actually have to serve in jail will depend on aggravating circumstances. In the “Romeo and Juliet” scenario discussed above, a defendant will have a better chance of getting a deferred or probated sentence because intercourse was not forced and the defendant is younger in age. The younger the child or the higher level of force used will usually result in a higher, or aggravated sentence, which can range from a couple of years in prison, up to a life sentence.

Some states have even enacted minimum required sentences. For example, if you are convicted of the continuous sexual abuse of a child in Texas, the minimum sentence allowed is twenty-five years in prison. If a defendant has previously been convicted of a sexual assault, then the defendant will automatically be assessed a life sentence upon conviction.

Sex Offender Registration for Convicted Sex Offenders

Regardless of how much time a defendant is ordered to serve in prison or on community supervision, most states now require some type of sex offender registration. Like punishment ranges, registration requirements tend to vary in relation to the severity of the crime. Lower level sexual assault offenders generally register for short periods, whereas more violent sex offenders are required to register for life. This is not a requirement that should be taken lightly before making a final decision on your case.

Failure to comply with registration requirements usually result in the filing of new charges. Even if new charges are not filed, registration information is frequently posted on the internet—which makes it incredibly difficult for offenders to hide from their past and apply for certain housing or employment opportunities.

Getting Help

Virtually every state re-evaluates and updates its sexual assault laws every other year. Do not assume that you know the current laws. Even a basic consultation with a criminal defense attorney can help prevent unwelcome lessons with new sexual assault or sex offender registration laws in your state. If you are seeking legal representation, contact our office to schedule a confidential consultation.

Source: http://criminal-law.freeadvice.com/criminal-law/violent_crimes/sexual-assault.htm

Ohio Vehicular Manslaughter Laws - 7/20/2016

In Ohio, the term “vehicular homicide” is often used to generally describe an offense in which someone causes the death of another person with a motor vehicle. Ohio law actually has three separate offenses:

1. Vehicular Manslaughter

2. Vehicular Homicide

3. Aggravated Vehicular Homicide

Unlike a murder charge, a vehicular homicide charge means that a person had no intention of killing another, but due to their actions while operating a vehicle, caused the death of a human being.

Even if a person is charged with a vehicular homicide crime in criminal court and is acquitted, the deceased’s family may file a wrongful death claim in civil court.

The following highlights the main provisions of Ohio’s vehicular homicide laws.

Code Sections     

Vehicular Manslaughter, Vehicular Homicide and Aggravated Vehicular Homicide: Ohio Revised Statute 2903.04

What is Prohibited?     

Vehicular Manslaughter: Causing the death of another person or their unborn child while operating a motor vehicle as the result of a misdemeanor traffic violation.

Vehicular Homicide: While operating a vehicle, you caused the death of another person in one of the following ways: (1) negligently; or (2) as the proximate result of committing a speeding offense in a construction zone.

Aggravated Vehicular Homicide: You caused the death of another person in one of the following ways: (1) as a proximate result of operating a vehicle under the influence of alcohol or drugs; (2) recklessly; or (3) as the proximate result of committing a reckless operation offense in a construction zone.

Penalty      

Vehicular Manslaughter:

Second degree misdemeanor: Up to 90 days in jail and a mandatory driver’s license suspension for six months to three years

Elevated to a first degree misdemeanor, punishable by up to six months in jail, if either of the following apply: (1) driving with no license or suspended license; (2) prior conviction for Vehicular Homicide or any traffic-related homicide, manslaughter, or assault offense.

Vehicular Homicide: (Depends on how the crime occurred)

Negligence: First degree misdemeanor, Up to six months in jail and a mandatory license suspension for one year to five years.

Speeding in a construction zone: First degree misdemeanor, Up to six months in jail (with a minimum mandatory jail sentence of 15 days) and a mandatory license suspension for one year to five years.

Suspended License or prior conviction for Vehicular Homicide or any traffic-related homicide, manslaughter, or assault offense: Fourth degree felony, Up to 18 months in prison and license suspension anywhere from two (2) years to life.

