Potter Law Blog

Drug Possession Defenses - 2/17/2016

If you are charged with possession of drugs, either for personal use or with intent to sell, a criminal defense attorney can determine which defenses might apply to your case should you plead not guilty. Different states approach the problem of illicit drugs in different ways, while the federal government tends to have the toughest drug sentencing guidelines. But drug possession defenses are fairly universal across state lines. Some defenses challenge the stated facts, testimony or evidence in the case; others target procedural errors, often search and seizure violations; and some defendants challenge drug possession charges on the basis of an affirmative defense, such as the right to use medical marijuana in some states.

Here are some defenses to drug possession charges, some more common than others:

Unlawful Search and Seizure

The Fourth Amendment to the U.S. Constitution guarantees the right to due process of law, including lawful search and seizure procedures prior to an arrest. Search and seizure issues are quite common in drug possession cases. Illicit drugs found in “plain view,” such as a car’s dashboard after a legal traffic stop, may be seized and used as evidence. But drugs found in the trunk of a car after prying it open with a crowbar, assuming the suspect did not give permission, cannot be entered into evidence. If the defendant’s Fourth Amendment rights were violated, then the drugs cannot be used at trial and the charges typically are dismissed.

Drugs Belong to Someone Else

A common defense to any crime charge is to simply say you didn’t do it. The drug possession equivalent is to claim the drugs aren’t yours or that you had no idea they were in your apartment, for example. A skilled defense attorney will pressure prosecutors to prove that the joint found in the car actually belonged to his or her client and not one of the other three passengers.

Crime Lab Analysis

Just because it looks like cocaine or LSD doesn’t mean it necessarily is. The prosecution must prove that a seized substance is indeed the illicit drug it claims it is by sending the evidence to a crime lab for analysis. The crime lab analyst then must testify at trial in order for the prosecution to make its case.

Missing Drugs

A skilled attorney will make sure prosecutors are able to produce the actual drugs for which their client is being charged. Similar to the need for crime lab analysis, prosecutors who lose or otherwise lack the actual drugs risk having their case dismissed. Seized drugs often get transferred several times before ending up in the evidence locker, so it should never be assumed that the evidence still exists during trial.

Drugs were Planted

This may be difficult to prove, since a police officer’s sworn testimony carries a lot of weight in the courtroom. Furthermore, other officers may be reluctant to blow the whistle on a fellow officer. But your attorney can file a motion that, if approved by the judge, requires the department to release the complaint file of the given officer. This file contains the names and contact of information of those who made the complaints, who can then be interviewed by your attorney or a private investigator.

Entrapment

While law enforcement officials are free to set up sting operations, entrapment occurs when officers or informants induce a suspect to commit a crime he or she otherwise may not have committed. If an informant pressures a suspect into passing drugs to a third party, for example, then this may be considered entrapment. As a rule of thumb, entrapment occurs where the state provides the drugs in question.

Medical Marijuana Exception

The medical use of marijuana is never a defense in federal court but may be in states where medical marijuana has been legalized. States with such exceptions to marijuana laws typically require a doctor’s signed recommendation. But some of those states also provide for an affirmative defense by those arrested on marijuana possession charges who are able to show clear and convincing evidence of medical necessity.

SOURCE: – See more at: http://criminal.findlaw.com/criminal-charges/drug-possession-defenses.html#sthash.kMj9ASiR.dpuf

Drug Possession - 2/11/2016

Drug Possession: Definition

Federal and state drug possession laws make it a crime to willfully possess illegal controlled substances such as marijuana, methamphetamine, cocaine, LSD, “club drugs,” and heroin. These laws also criminalize the possession of “precursor” chemicals used in drug cultivation and manufacturing, as well as certain accessories related to drug use. Drug possession laws vary according to drug type, amount, and geographic area of the offense. Possession of small quantities may be deemed “simple” possession, while possession of large amounts may result in a charge of presumed “possession with intent to distribute.”

Requirements to Prove Possession of Drugs

Possession of certain illicit drugs violates federal and state laws. While drug possession laws vary widely from state to state, the elements of the offense are generally the same. Prosecutors must be able to prove beyond a reasonable doubt that the defendant knew the drug in question was a controlled substance, and that he or she knowingly had possession of, or control over, the drug. This may also include what is known as “constructive possession,” or access to an illegal drug. Such charges may be filed against one or more individuals who have keys to a van filled with narcotics, for example, rather than actually holding the drugs on their person.

