Potter Law Blog

What to Do When Facing a Bench Warrant? - 6/1/2016

A bench warrant is an arrest warrant that is ordered by a judge against the defendant in a criminal case or a similar proceeding such as for a traffic ticket. A bench warrant is typically issued in the case of a failure to appear for trial, sometimes abbreviated “FTA.” The “bench” is the traditional term for the judge’s seat.

In serious criminal cases, a failure to appear will most likely lead to a “regular” arrest warrant, which would spur immediate attempts to find and jail the defendant. A bench warrant, on the other hand, usually does not mean the police will be at your door the next morning. But, your name will go into a statewide computer system that serves the entire law enforcement community. Once your name is in the database, if you have to deal with the police for any reason – even resulting from an incident that was not your fault, such as someone hitting your car from behind – you will be taken into custody for the outstanding bench warrant.

Once you are taken into custody, you will have to post bail before you can be released. Typically, bail on a bench warrant for failure to appear will be enough to cover the fines and court costs for both the original offense and the FTA. Then, you’ll get a new court date.

If you know that there is a bench warrant out for your arrest, you can usually call either the clerk of the court or the local police department and arrange to come in and pay the bail so that the warrant will be recalled. You should find out, when you call, what kinds of payments they will accept, since a paper check is almost always not good enough, and not all localities are able to take credit cards.

If you had posted bail before the missed court date, that money has almost certainly been forfeited at this point. If you had a very good reason why you weren’t at the court on time and didn’t call, you might be able to persuade the judge into letting you get that bail back, or at least having it credited against your fines and costs. Naturally, having an experienced criminal lawyer arguing on your behalf during this process will show the judge not only that you take the charges against you seriously, but also that you are genuinely contrite about your failure to appear.

If you are seeking representation for your criminal case or for a failure to appear, contact our office and we will be happy to assist you with your case.

Source: http://criminal-law.freeadvice.com/criminal-law/arrests_and_searches/what-to-do-when-served-bench-warrant.htm

 

What is Aggravated Assault? - 5/25/2016

Aggravated assault is an attempt to cause serious bodily injury to another or to cause serious bodily injury purposely, knowingly or recklessly, with an extreme indifference to the value of human life. Aggravated assault also occurs when a person attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon. In all jurisdictions, statutes punish aggravated assaults, such as assault with the intent to murder, rob, kill, or rape, as well as assault with a dangerous or deadly weapon, more severely than simple assaults.

Aggravated vs. Simple Assault

As opposed to aggravated assault, a simple assault (also just assault) is any willful attempt or threat to inflict injury upon the person of another. What this means is, an assault may be committed without actually touching, striking, or doing bodily harm to the person of another. An intentional display of force that would give the other person reason to fear or expect bodily harm constitutes assault. For example, if an individual threatens another while holding up his or her fist, this is probably a simple assault. However, if the assailant has a deadly weapon while threatening injury upon another, this would most likely elevate the charge to aggravated assault.

Deadly weapons are weapons that may be used to cause a serious or fatal injury. Deadly weapons include guns and knives, but can also include other instruments that, under normal circumstances, wouldn’t be considered deadly weapons. For example, suppose an assailant threatens an individual with bodily harm while holding a butter knife to their neck. While a butter knife is not normally considered to be a deadly weapon, a jury could find that it was being used as one under these circumstances.

A simple assault can also rise to the level of an aggravated assault charge depending on the identity of the victim. Some states will prosecute any type of assault on an on-duty police officer or firefighter as an aggravated assault. Some states will even elevate the assault charges when the victim is pregnant. Generally, the assailant must have known, or should have reasonably known, of the victim’s status. Whether the assailant knew or not can be shown by either the uniform, appearance, or the conduct of the victim.

Degrees of Aggravated Assault

The definitions of the different degrees of aggravated assault vary according to state laws. In general, however, first degree aggravated assault occurs when the act is committed with deliberately premeditated malice aforethought. This means there must be either an intentional attempt to commit serious bodily injury or intentional serious bodily injury must have been committed.

Second degree aggravated assault occurs when the act is committed without deliberation or premeditation. However, the mental state of “reckless indifference” can elevate a lesser charge to a second degree charge, as can a protected status of a victim, such as a police officer. Lesser offenses include third degree aggravated assault and fourth degree aggravated assault. These charges are usually brought if the assailant attempts to commit significant bodily harm, rather than serious bodily harm. Lesser offenses are usually seen in fist fights and other similar situations, but the penalties for committing these offenses are still high.