Aggravated Vehicular Homicide: (Depends on how the crime occurred)

Driving Under the Influence: Second degree felony, mandatory prison term of two (2) years to eight (8) years, as well as a mandatory license suspension for life.

Suspended License or prior conviction for Vehicular Homicide or Vehicular Assault: First degree felony, punishable by 11-15 years in prison, possible lifetime driver’s license suspension.

Recklessly Operating a Motor Vehicle: Third degree felony, includes a prison term of one year to five years, mandatory license suspension for three years to life.

Long-Term Consequences of Vehicular Manslaughter

Vehicular manslaughter can also have long-term consequences. The first involves overlap with any related civil suits. A criminal plea only resolves the criminal case; it does not make the civil case go away. Once a defendant enters a plea of guilty in a criminal case, that plea can be used against a defendant in a subsequent civil suit. A judge can award actual damages (like medical bills and vehicle damage) in the criminal case, but cannot award other punitive damages (like pain and suffering or loss of company).

The family of the deceased can pursue a civil suit to recover their own damages or punitive damages. A plea or finding of guilty can also affect whether a defendant’s insurance company will be helpful in their civil defense. Generally, a person’s insurance company is required to help them defend a civil suit when they are involved in car accident. However, some policies have provisions that do not require the insurance company to provide this assistance if the actions that caused the wreck were the result of a felony-level offense.

In addition, as with any criminal conviction, vehicular manslaughter appears as a criminal record during background checks that may be performed by employers or licensing boards. A criminal conviction may cause difficulty finding employment or gaining entry into universities and colleges, and may preclude an individual from practicing in certain professions such as teaching, government work, the medical field, and other employment areas and industries.

Vehicular manslaughter charges are very serious. Although public defenders or state provided criminal attorneys may be provided in some cases, these lawyers tend to have huge caseloads and little time to devote to individual cases. While in some situations a public defender may be sufficient, it is highly recommended that someone facing vehicular manslaughter or vehicular homicide charges consult with a criminal lawyer who has ample time to devote to the case. If you are seeking legal representation, contact our office to set up a confidential consultation.

Source: http://statelaws.findlaw.com/ohio-law/ohio-vehicular-manslaughter-laws.html

Understanding a DUI Driver’s License Suspension - 7/13/2016

For a DUI arrest, or for refusing to submit to a blood alcohol test, you are punished before trial by an immediate administrative driver’s license suspension. If you are arrested for a DUI, you should consult a DUI attorney as soon as possible to understand the various consequences it can have on your driver’s license and how to alleviate the impact of a DUI license suspension.

DUI License Suspension

How and when your license is suspended for a DUI arrest will depend on the DUI laws in your state. While many states will suspend your driver’s license when you are just arrested for a DUI offense, some states will hold off suspending your license until your second or third DUI arrest. Other states do not issue a driver’s license suspension for the DUI arrest itself, but rather how you act during the offense. For example, if you refuse to give evidence against yourself in the form of field sobriety tests or breath tests, some states like Ohio will suspend your driver’s license for the refusal instead of the DUI arrest.

In addition to a post-arrest driver’s license suspension, many states will also suspend your license a second time if you are eventually convicted of or plead guilty to your DUI charge. Most states make post-conviction or post-arrest driver’s license suspensions automatic. Regardless of how sympathetic the judge is to your situation, he or she may have no choice but to order a DUI license suspension.

Out-of-State Driver’s License Laws

If you are arrested outside of your home state for drunk driving, your driver’s license suspension will probably follow you back to your home state. Many states have adopted or agreed to the Interstate Driver’s License Compact. This means they will honor another state’s DUI license suspension laws, even though you did not commit the DUI offense in your home state. If your license is suspended under the Interstate Driver’s License Compact, you may have appeal remedies set out in your state’s laws. Your home state may offer you more appeal rights than the state that is seeking to suspend your license. In these cases, you will probably need two attorneys to help with your DUI arrest. You will need an attorney licensed in your home state to help you appeal the suspension of your driver’s license; and a second attorney licensed in the state where your DUI arrests took place to help you defend the actual allegations of driving while intoxicated.