Drug possession laws generally fall into one of two main categories: simple possession (for personal use) and possession with intent to distribute. The latter category typically carries much stiffer penalties upon conviction, as compared to simple possession, in the interest of both punishing and deterring drug dealers. To prove possession with intent to sell, prosecutors may present evidence such as digital scales, baggies, large quantities of the drug, large amounts of cash in small bills or testimony from witnesses.

Drug Paraphernalia Included within Possession Crimes

Drug possession laws also prohibit paraphernalia such as syringes, crack pipes or bongs. The Federal Drug Paraphernalia Statute defines what constitutes drug paraphernalia but usually hinges on a determination of primary use. For example, a newly purchased water pipe may not be considered a marijuana bong unless it has drug residue or is sold explicitly as a marijuana bong. Laws also exist to restrict the possession of certain chemicals or materials commonly used in the cultivation or manufacturing of drugs, such as the laboratory equipment used to make methamphetamine.

While some states have legalized possession of marijuana for medical use, and both Colorado and Washington have legalized its recreational use, it is still considered illegal in all cases under federal law.

If you or someone you know has been charged with a possession charge, it is highly recommended to contact a criminal defense attorney. Don’t hesitate, contact Skip Potter now for a consultation.

*Check back next week for more on Drug Possession Defenses.

SOURCE- See more at: http://criminal.findlaw.com/criminal-charges/drug-possession-overview.html#sthash.Ls0cb3oV.dpuf

Ohio Petty Theft and Other Theft Laws - 1/27/2016

Under Ohio law, theft is committed through the unauthorized taking of property, when the offender acts with the intent to permanently deprive the owner of the property. Specifically, Ohio criminal statutes prohibit “knowingly obtaining” or “exerting control” over someone else’s property or services:

  • without the consent of the owner (or a person authorized to give consent)
  • beyond the scope of the express or implied consent of the owner or person authorized to give consent
  • by deception
  • by threat, or
  • by intimidation. (Ohio Rev. Code Ann. § 2913.02.)

Classification of Theft Offenses and Penalties in Ohio

Ohio classifies its theft offenses according to the value of the property or services stolen. Let’s take a closer look at each type of theft offense in Ohio, starting with the lowest level of theft, which is often referred to as “petty theft.”

Misdemeanor of the First Degree Theft

Theft is a misdemeanor of the first degree in Ohio when the value of property or services stolen is less than $1,000.  (Ohio Rev. Code Ann. § 2913.02(B)(2).)

The punishment for a misdemeanor of the first degree in Ohio is a term of imprisonment of not more than 180 days, a fine of not more than $1,000, or both.  (§ 2929.24(A)(1), § 2929.28(A)(2).)

Felony of the Fifth Degree Theft

Theft is a felony of the fifth degree in Ohio when one of the following conditions exists:

  • the value of property or services stolen is more than $1,000, but less than $7,500
  • the property is a credit/debt card, check, or other negotiable instrument
  • the property is a vehicle license plate or temporary placard, a blank vehicle title form, or a blank form for a driver’s license. (§ 2913.02(B)(2), § 2913.71.)

The punishment for a felony of the fifth degree in Ohio includes a prison term ranging from six to 12 months and a fine of not more than $2,500. (§ 2929.14(A), § 2929.18(A)(3).)

Felony of the Fourth Degree Theft or Grand Theft

 When the value of property or services stolen is more than $7,500, but less than $150,000, or the property is a motor vehicle or any dangerous drug, a theft offense in Ohio constitutes grand theft, a felony of the fourth degree. (§ 2913.02(B)(2).)

The punishment for a felony of the fourth degree in Ohio is a prison term ranging from six months to 18 months and a fine of not more than $5,000. (§ 2929.14(A), § 2929.18(A)(3).)

Felony of the Third Degree Theft or Aggravated Theft

When the value of property or services stolen is more than $150,000, but less than $750,000, or the property is a firearm or anhydrous ammonia, a theft offense in Ohio rises to the level of aggravated theft, which is a felony of the third degree. (§ 2913.02(B)(2).)

The punishment for a felony of the third degree in Ohio includes a prison term ranging from one to five years and a fine of not more than $10,000. (§ 2929.14(A), § 2929.18(A)(3).)