Aggravated Assault Defenses

Aggravated assault defenses vary by jurisdiction. However, there are several common defenses that may apply to all levels of assault. Consent, prevention of crime, and official acts are some examples of common aggravated assault defenses. Consent essentially means that the victim consented to the risk of harm. When there is consent, the victim can be prohibited from bringing an action when an assault occurs. Consent may be a defense in cases of horseplay, games (boxing, wrestling, martial arts), surgery, and even getting a tattoo or a piercing.

The defense of prevention of crime is used when the assailant was acting to protect himself in self-defense or was acting to protect others, which is called defense of others. The prevention of a crime can also mean the defense of property. Self-defense or the defense of others can be used when the assailant can show that the reason for committing the assault was based on a reasonable fear for their own safety or the safety of another.

Defense of property occurs when the assailant commits an assault to protect their property from an individual. In these cases, courts will generally allow the use of reasonable force to protect one’s own property from theft or damage. A defense based on an official act is most commonly used in cases where forceful arrests are made.

Penalties for Aggravated Assault

Aggravated assault penalties depend on the degree and any injuries that may have occurred. Penalties also depend on the state where the assault took place. Aggravated assault charges can be treated as misdemeanors in some states, while other states will treat this charge as a felony. For example, in some states average fines and jail time for an aggravated assault conviction range from $150-$500 and from four months to one year in county jail, while in others, fines and jail time average $10,000 and up to 15 years in prison.

Because penalties for this type of crime depend on both the degree of assault and the state in which the assault was committed, an individual should always talk to a lawyer to determine accurate penalties for his or her case. Possible penalties for aggravated assault include jail time, probation and electronic monitoring, fines and court costs, parole, mandatory anger management classes, restitution for the victim, and/or loss of the right to own or possess a firearm or weapon.

Aggravated Assault Convictions

A conviction of an aggravated assault charge can have serious consequences on your life, especially if it is treated as a felony conviction. Many places of employment will not hire convicted felons, and if you already hold a professional license, you may not be able to get it renewed with a sustained felony conviction. A felon can also lose basic rights for a number of years, such as the right to vote, serve on a jury, or own a firearm.

In states that have “three-strikes” laws, such as California, a felony aggravated assault conviction can also count as a “strike.” This means that if you already have two other felony convictions, or are convicted with other felonies in the same trial, a third strike for aggravated assault can put you in prison for life.

If you have been charged with aggravated assault, you will need a criminal defense attorney to advocate on your behalf. A criminal defense attorney can explain the legal details of the charges against you, the consequences, and whatever options you may have for a defense. If you are seeking representation or a consultation, please contact us now.

http://criminal-law.freeadvice.com/criminal-law/violent_crimes/aggravated_assault.htm

Drug Trafficking in Ohio - 5/18/2016

Drug Trafficking Laws

When an Ohio drug charge goes beyond a simple possession, you absolutely must have a top drug defense lawyer to defend you from the tremendous legal consequences and potential for significant jail time if convicted. If this is a first offense drug charge, and you’ve never faced a felony offense like drug trafficking, you may be completely unaware of the ways of the Ohio criminal courts. This uncertain time can be extraordinarily difficult and stressful. It is at this time that you need a serious, tough, and experienced defense lawyer working for you, and only for you.

Drug laws in Ohio are very complex and quite confusing. From the multiple ways of categorizing controlled substances, to the method of measurements used, it seems as if all laws related to controlled substances are written with attorneys in mind. Here’s where we can help you sort through the problem, and examine your best options.

Perhaps you have been wrongly accused of a serious drug crime or maybe you admit your guilt but are unsure of how to move forward and still get a somewhat positive outcome in court.

We have handled many serious drug cases in the Ohio court system. We know the harsh sentences and extensive prison times you may be facing and we know how they affect you. Call us to discuss the specifics of your case today and we can help explain your options in a way that you will appreciate. There is no obligation for our free legal consultation. You’ll learn what you are realistically facing, and what your options are in challenging the prosecution.

But act quickly, since many of the best defense strategies work only in the early stages of a case. Their may be limits on the time available to suppress evidence against you, file discovery motions to determine exactly what the state has to work with in a drug trafficking prosecution, and determine the best ways to combat their case against you.