Getting Your Driver’s License Back after a DUI License Suspension

If your driver’s license is suspended because of a post-conviction or post-arrest DUI charge, you may still be able to get your driving privileges reinstated. You can petition the court in a separate civil proceeding to grant you a hardship license or occupational driver’s license. Basically, you are requesting the court to allow you to drive while your case is pending under limited circumstances. For example, if your work hours are 9:00 AM to 3:00 PM, the court will allow you to drive for a short period before and after your usual work hours in order to maintain your employment.

Other circumstances or situations may also qualify. These situations could include taking your kids to school, seeking medical attention, and being a caregiver to a family member who is disabled. This process begins with the filing of a petition and paying a fee to the clerk of the court. Filing the petition alone will not get your driving rights restored, you must request a hearing and provide the prosecutor notice of the hearing. At the hearing, you have the burden of proving that you should be granted a hardship or occupational license, this will involve proving that your children, medical needs or employment, or other circumstance, require that you drive.

Driver’s License Suspension and DUI Arrests

If your driver’s license suspension is related only to a DUI arrest, not a conviction, you may also be able to file an administrative appeal, since most states treat the suspension as an administrative procedure. When you receive notice of your driver’s license suspension, most notices will come with an explanation of how to appeal your suspension. Similar to the request for an occupational license, you file a petition with the court or agency that handles administrative appeals in your jurisdiction. The focus at this hearing is on whether or not the officer that arrested you for the DUI had the authority or evidence to do so.

If the administrative judge finds that the officer conducted an illegal stop, for example, the administrative judge can rule in your favor and reinstate your driver’s license. Do not confuse this administrative hearing with a hearing on the merits of your DUI charge. That part comes later. Even if an administrative judge rules in your favor, the criminal court judge may not be so lenient and is not usually required to accept the administrative judge’s findings or decisions.

The remedies for a driver’s license suspension discussed above are for post-arrest or post-conviction DUIs. Keep in mind that a judge may also impose bond conditions that restrict your driving privileges. This is separate from a driver’s license suspension because your license is not suspended. The court is simply telling you that if you drive, it will revoke your bond and throw you back in jail until your case is resolved.

Steps to Take After Receiving Formal Notice of DUI License Suspension

When you receive a formal notice in the mail that your license has been officially suspended because of a DUI arrest or conviction, keep the document so that you can access it later for contact information. The notice of your DUI license suspension will provide information and deadlines regarding the appeal process that you should follow closely. If your appeal is not successful, at some point your suspension will end. However, most states will require you to take steps to get your driver’s license reinstated. Some states will require you to contact the department of public safety and pay a reinstatement fee; until this fee is paid, your license will continue to be suspended.

Getting Legal Help with DUI License Suspension

A suspended driver’s license can affect your ability to get to work or take care of your children, and is generally inconvenient. When facing a DUI license suspension you will undoubtedly want to get the privileges reinstated as soon as possible, but be careful to proceed only under advice of legal counsel. If you attend an appeal hearing without proper representation, you may accidentally make statements or admissions that can and will be used against you later at your DUI trial. If you are arrested for a DUI, consult with an experienced DUI attorney that can handle the criminal issues related to your DUI arrest, as well as any issues related to your driver’s license suspension. If you are seeking legal counsel, contact our office to set up a confidential consultation.

Source: http://criminal-law.freeadvice.com/criminal-law/drunk_driving/dui-and-drivers-license.htm

First Degree Arson - 7/6/2016

*Due to the 4th of July holiday, we thought it would be wise to highlight a popular charge that occurs around this time of year. Take a look at this week’s featured article for some informative reading.

First Degree Arson

First degree arson is the highest level of arson. The basic definition of arson is the starting of a fire or explosion with an intent to destroy or damage something. The intent or result of the arson will determine the degree of arson charged to a defendant. Read further to understand how first degree arson is charged, possible defenses, and the potential consequences.

First degree arson is considered the most egregious form of arson. Some states will also call the this aggravated arson or arson in the first degree. The first element of a first degree arson charge is a basic arson allegation. Most states require proof that a defendant intentionally or knowingly set a fire or caused an explosion that resulted in a fire.