Felony of the Second Degree Theft or Aggravated Theft

If the value of property or services stolen is $750,000 or more but less than $1,500,000, a theft offense is aggravated theft in the state of Ohio, which is a felony of the second degree. (§ 2913.02(B)(2).)

The punishment for a felony of the second degree in Ohio is a prison term ranging from two to eight years and a fine of not more than $15,000. (§ 2929.14(A), § 2929.18(A)(3).)

Felony of the First Degree or Aggravated Theft

When the value of property or services stolen is more than $1,500,000, a theft offense in Ohio constitutes aggravated theft as a felony of the first degree. (§ 2913.02(B)(2).)

The punishment for a felony of the first degree in Ohio is a prison term ranging from three to 11 years and a fine of not more than $20,000. (§ 2929.14(A), § 2929.18(A)(3).)

Civil Penalties for Theft in Ohio

In addition to criminal penalties, a person who commits theft in Ohio may be civilly liable to the owner of the property (i.e., the store owner) for financial damages, including:

  • the monetary or retail value of the property stolen
  • other compensatory damages
  • liquidated damages in an amount set by Ohio statute (usually at least $200), and
  •  the reasonable administrative costs associated with bringing the civil suit. (Ohio Rev. Code Ann. § 2307.61.)

An Important Note on Legal Representation

While the information on this page can help you understand how your states legislature treats varying levels of theft offences, the application of those laws can vary by location. Local courts, law enforcement and the district attorney will play a significant role in determining the outcome of a given case. For that reason, it’s important to talk to a local criminal attorney if you’ve been charged with a theft crime or any other crime. If you would like to schedule a consultation or speak with a criminal defense attorney, contact Skip Potter now.

Source: by David Goguen, J.D.
http://www.criminaldefenselawyer.com/resources/criminal-defense/crime-penalties/petty-theft-ohio-penalties-defense

Ohio Misdemeanor Crimes by Class & Sentences - 1/14/2016

The state of Ohio categorizes misdemeanors into five classes: first, second, third, and fourth degree, as well as minor misdemeanors. First-degree misdemeanors are considered the most serious class, while minor misdemeanors are the least serious.

For information about felonies, see Ohio Felony Crimes by Class and Sentences.

Sentence Range for Each Level

Unless a particular Ohio criminal law allows for a specific sentence, each degree of misdemeanor offense has a maximum penalty associated with it.

  • First-degree misdemeanor: up to 180 days in jail
  • Second-degree misdemeanor: up to 90 days in jail
  • Third-degree misdemeanor: up to 60 days in jail
  • Fourth degree misdemeanor: up to 30 days in jail
  • Minor misdemeanor: no jail sentence

In addition to incarceration sentences, a court can also order someone convicted of a misdemeanor to pay a fine.

  • First-degree misdemeanor: up to $1,000 in fines
  • Second-degree misdemeanor: up to $750 in fines
  • Third-degree misdemeanor: up to $500 in fines
  • Fourth degree misdemeanor: up to $250 in fines
  • Minor misdemeanor: up to $150 in fines

Examples of Crimes in Each Level

The following list of misdemeanors in each level is only a small sample of all misdemeanors in Ohio.

First-degree misdemeanor

  • Making or causing false reports of child abuse or neglect
  • Unauthorized use of a vehicle
  • Petty theft
  • Carrying a gun without a permit

Second-degree misdemeanor

  • Abuse of a corpse
  • Obstructing official business
  • Unlawful transaction in weapons

Third-degree misdemeanor

  • Writing, defacing, drawing, or otherwise marking a facility or vehicle of the public transportation system
  • Illegal cultivation of marijuana between 100 and 200 grams
  • Possessing a revoked or suspended concealed handgun license

Fourth degree misdemeanor

  • Selling or donating contaminated blood
  • Disturbing a lawful meeting
  • Failure to disperse

Minor misdemeanor

  • Failure to aid a law enforcement officer
  • Public gaming
  • Disorderly conduct

Find a Lawyer Near You

Even if you are only facing a minor charge, you need to speak to a criminal defense attorney in your area if you are charged with a crime in Ohio. Being convicted of a misdemeanor not only brings with it significant potential penalties, but you may also have difficulty securing future employment, passing a background check, or experience other problems. You need to seek the advice of a lawyer who has represented clients in local Ohio courts and who has experience dealing with area prosecutors and judges. For a free consultation, contact Skip Potter!