So don’t wait.. call us, and call several attorneys, honestly, to find out who is best prepared to fight your case and get you the best outcome possible.

What is Drug Trafficking Under Ohio Drug Laws?

Drug trafficking is an offense that encompasses a wide variety of controlled substance violations including, selling, intent to sell, distributing, manufacturing, cultivating,and more.

The law says drug trafficking includes:

  • Selling or offering to sell a controlled substance, or
  • Preparing a controlled substance for shipment, delivery, transport, or distribution.

The charges that you face when suspected of drug trafficking can range from a misdemeanor in cases involving small amounts of marijuana, to a 1st degree felony in cases of aggravated trafficking involving a large amount of a Schedule I substance or having taken place on school grounds.

The penalty ranges are significant, and vary wildly depending on the specific controlled substance, the amount, circumstances, prior offenses, and more. Please contact us for details, and we’ll be able to go over specifics as they apply to your case.

Ref: ORC 2925.03

Drug Classifications of Controlled Substances

The Federal government classifies drugs by “schedule”. This classification system is used to determine the seriousness of your offense and the potential sentence you may be facing. Ohio adopted these schedules and made slight adjustments under state law.

Schedule I drugs include those that are the most dangerous and have a high risk of addiction or dependency and no legitimate medical use. Drugs included under this heading include LSD, marijuana, heroin, GHB, and ecstasy.

Schedule II substances still have a high risk of abuse but may have legitimate medical uses. These include things like opium, cocaine, methadone, methamphetamines, and amphetamines.

Schedule III drugs are slightly less dangerous than Schedule II substances, but still have a moderate risk of abuse. Schedule III substances include hydrocodone, codeine, anabolic steroids, testosterone, ketamine, and some depressants.

Schedule IV drugs have a slight risk of dependency and have very acceptable medical uses. Some Schedule IV drugs are clonazepam, some tranquilizers, and sedatives.

Schedule V substances have a very low risk of dependency and include things like over the counter medication with Codeine.

Ref: ORC2925.11

There is a chance, depending on the specifics of your offense that you could be facing federal prosecution as well.

Ohio drug laws are extremely complex and you should always consult with an attorney about the specifics of your situation.

When facing trafficking or serious drug charges in Ohio, you must not hesitate to contact an experienced attorney about your case. We want to hear from you. Once we know the specifics of your case we can discuss what options may be available to you and let you know the reality of the charges you are facing. Call us today.

http://www.myohiodefenselawyer.com/criminal-charges/drug-trafficking/

Questions about OVI/DUI’s - 5/11/2016

WHY WAS I CHARGED WITH AN 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 check for everyday in thousands of individuals and the HGN is usually administered by someone with much more schooling than a police officer – their 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 Stops 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/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.

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.

SINCE I TOOK THE BREATH TEST, IS IT POSSIBLE TO FIGHT MY OVI/DUI?

Absolutely!  However, not every attorney that is listed in the phone book under the DUI/OVI listing is competent to fight these cases.  As a matter of fact, many of the attorneys that list DUI/OVI cases in their Yellow Pages advertisement have never done a DUI/OVI trial.  Do you want someone representing you who has never had a trial? Do you want someone representing you who only knows how to say “GUILTY” or “No Contest?”

Breath test cases are not easy to fight and they generally require the attorney to have a knowledge of the instrument that you blew into, familiarity with the Ohio Department of Health regulations that regulate the maintenance and use of the breath testing instrument, human anatomy and physiology and general trial skills.  Additionally, fighting an OVI/DUI with a blood, breath or urine result over 0.08 can be very time consuming and expensive.

When choosing your OVI/DUI attorney, make sure you ask them if they have ever done a DUI/OVI trial with a blood, breath or urine test admitted into evidence. If you are looking for an attorney to represent you in your OV/DUI case, contact Skip Potter for a consultation.

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

BIGGEST COP MISTAKES - 5/4/2016

Police officers are not infallible. In fact, case records are filled with countless examples of officers who cut corners, make rash decisions, and commit oversights which violate citizen rights. There are many potential mistakes that a police officer can make:

BIGGEST COP MISTAKES:

1. Stopping a vehicle on the basis of an anonymous call. An officer must have a reasonable belief that the anonymous call is accurate.