The second component is proof of some aggravating circumstance. The aggravating factors that provoke a first degree charge vary by state. However, a defendant is usually charged with first degree arson when the overall intent or result is particularly harmful. The intent element is in addition to the general intent requirement for a basic arson charge.

Aggravating Circumstances

If a defendant’s motivation for committing the offense is malicious, this intent will result in a first degree charge. Examples of malicious purposes include, setting a fire to obtain insurance settlement, to terrorize the occupant of a building, or with intent to harm another person or property. The malicious or illegal intent is usually inferred from the surrounding circumstances. Factors that courts have approved for developing this intent include showing that a defendant was in financial stress or had made prior threats of arson. The intent component frustrates many defendants because they feel that circumstantial evidence of intent should not be allowed. This is, however, the most common and accepted type of evidence used to develop intent.

The next key aggravating circumstance is the result, or potential result, of the arson. Regardless of the malicious intent, or lack thereof, many states will charge a defendant with first degree arson when a fire or explosion results in death or serious bodily injury to another person. South Carolina, for example, will aggravate an arson charge when another person dies as a result of the arson. Texas and Oregon, however, will aggravate to first degree when a defendant places another person in danger of death or serious bodily injury. The main focus of these arson statutes is the risk of harm to others.

Another aggravating circumstance is the property destroyed as a result of the arson. A few states will enhance an arson allegation to first degree if the property destroyed or threatened is a habitation, place of worship, or business. However, most states will categorize property-based arson as second degree arson. While somewhat frustrating, understanding how a charge is elevated to first degree arson is extremely important to develop an effective defensive theory or strategy.

Potential Defenses

A defendant charged with arson based on a malicious intent may need to negate two different intents: the intent to set the fire and the intent to cause some harm. Some defendants choose to attack a first degree felony charge outright and claim innocence. When fire investigation techniques were less sophisticated, contesting causation was easier. However, with the advent of more extensive techniques and cameras in every major shopping center, many Fire Marshalls have been able to present a higher quality of evidence to show an intent to cause a fire or explosion. As a result, many defendants shift their defensive focus to negating the second malicious intent.

To pursue this defense approach, a defendant admits that he started the fire, but argues or presents evidence that any harm or potential harm was unintentional. More and more cities ban firecrackers during Fourth of July celebrations because of the number of people that accidentally set nearby houses on fire with bottle rockets. If this type of defendant lived in a “malicious intent” state, he or she could admit to starting the fire or explosion, but focus on showing that the result was purely accidental. This defense would not work in a state where destruction of a home is an aggravating circumstance by itself, even absent any other malicious intent evidence.

For the states in which the result or potential harm is the factor that provokes a first degree charge, a defendant can focus on demonstrating the accidental nature of the fire, and thus negating the requisite intent. They can also contest the harm or potential harm to another. For example, if a defendant accidentally sets fire to a trailer house in an isolated area, they could argue that no one was at risk of being injured.

Some defensive theories are state-specific. For example, Arizona permits a defendant to raise voluntary intoxication as a defense because arson is a specific intent crime. Texas, however, does not authorize voluntary intoxication as a defense, but will permit a defendant to show that he had a permit to start the fire as a defense to prosecution. Even if a defensive theory does not result in a complete dismissal, the development of a defensive theory can result in a lower arson charge.

Consequences of Conviction

The first major consequence of an aggravated arson conviction is the potential for jail time. Like defenses, the range of punishment for first degree arson varies by state. Next to murder, however, first degree arson is usually listed as one of the most serious offenses. A defendant in South Carolina can face a fifty-year sentence. A defendant in Texas faces five to ninety-nine years or life in prison. Because first degree arson is generally considered a crime of violence, a defendant convicted of arson also faces stiffer parole laws or rules. Many states require sentences for offenses that arise out of the same transaction run concurrently, or at the same time. A few states, however, make arson an exception to this rule and authorize stacking or consecutive sentencing, which can significantly increase a defendant’s time in prison.