Source by Mark Theoharis: http://www.criminaldefenselawyer.com/resources/ohio-misdemeanor-crimes-class-and-sentences.htm

Robbery in Ohio - 1/7/2016

Robbery

When you are accused of a crime like robbery, you stand to lose your freedom and a whole lot more. In addition to carrying severe incarceration penalties, you’ll also face exorbitant fines and the trouble of carrying a label like “convicted felon” for the rest of your life.

While each state has laws against robbery, the specifics of those laws vary greatly. In Ohio, for example, you could be facing some of the more severe penalties when compared with other states.

The outcome of your case, of course, depends on the facts of your case, the evidence against you, your criminal history, and a variety of other factors. But, knowing what you are up against before the gavel falls can help you prepare for the potential outcomes.

Ohio Robbery Laws & Penalties

The crime of robbery is separated by two distinct laws in the Ohio statutes: robbery and aggravated robbery. Within these two distinct laws, more distinctions are made that will determine the exact penalty you might face.

Robbery

The crime of robbery is defined as attempting to commit or committing a theft when you:

1.) Have a deadly weapon under your control,
2.) Inflict harm or threaten to inflict harm on the alleged victim, or
3.) Use force or threaten to use force against the alleged victim.

If you are accused of robbery and it fits the criteria of (a.) having a weapon, or (b.) inflicting or threatening harm, you will face second degree felony charges. A conviction for a second degree felony can carry two (2) to eight (8) years in prison.

If, however, you are accused of robbery and you (c.) use force or threaten to use force, you will face lesser charges of a third degree felony, and the potential one (1) to five (5) year prison sentence it carries.

Aggravated Robbery

More serious than robbery, aggravated robbery is a first degree felony charge and carries three (3) to ten (10) years in prison and fines reaching $20,000.00. You may face this charge if you are accused of doing any of the following in the commission of a theft offense:

1.) Have a deadly weapon and use it, display it, or indicate that you have it;
2.) Have explosives or other “dangerous ordnance” in your possession, or;
3.) Inflict or attempt to inflict serious physical harm on the alleged victim.

Regardless of which robbery charge you are facing, you will likely want to discuss your options with a local criminal defense attorney. Contact Skip Potter so he can assist you with your case today!

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

Disorderly Conduct; Punishment; Part 2 - 12/29/2015

PUNISHMENT

Disorderly conduct is a minor misdemeanor, punishable by a fine of up to $150. Aggravated disorderly conduct or disturbing a lawful meeting is a misdemeanor in the fourth degree, punishable by up to 30 days in jail and a fine of up to $250. Depending on the circumstances, public transit misconduct may be a minor misdemeanor or punishable by as much as 60 days in jail and a fine of up to $500. Misconduct in an emergency is a first degree misdemeanor (punishable by up to 180 days in jail and a fine of up to $1,000) or a fourth degree misdemeanor.

The most serious cases of inducing panic are second degree felonies, punishable by two to eight years in prison and a fine up to $15,000; the least serious cases are misdemeanors of the first degree . False alarm may be anything from a first degree misdemeanor to a third degree felony, punishable by nine months to five years in prison and a fine of up to $10,000.

Inciting violence may be a felony or a misdemeanor, depending on what sort of violent behavior is urged. Participating in a riot is a first degree misdemeanor. Aggravated riot is punishable by six to 18 months in prison and a fine up to $5,000. Aggravated riot in a detention facility is a felony of the third degree. Failure to disperse is a minor misdemeanor, unless it occurs at the scene of an emergency or creates a risk of physical harm, in which case the crime is a misdemeanor of the fourth degree.

(Ohio Rev. Code §§ 2917.01, 2917.02, 2917.03, 2917.04, 2917.11, 2917.12, 2917.13, 2929.24, 2929.28, 2917.31, 2917.32, 2917.41.)

Obtaining Legal Assistance

Depending on the circumstances, disorderly conduct and similar crimes can be very minor or very, very serious. But even if you are only facing minor criminal charges, you should talk to a criminal defense attorney in Ohio. Being convicted of even a misdemeanor can result in fines and jail times, and you could also have difficulty securing future employment or passing a background check. An attorney can tell you what consequences are likely, what to expect in court, based on the charges and the assigned judge and prosecutor, and how to present the strongest possible defense.