2. Following a driver into his residence without an invitation or without enough information to justify the entry. Your home is protected under the fourth amendment.

3. Attempting to base a conviction on statements of a person who is not in court. These constitute hearsay statements and are not admissible.

4. Detaining a driver longer than it is reasonable to investigate. The constitution does not allow officers to hold you without limit.

5. Stopping a vehicle without an articulable suspicion. An officer can not stop you just because he thinks you are suspicious.

6. Stopping a vehicle because it stops in the middle of the street or it is driving too slow. Unless there is a specific traffic ordinance you are violating, such as impeding traffic, it is not lawful for an officer to stop you.

7. Stopping a vehicle for an improper sign. Street signs and lane markings must comply with the Manual for Uniform Traffic Control Devices.

8. Failing to follow the rules of the Department of Health and Intoxilyzer operation manual. These failures may invalidate any alcohol testing.

9. Stopping at an improper roadblock. There are guidelines that must be followed to validate the stop.

10. Stopping a vehicle just to check the driver’s license and registration. There must be an actual traffic violation or an articulable suspicion of a crime.

11. Stopping a vehicle without being able to identify it as the one actually commiting a traffic infraction. Officers must be able to convince the Court that they stopped
the right car.

12. Stopping a vehicle for no reason at all. It’s done. Officers usually do not show up in Court on these.

13. Blocking a vehicle’s exit without justification. Officers may not restrict a driver’s freedom to leave without a reason.

SOURCE: http://www.serious-ohio-dui-defense.com/ohio-dui-police-mistakes.htm

Top 5 Common DUI/OVI Mistakes - 4/27/2016

The 5 Biggest Mistakes People Make After Being Arrested for Drunk Driving:

If you, or someone you know, are charged with drunk or drugged driving, you should know the 5 biggest mistakes people make.  Every one of these is a big mistake that can form a vital link between you and a conviction.

Mistake No. 1: I blew over the limit. I might as well plead guilty.

People incorrectly believe that “because I blew over the limit (or my blood tested over the limit), I can’t win so I might as well plead guilty and get it over with.”

This leads the list because it makes a lot of sense.  OVI sounds like a very cut-and-dried case.  If you are over 0.08% you are going to be found guilty, right?  Wrong.  Depending on the situation, the test might be inadmissible.  If it is inadmissible it cannot be used against you.  If it cannot be used against you then, for criminal law purposes, it is like it never happened.

More good news – there are a variety of ways in which a test can become inadmissible:

  • When you are pulled-over, if the officer did not have the appropriate grounds upon which to stop you, all the evidence collected after the stop, including the test, is excluded.
  • If, once you are stopped, the officer asked you take a field sobriety test without the proper grounds for doing so, this may render the field test and subsequent chemical test will be inadmissible.
  •  If the officer did not administer the field test properly, this may invalidate the field test which would likely render the subsequent chemical test inadmissible.
  • If the officer administered the field test properly, but improperly concluded that you failed, and a “dashcam” video or other evidence proves you passed, the subsequent chemical test will likely be inadmissible.
  •  If the officer did not administer a field test, but arrested you based on other evidence that you were “impaired” but the “dashcam” footage or other information reveals that the other evidence was insufficient to form probable cause, the chemical test will be inadmissible.
  • Even if the officer did everything properly at the scene but the chemical test itself was improperly administered, the test result will be unreliable and hence inadmissible.
  • If the chemical test was properly administered, but the test equipment was not properly maintained and calibrated, the test will be unreliable and hence inadmissible.

This is not an exclusive list.  Each case, even OVI cases, have unique facts and for this reason, there are literally an endless supply of reasons why the chemical test in your (or your friend’s case) may not be considered as evidence.  A good lawyer can investigate your case and determine if you have a good argument that the test in your case should not be used against you.

Mistake No. 2: DUI Attorneys are all the same.

“I’ll just hire someone cheap or get my family attorney to handle it.  DUI Defense Attorneys are all the same right?  And DUI cases are pretty easy, right?”