If a defendant can show that the arson was not motivated for a violent purpose and no one was actually hurt, he or she may be able to qualify for probation. The probation conditions for a first degree charge can be intensive and are tailored to address a defendant’s motivation for setting the fire. For example, if money was the motivator, the defendant can be required to complete life skills or financial management classes. A defendant whose motivation is based on a mental condition can be required to attend counseling and complete any court ordered mental health programs. If a defendant can successfully negate the aggravating component of a first degree arson allegation, then he may be found guilty of a lesser included arson charge. A lesser charge means an even lighter punishment ranging from two to twenty years.

After a person is convicted of first degree arson, the charge is usually available for enhancement, should the defendant reoffend. Some states have very specific enhancement provisions for prior crimes of violence. This means that a defendant can face an even larger amount of time if he reoffends.

The secondary consequence of a first degree arson conviction is limited employment. While not quite as bad as a sex offender condition, for example, a first degree arson charge can limit employment opportunities because the insurance company for the employer views the defendant as a safety risk. Higher risk means a higher premium for the employer.

Legal Representation

First Degree Arson is a serious offense and should not be handled lightly. Like most serious charges, legal representation is highly recommended. If you or someone you know is looking for representation, contact this office to set up a confidential consultation. We’re here to help!

Source: http://criminal-law.freeadvice.com/criminal-law/violent_crimes/first-degree-arson.htm

FIRST OVI/DUI: What You Should Know - 6/8/2016

Although most states categorize a first DUI offense as a misdemeanor, do not underestimate the serious consequences of your first DUI arrest or conviction. When you are charged with your first DUI, you need to understand the mandatory sentence and punishments associated, the nature of a DUI charge, and the long-term consequences of a DUI conviction.

Consequences of a First DUI Offense

Whenever someone picks up their first DUI, they immediately think they will get probation because it’s a first DUI offense. Most first time DUI offenders do get placed on some type of probation, however, the court can still order you to serve time in county jail as a condition of your probation. Even for misdemeanor offenses, you may be required to serve some jail time, depending on the laws in your state. In addition to mandatory jail sentences, virtually every state will suspend your license for a period of time, even for your first DUI offense.

Depending on your history, you may be able to apply for an occupational driver’s license or a hardship license so that you can still drive to work and school. Conditions of probation for a DUI charge usually include a substantial fine, court costs, probation fees, and urinalysis fees. Your total monthly payment can easily equal a small car payment. You will also be required to attend and complete drug and alcohol counseling and community service hours.

Punishment for a First DUI

Generally, your first DUI charge will be considered a misdemeanor offense, and you will be punished with fines, community service, license suspension, and possible probation. However, other factors can change the level or nature of your charge resulting in enhanced sentences or penalties. For example, if you have an open container in your vehicle, you may still be charged with a misdemeanor, but your fine or mandatory jail sentence could be increased. If a child was present in the vehicle while you were driving, some states will elevate your misdemeanor charge to a felony offense, even if you have never had a prior drunk driving conviction.

In addition to the criminal nature of a DUI, every DUI has an administrative element that can be just as painful as the charge itself. For example, before you are ever convicted, some states will automatically suspend your license if you refuse to provide a breath test. This license suspension is a separate suspension from the one that comes after a DUI conviction.

How a First Time DUI Changes Employment and Auto Insurance

Even a first time DUI can affect your employment and your auto insurance policy. Because a DUI conviction is part of your criminal history, many employers will run criminal histories and know about your conviction. Some employers will not employ individuals with DUI’s on their records because they view you as a safety risk or their insurance rates could potentially increase.

Because you are now a risk factor, you can also expect your auto insurance rates to go up as well. If you were in a wreck because of your DUI, and your offense is somehow elevated to a felony, your insurance company may not cover to the costs of your accident.  Many insurance policies exclude coverage for damages that arise from the commission of a felony, including drunk driving offenses.

Getting Help from a DUI Attorney

Even your first DUI arrest can have a significant effect on your criminal history, your finances, and your employment opportunities. Do not take the charge lightly, just because it’s your first DUI arrest. Act quickly to visit with a DUI attorney who can help you get in front of many of the issues associated with your DUI charge. If you are seeking representation for your DUI/OVI, contact our office and request a confidential consultation.

SOURCE: http://criminal-law.freeadvice.com/criminal-law/drunk_driving/first-dui.htm