If you are in search for an attorney that has your best interest in mind, don’t hesitate, contact Skip Potter now! He will listen to your concerns and will give you a direct response on what your best and worse case scenario is. His ultimate goal is to get you the best result possible. Contact us now to schedule a consultation.

Disorderly Conduct in Ohio; Part 1 - 12/23/2015

Ohio has a number of different laws that prohibit and criminalize a variety of trivial but obnoxious behavior. Examples of disorderly conduct, also called “disturbing the peace,” include making verbal threats, throwing poop, and interrupting meetings. Ohio also has laws against false alarms and rioting. What all of this behavior has in common is that it is likely to upset, anger, bother, frighten, or annoy others.

For more general information on the crime of disorderly conduct, see Disorderly Conduct Laws and Penalties.

DISORDERLY CONDUCT

Under Ohio’s laws, people commit the crime of disorderly conduct when they inconvenience, annoy, or alarm others by:

  • fighting, threatening others with injury or property damage, or engaging in other violent behavior
  • making excessive noise
  • saying anything offensive or abusive, or making an obscene gesture
  • insulting someone when it is likely to provoke a violent response
  • blocking pedestrian or vehicular traffic without good reason, or
  • creating an offensive or dangerous condition without good reason.

For example, urinating on a public street in full view of others could be considered disorderly conduct, as could screaming curse words and generally making a scene in a restaurant after being asked to leave. Disorderly conduct is punished more severely (aggravated) if the defendant continues the conduct after being asked or warned to stop, or if the conduct occurs at or near a school, in an emergency room, or in the presence of a law enforcement officer, a firefighter, medical personnel, or any person responding to an emergency.

DRUNK AND DISORDERLY

People in Ohio also commit the crime of disorderly conduct by, while intoxicated

  • engaging in conduct that risks harm to themselves, others, or other’s property, or
  • in a public place (or in the presence of two or more people), engaging in conduct that is likely to offend, inconvenience, scare, or annoy others.

In contrast, two people that get drunk and pass out in their own home are not guilty of any crime so long as their behavior does not pose a risk to themselves or anyone else. However, a drunken person who climbs up onto the top of a tall sculpture, endangering himself and possibly damaging the sculpture, could be convicted of disorderly conduct.

PUBLIC TRANSIT

It is also a crime in Ohio to do any of the following on a public transit vehicle or in a public transit facility

  • fail to pay a fare
  • alter a ticket or token to avoid paying a fare
  • eat, smoke, drink, or spit
  • play music or sound, or write or draw graffiti, or
  • resist or fail to obey an order from a transit police officer.

OTHER DISRUPTIVE CONDUCT

It is also a crime in Ohio to disrupt a lawful meeting, procession, or gathering by interrupting the proceedings, or making or doing something obscene or offensive. A person who disrupts a school board meeting by mooning people could be arrested for this crime.

(Ohio Rev. Code §§ 2917.11, 2917.12, 2917.41.)

FREE SPEECH

Generally, Ohio courts have held that the First Amendment right to free speech forbids any conviction for disorderly conduct based on abusive speech unless the words are “fighting words” that would provoke a violent response from an average person.

MISCONDUCT IN AN EMERGENCY

A person in Ohio also commits a crime by hampering any official response to an emergency or failing to obey an officer’s order at the scene of a fire, accident, disaster, riot, or emergency. A bystander at the site of a car accident who refuses to move along after being asked to do so by a police officer is guilty of misconduct. The crime is punished more severely if the defendant creates a risk of injury or property damage. (Ohio Rev. Code § 2917.13.)

FALSE ALARM

Under Ohio’s laws, false alarm – reporting a fire, explosion, crime, or other catastrophe that the defendant knows is false – is a crime. It is also a potentially more serious crime (called inducing panic) to cause an evacuation of a public place, or any public panic or inconvenience by falsely reporting a fire, explosion, crime, or other catastrophe; threatening to commit a violent crime, or committing any other crime. Emergency drills, such as fire drills, are permitted. For example, calling in a bomb threat that delays flights and requires police to search the airport could result in a conviction for inducing panic.

False alarm and inducing panic are punished more severely if either crime results in economic harm (including any costs to the government for emergency response or the costs of interrupted business) of $1,000 or more, or involves a claim of weapons of mass destruction. Inducing panic is also punished more severely if anyone is injured, or if a school or university has to be evacuated. (Ohio Rev. Code §§ 2917.31, 2917.32.)