First, attorneys are not all the same.  We probably do not help this particular stereotype by dressing in the same boring suit, but underneath the suit we are as different in skill, expertise, and experience as anyone else in any other profession.  This leads to the next point, DUI cases are relatively short cases but that does not mean that they are easy or that any lawyer can do them well.  A doctor might be a great brain surgeon but you would not go to him if you needed knee surgery.  Sure, they’re both medicine.  They’re even both surgery.  And yes, the brain surgeon knows about operating on brains, which are much more complicated than knees.  But just because he knows about brains doesn’t mean he knows about knees.

The truth is, the best way to figure out if a lawyer is good at trying OVI cases is (1) whether he is trained to do them, (2) whether he does them regularly, and (3) how good his results are.  Besides these three factors, a good pick to try an OVI case is an attorney who has specialized training in the administration of the Standardized Field Sobriety Tests (SFSTs) used by nearly all police officers.  You should also consider whether he knows the area of law involved:  Is he aware of the several ways in which a OVI may be charged in Ohio?  Is he aware of the number of ways in which a chemical test may be challenged?  Does he understand the absolute importance of securing video of the encounter to check compliance with the National Highway Traffic Safety Administration’s guidelines for roadside tests?  Also, consider whether he is prepared to address the full range of consequences that come with a DUI:  Will he, for instance, challenge your administrative license suspension while the trial is ongoing?  Will he attempt to secure driving privileges?  Will he ensure your car is returned so you do not face huge impound fees?

For an OVI charge, the best choice is an OVI attorney who makes it his business to know about OVI law and knows how to try OVI cases.

Mistake No. 3:  I have time before the trial. I can wait to get an attorney.

“The trial is not for a while.  I’ll save money and get an attorney just before trial to do the talking for me.”

Once you are convinced that you have found a good attorney, do not wait one instant longer that you need to before hiring that attorney.  Success at trial and good plea deals happen because, more than any other reason, an attorney prepared well and thoroughly.  If you wait to get an attorney, you are crippling your defense.

To properly defend your rights, certain demands (like for a jury trial) should be made at the arraignment, your first court appearance.  At the arraignment, a prepared attorney should also serve a demand for discovery upon the prosecutor.  A diligent attorney will want to review discovery, independently investigate, determine if there are grounds for a suppression motion, and if so, file one and have oral argument regarding it.  An alert attorney may wish to hire an expert to review test results or obtain independent testing.  If  you wait before hiring an attorney, and certainly if you wait until just before trial, none of this will have time to occur.  Many of your rights will have been waived.  Your opportunity to suppress the evidence may have passed.  Moreover, though it is, perhaps common sense, even a great attorney cannot present a competent defense at trial without knowing anything about the case.

Mistake No. 4: I’ll just ask ______________, they’ll know what to do.

Everyone has someone – an uncle, a police officer buddy, a friend who drinks a lot and has about three DUI’s.  Everyone has someone who thinks they know the law and is ready to offer some free advice.  Do not listen.

As science has advanced and the law has changed with it, OVI has become an increasingly complex area in which to litigate.  Advice from anyone other than a lawyer with a significant record of success in OVI cases will almost always be wrong.  Even advice that would have been accurate a few years ago, may now lead one astray.

Proof beyond a reasonable doubt is often defined as proof that you would accept if making one of the most important decisions of your life.  The reason that definition is used is because criminal cases are serious, the outcomes are serious and have life-long consequences.  You should not accept advice on something so important that is not grounded in experience and a deep knowledge of the topic.  How to handle a criminal charge may be one of the most important decisions in your life.  Do not accept advice from anyone other than an experienced professional.

Mistake No. 5: I can talk my way out of it.

“If I just go talk to the prosecutor/police I can probably talk my way out of this.”

If you are accused of an OVI, particularly where no one was injured and no property was damaged,  you may be thinking that this is not such a big deal.  You may also think that you are very persuasive.  You may actually be very persuasive.  But for whatever the reason, many people seem to think that it is a good idea to talk to the police or prosecutor.  They think they can “straighten everything out.”  This never works.

Talking to the police or prosecutor without an attorney present can cause horrendous damage to your case.  In movies people have “off the record” conversations with prosecutors and police and beneficial deals are reached.  In real life, “everything you say can and will be used against you.”  You should not discuss your case, ever, with anyone except the attorney you hire to represent you.

Have you or someone you know been charged with an OVI? If you are looking for representation, don’t wait. Act now! Contact us now to schedule a consultation!

SOURCE: http://www.columbuscriminaldefenseattorney.com/arrested-and-charged-with-duiovi-in-columbus-the-dui-attorneys-at-the-owen-firm-in-columbus-ohio-are-on-your-side/common-mistakes/

Driving on a Suspended License in Ohio - 4/20/2016

Like all states, Ohio may suspend or revoke your license for a variety of reasons. If you drive while your license is suspended or revoked, you could be charged with a crime.

Reasons for Suspension

Your driver’s license may be suspended for certain traffic violations, criminal convictions, and civil matters.

One well-known reason for suspension is a points-based suspension. Ohio operates a point system for determining when drivers’ licenses may be suspended for certain traffic offenses. A certain number of points are assessed to your license for traffic convictions. If you accrue 12 points within a two-year period, your license may be suspended. (Ohio Rev. Code § 4510.037(B).)

Alcohol offenses, including being in physical control of a vehicle while intoxicated, are another common reason. (Ohio Rev. Code § 4511.194(D).)

There are many other reasons your license may be suspended revoked. For example, it may be may be suspended if:

  • you are convicted of reckless operation, or
  • if you default on a child support order. (Ohio Rev. Code § 3123.58, § 4510.15.)

Reinstating your License

Your license may be suspended or revoked for varying periods of time. After your period of suspension or revocation expires, you may have to pay a reinstatement fee, pay other fees, or complete other conditions before you receive a new license.

If your license is suspended, disqualified or canceled for at least 90 days, you may have to pay a $40 reinstatement fee and a $10 service fee. (Ohio Rev. Code § 4507.45.)

In certain cases, your reinstatement fee may be $30. (Ohio Rev. Code § 4510.072(A).)

If your license was suspended for accumulating too many points or operating under the influence, you may have to complete a driving instruction course, take a written examination, and provide proof of vehicle insurance. (Ohio Rev. Code § 4510.038(A).)

Criminal Charges for Driving on a Suspended or Revoked License

You may be charged with a first-degree misdemeanor if you drive while your license is suspended or revoked. (Ohio Rev. Code § 4510.11.) The maximum sentence for a first-degree misdemeanor may involve:

  • 180 days in jail, and
  • a maximum $1,000 fine. (Ohio Rev. Code § 4510.11, § 2929.28(A)(2).)

If your license was suspended because you failed to provide financial responsibility for your vehicle or for nonpayment of a judgment, you may be charged with an unclassified misdemeanor for the first offense. (Ohio Rev. Code § 4510.16(D).) The sentence may not involve jail time, but you may be ordered to complete community service and pay a fine up to $1,000. (Ohio Rev. Code § 4510.16(D).)

If convicted, your license may be suspended for an extended period of time. (Ohio Rev. Code § 4510.11(D).) In some circumstances, your vehicle may be immobilized or your license plates impounded. (Ohio Rev. Code § 4510.11(D).) If you have three or more prior convictions within three years, your vehicle may be forfeited. (Ohio Rev. Code § 510.11(D)(2)(c).)

Legal Help for Charges of Driving on a Suspended License

The fines and possible jail time that come with a conviction for driving on a suspended license are serious consequences. As a result, you may have difficulty keeping employment, staying in school, obtaining or retaining insurance, and generally living your life. The law provides specific penalties for this crime, but your sentence will depend on the circumstances of your case and the attitude toward the crime held by local prosecutors and judges. Consider hiring Skip Potter who is familiar with these charges in your area and will be able to give you individual advice. Contact Skip Potter to schedule a consultation.

Source: http://www.criminaldefenselawyer.com/resources/criminal-defense/crime-penalties/driving-suspended-license-ohio
By: Janet Portman

Diversion Programs - 4/13/2016

Most states have recognized that low-level offenses, particularly those committed by first-time offenders, shouldn’t necessarily trigger the normal criminal-case process. They’ve acknowledged that offenders with minor crimes may not be best served going through the regular court process of a plea and sentence or, in the case of a not-guilty plea, a trial. Counseling, rather than punishment, can often help and deter such people. (For information on a related topic, see Substance Abuse Treatment for Defendants Facing Drug and Other Charges.)

Furthermore, studies show that diversionary programs are much less costly than sending a case through the normal court process. In addition, diversion still gives defendants the opportunity to compensate victims, by means of restitution orders and community service.