RIOTING AND FAILURE TO DISPERSE 

Inciting (urging) others (by words or actions) to engage in violence is also illegal in Ohio if actual violence results or if there is a “clear and present danger” of actual violence. So, a university professor who dryly advocates for armed revolution would not necessarily violate the law, but if the same professor calls on armed students to engage in a battle with the police during a heated protest, the professor could be arrested. Under Ohio’s laws, a riot is four or more people engaging in any act (even a legal act) by force or violence, or engaging in course of disorderly conduct, in order to

  • commit some crime
  • intimidate a public official or public employee, or
  • interfere with any government, school, or university function.

A person commits the crime of aggravated riot by participating in a course of disorderly conduct with four or more other people, intending to commit a felony or any crime of violence; or when the defendant is armed or knows that another participant is armed and intends to use a deadly weapon. Aggravated riot is punished more severely if it occurs in a detention facility, such as a jail or prison. In order to convict a person of rioting, the prosecutor does not need to prove that there was any express agreement among the participants to riot.

“Reading the riot act”

If a group of five or more people is engaged in disorderly conduct and there are other people nearby, and it is likely that injury, property damage, or public inconvenience could result, police officers may “read the riot act” and order everyone to disperse. Failure to follow an order to disperse is a crime, but police officers cannot require people who are peacefully assembled for a legitimate reason to disperse. So, peaceful picketers outside a factory may not be required to leave, unless they are threatening property damage or injury, being offensive or noisy, or blocking the streets or sidewalks.

(Ohio Rev. Code §§ 2917.01, 2917.02, 2917.03, 2917.031, 2917.04.)

Continued. . .

Check back next week for Part 2; Punishment; Disorderly Conduct

Article by: Ave Mince-Didier; http://www.criminaldefenselawyer.com/resources/disorderly-conduct-ohio.htm

 

 

 

Domestic Violence, Stalking or Sexual Assault : Criminal Domestic Violence - 12/9/2015

What are the criminal penalties for a conviction of domestic violence?

A first conviction of domestic violence for an act of physical violence or attempted physical violence is a misdemeanor of the first degree, punishable by up to six months in jail and/or a $1,000 fine.

A second conviction of domestic violence for an act of physical violence or attempted physical violence is a felony of the fifth degree, punishable by a $2,500 fine and a definite period of incarceration of six, seven, eight, nine, ten, eleven, or twelve months.

As a result of Senate Bill 50, which became law on January 8, 2004, a third conviction of domestic violence for an act of physical violence or attempted physical violence is a felony of the third degree, punishable up to five (5) years in prison and/or a fine of $10,000.

A first conviction of domestic violence for threatening to use physical force against a family household member is a misdemeanor of the fourth degree punishable by up to 30 days in jail and/or a $250 fine.

A second conviction of domestic violence for threatening to use physical force against a family or household member is a misdemeanor of the second degree, punishable by up to 60 days in jail and/or a $500 fine.

As a result of Senate Bill 50, effective January 8, 2004, a third or subsequent conviction for threatening to use physical force against a family or household member is a misdemeanor of the first degree, punishable by up to six (6) months in jail and/or a felony of the third degree, punishable by up to five years in prison and/or a $ 1000 fine.

Can the police arrest both parties—the man and the woman—for domestic violence?

Yes, but Ohio law strongly discourages that practice.

Under Ohio’s preferred arrest law, in cases where law enforcement officers determine that both the man and the woman committed domestic violence, the officer should determine which party is the “primary physical aggressor.” RC 2935.03(B)(3)(b).

Law enforcement officers are not prohibited from arresting both persons who engage in domestic violence against each other, but in most cases the officer should only arrest the primary physical aggressor. In determining which person is the primary physical aggressor, the officer should consider the following factors:

1. Any history of domestic violence or any other violence acts by either person involved in the alleged incident that the officer reasonably can ascertain;

2. Whether one of the persons was acting in self defense;

3. Each person’s fear of physical harm, if any, resulting from the other person’s threatened use of force or actual use or history of use of force against any person, and the reasonableness of that fear; and

4. The comparative severity of any injuries suffered by the persons involved in the incident.

The police officer or sheriff’s deputy is expected to weigh and balance these four factors in determining which person involved in the domestic violence incident is the primary physical aggressor.

No one of the factors is determinative. It is possible that one of the factors might suggest that one person is the primary physical aggressor while one or more of the other factors suggests that the other person is the primary physical aggressor.