How Diversion Works

Diversion is a program that has been created by the state legislature and signed into law. It identifies crimes and offender characteristics that will enable the defendant to enter the program. Under some diversion systems, defendants are “diverted” to counseling early in the proceedings. In some formats, the defendant doesn’t have to enter a guilty or no-contest plea in order to receive diversion. Other systems require that the defendant formally admit guilt, but suspend punishment until the defendant has had the opportunity to complete diversion. (The plea isn’t formally entered into the court system so it can be erased upon successful completion of the program.)

Defendants typically pay for their diversion programs with a fee to the court, treatment center, or both. The cost can sometimes be more than a fine.

Diversion programs can last from six months to a year or more. These programs emphasize counseling, treatment, and behavior modification over punitive measures. Often, participants must agree to attend classes and vocational training, participate in individual or group therapy or counseling, perform community service work, make restitution to any victim, and pay fines.

When participants successfully complete the program, the case returns once and for all to court and is dismissed. If the case is dismissed, the record of the arrest isn’t usually sealed or otherwise destroyed. Defendants may be able take the additional step of seeking to expunge, or seal, the record of the case. (For more information, see Expungement or Sealing of Adult Criminal Records.)

If the defendant doesn’t complete diversion or is discharged from the program for failure to adhere to its terms (or for subsequent criminal behavior), the case returns to court. If the defendant previously entered a guilty or no-contest plea, then the judge can impose a sentence. If the defendant failed and the form of diversion didn’t require her to previously enter such a plea, then she’ll have to enter one, and the case will proceed accordingly.

What Crimes Qualify for Diversion?

When creating a diversionary program, legislators identify the types of offenses that make offenders eligible for it. These offenses are typically minor and non-violent, such as petty theft, personal possession of certain drugs (not possession for sale), and in some states, driving while under the influence of alcohol or drugs. Some states include assaults that involved very minor or no injuries, and some include domestic violence and child abuse or neglect.

Who Qualifies for Diversion?

Most programs limit participation to those who have no prior convictions for the charge they now face. Common requirements for drug diversion in particular includes:

  • no probation revocations for any prior offenses
  • a period of being “clean,” or without convictions, prior to the present case, and
  • no diversions within a specified amount of time.

Talk to a Lawyer

If you’ve been arrested or otherwise face criminal charges, contact Skip Potter for a consultation. A lawyer like Skip Potter is well-versed in local practice and will be able to fully explain the applicable law, including the ins and outs of the relevant diversion system.

SOURCE: By Sara J. Berman
http://www.nolo.com/legal-encyclopedia/diversion-programs.html

Underage Possession & Consumption - 4/8/2016

A minor younger than 21 in Ohio may not buy, share the cost of, possess, consume, handle, or be under the influence of alcohol, with few exceptions (see below). (Ohio Rev. Code Ann. Section 4301.63.) Additionally, a minor younger than 18 may not purchase, order, pay for, possess, or consume any “low-alcohol beverage.” A “low-alcohol beverage” includes any brewed or fermented drink that contains either no, or less than one-half of one percent of alcohol by volume. However, this does not include soft drinks, like root beer or ginger beer. (Ohio Rev. Code Ann. Section 4301.01.)

It is also illegal for anyone to knowingly provide false information about a minor’s or someone else’s name, age (or other identification), in order to obtain alcohol for a minor. (Ohio Rev. Code Ann. Section 4301.633 & 4301.634)

Exceptions to the Rule

Ohio recognizes four exceptions to the rule prohibiting minors from handling, possessing, or consuming alcohol. These exceptions also apply to minors younger than 18 and to “low-alcohol” beverages.

  •  Employment. An establishment licensed to sell alcohol may employ minors older than 18 to handle or sell alcohol, but only in sealed containers for retail or wholesale purposes, such as stocking shelves, bagging, or loading alcohol. These minors may also handle empty open alcohol containers in connection with cleaning or bussing tables. Such licensed establishments may employ minors older than 19 to serve alcohol in open containers in a restaurant, hotel, or club. However, no minor may serve alcohol across a bar. (Ohio Rev. Code Ann. Section 4301.22(3).)
  •  Adult family members. Minors may possess and consume alcohol under the supervision of a parent, adult spouse, or legal guardian. (Ohio Rev. Code Ann. Section 4301.69.)
  •  Physicians. A physician may sell or furnish alcohol (or substances containing alcohol) in the regular course of that physician’s practice. (Ohio Rev. Code Ann. Section 4301.69.)
  •  Religious participation. A minor may possess and consume alcohol for an established religious purpose. (Ohio Rev. Code Ann. Section 4301.69.)

Penalties

Violations of Ohio’s minor in possession laws will be handled through the juvenile court, and may be considered criminal offenses. For first offenses, the judge may delay ruling on the complaint while the minor enrolls in a diversion program. If the minor successfully completes the diversion program, the judge will dismiss the complaint, and order the minor’s record sealed. To learn more about diversion options for a first time offense, see Diversion & First Offender Programs.

Sealing a record means that the complaint will not be public record; however, because minors are eligible to complete a diversion program only for first-time offenses, if there are subsequent charges, court officials may examine the minor’s sealed record to determine whether the minor has already taken advantage of a diversion program.

If the minor fails to complete the program, or for second and subsequent offenses, the judge will hear the case and rule on the complaint, and the minor will be responsible for the applicable fines or other consequences. (Ohio Rev. Code Ann. Section 4301.69(E)(2)(a)&(b).)

Furnishing Alcohol to a Minor or Allowing Possession or Use on Property

It is illegal in Ohio to furnish alcohol to a minor, except under the circumstances described above (see “Exceptions to the Rule”). This includes selling, buying for, or furnishing alcohol while having reason to know that the recipient is a minor. (Ohio Rev. Code Ann. Section 4301.69(A).) This rule applies both to people serving alcohol in licensed establishments, and to people who knowingly allow minors to possess alcohol on their private property (including rental housing). (Ohio Rev. Code Ann. Section 4301.69(B).)

Similarly, it is illegal to rent out a hotel room, or other accommodation (like a cabin or campground spot) knowing that a minor will use the accommodation to consume alcohol.

Minors are also prohibited from trying to gain access to such accommodations by using false identification or other fraudulent means. However, renting or providing accommodations as above is acceptable if the alcohol is given to the minor by the minor’s parent, adult spouse, or legal guardian; and the alcohol is consumed in the presence of that adult. (Ohio Rev. Code Ann. Section 4301.69(C)(1).)

Getting Legal Help

Because local procedures and attitude towards the Ohio minor in possession law vary by community, it is a good idea to consult with a lawyer who is familiar with how these cases are handled . This will give you a better chance of achieving the most favorable outcome under the unique circumstances of your case. Looking for a lawyer? Get the help you need by contacting Skip Potter.

Source: Written by Monica Steiner;
http://www.criminaldefenselawyer.com/resources/criminal-defense/crime-penalties/ohio-minor-possession-alcohol-charges-penalties

A first DUI Ohio (known as OVI in Ohio) - 3/23/2016

A first DUI in Ohio (known as OVI in Ohio), results in both criminal and administrative penalties for adult offenders. Minors and commercial drivers charged with first offense DUI/OVI will face different penalties than those noted.

Administrative Penalties

  • The first time you are arrested and convicted of drunk driving in Ohio, you will receive an Administrative License Suspension (ALS) of 90 days. This ALS suspension is independent of your court ordered suspension that will be from 6 months to 3 years in duration.
  • Ignition interlock devices not required, but in an effort to obtain hardship/occupations driving privilege during suspension period, first offense drivers may be required to utilize an ignition interlock device.
  • Treatment or assessments are not a requirement of reinstatement for first offenders.
  • Reinstatement fee = $475

Criminal Penalties

  • If your blood alcohol concentration (BAC) was between .08%-.17% you may be required to serve a mandatory 72 hours in jail (and can be sentenced up to six months).
  • If BAC above .17, offender faces minimum incarceration period of six (6) days.
  • You will also be ordered to pay a fine between $250 and $1,000 and do not include costs incurred in completing terms of sentence (such as costs of attendance in driver intervention program), nor do they cover costs associated with license reinstatement.
  • Convictions carry over and influence future DUI charges and sentencing for a period of six (6) years in the state of Ohio.

Get Help With Your OVI

If you have been arrested on an OVI charge in Ohio or any other state, get help from an experienced OVI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for an OVI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent OVI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court. Don’t hesitate, contact our office for a consultation! Skip Potter is here to help!

Source: http://dui.drivinglaws.org/resources/ohio-first-offense-ovi-dui.htm 
 Article by Rich Stim