For example, the primary physical aggressor may have less severe injuries than the other person because the other person was acting in self-defense because of a reasonable fear that her abuser would inflict greater injuries upon her if she did not act in self-defense. In that case, the officer may determine that the person with the less severe injuries is the primary physical aggressor.

If you find yourself being charged with domestic violence, please don’t hesitate to contact Skip Potter for representation.

Source:

http://www.ohiolegalservices.org/public/legal_problem/domestic-violence/domestic-violence/criminal-domestic-violence/qandact_view

Assault & Battery - 12/2/2015

Assault and Battery Laws in Ohio

Under Ohio law, you don’t have to try to assault someone to face criminal charges. Yes, there is a criminal assault charge that doesn’t require any intent. You can also face fairly serious assault charges even when you don’t harm anyone.

Simple Assault

Simple assault is also referred to as “assault” or misdemeanor assault in Ohio courts. It can carry up to 6 months in jail and $1,000 in fines as a first degree misdemeanor. You may be charged with this offense if you:

  • Recklessly cause serious physical harm to another, or
  • Knowingly cause or attempt to cause physical harm to another.

This means that you can be charged with this assault offense even if you don’t intend to hurt anyone at all. Ref: ORC 2903.13

Negligent Assault

Negligent assault is the least serious of all assault crimes. It is still considered a 3rd degree misdemeanor, however, and can result in up to 60 days in jail and $500 in fines.

If you’re being charged with this offense, it’s because the prosecution believes you acted with negligence while handling a deadly weapon or your negligence caused someone physical harm. These kind of charges sometimes occur when hunting and not following proper safety precautions, for example. Ref: ORC 2903.14

Felony Assault Laws in Ohio

The most serious assault offense under Ohio law is felony assault. This crime is considered a second degree felony and can carry anywhere from 2 to 8 years behind bars and fines reaching up to $20,000.

You could be facing this charge it you cause serious harm to an unborn child or you cause (or attempt to cause) harm with the use of a deadly weapon.

Yes, this means you could face felony charges for trying to cause harm with a weapon, whether or not you actually caused any injury. Ref: ORC 2903.11

Aggravated Assault Laws

There are slight differences between felony assault, as described above, and the offense of aggravated assault. This difference is that an aggravated assault must be done “under the influence of sudden passion or in a fit of rage.”

If you have this state of mind while causing serious harm to an unborn child or causing or attempting to cause harm with the use of a weapon, you could face this charge.

Aggravated assault is considered a “crime of passion” in this regard and the courts give you a slightly more lenient charge if they find you were in this state of heightened emotions because it’s widely accepted that people aren’t the most rational in situations like these.

Aggravated assault is considered a 4th degree felony and carries a potential 18 months to 6 years in prison and $5,000 in fines. Ref: ORC 2903.12

When you’re charged with any assault offense in the state of Ohio, you can be certain the prosecution will take the charges very seriously. It’s in your best interest to take them seriously as well.

It is strongly recommended that you seek legal representation if you are being charged with an assault and battery charge. Don’t hesitate, contact Skip now, he would be happy to assist you!

Reference: http://www.assaultandbattery.org/ohio/

 

 

Black Wednesday - 11/24/2015

For those of you who are unsure what Black Wednesday is referring to, in the urban dictionary it is Thanksgiving Eve. This is the night that everyone either comes home for the holidays to visit friends and family or would rather go out to eat, since they will be cooking all day for their grand thanksgiving meal the next day. Typically, most people have Thanksgiving day off, therefore this is the night that everyone meets up to socialize and reminisce over a few drinks at the local pub.

Thanksgiving Eve has developed over the years to have the reputation of one of the largest drinking days of the year. Bar owners across the country have reported that they have a large increase of alcohol sales this particular night. The police force increases their patrol and even some cities set up DUI checkpoints at designated, typically high traffic locations, specifically just for Black Wednesday.

If you happen to find yourself out on this glorious occasion, please drink responsibly. However, if you find yourself behind a wheel, being pulled over after having a few drinks and are issued a citation for an OVI, please consider checking out our blog “What do Cops Look for When Trying to Find Drunk Drivers?”.

If you are issued a citation and are looking for representation, please don’t hesitate and contact Skip Potter now. We will be happy to assist you!

Enjoy your Thanksgiving holiday!