Ohio Criminal Defense Legal Questions

Whether or not you are arrested on a bench warrant depends on the court and offense. Most courts just require another bond be posted but if the underlying offense is serious enough, or the judge is upset enough, then arrest may be inevitable -- but this is rare. I have had several cases involving bench warrants where I have just made a phone call to the court to recall the warrant and reset the court date. Of course, each case is unique.   The information provided in this answer is provided for general information only; the information provided should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. It is strongly advised you contact a lawyer in your geographic area to more fully discuss the issues raised in your question.    ... Read More

It is generally advisable to have an attorney represent a criminal defendant, in my opinion (as a criminal defense attorney) because criminal defense attorneys are familiar with the courts, the prosecutors and, most importantly, the laws.  Your son might very well have a defensible case or he could be eligible for a diversionary program.  An experienced attorney is in the best position to evaluate these issues before a plea of Guilty or No Contest is entered.   The information provided in this answer is provided for general information only; the information provided should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.  It is strongly advised you contact a lawyer in your geographic area to more fully discuss the issues raised in your question.    ... Read More

One of the consequences could be that the court revokes your bond and sends you to jail, or it may set a new bond where you will have to pay money. This may have an impact on whether or not you get community control and on your sentence too. A court is reluctant to place someone on community control if it feels the person will not make a good candidate.... Read More

Pursuant to Ohio Revised Code Section 4511.19(A)(1)(j)(vii), a person is guilty of OVI if: "(vii) The person has a concentration of marihuana in the persons urine of at least ten nanograms of marihuana per milliliter of the persons urine or has a concentration of marihuana in the persons whole blood or blood serum or plasma of at least two nanograms of marihuana per milliliter of the persons whole blood or blood serum or plasma." Operating a vehicle under the influence of marijuana (or other drugs of abuse) is subject to the same penalties as alcohol. As for the search question, if the driver consents to a search, there would generally not be any standing for the owner of the vehicle who was not present to object.... Read More

In Ohio, a person who is not convicted of an offense may move the court to seal the records of the case. (This is true even if they have other offenses which would bar expungement of a conviction.) The court then has the discretion to seal the case, which would have the effect of removing it from an ordinary criminal record check.... Read More

The death of the victim itself would not in itself terminate the case. It is likely that the victim in an identity fraud case would be an important witness. In many cases, it may not be possible to proceed without them, and this might result in dismissal of the charges. However, I can envision several sets of circumstances where the victim's testimony would not be required to prove a case, and a conviction could be possible without them. It all depends on what other evidence the prosecution has besides the victim's testimony.... Read More

If you are otherwise eligible as a first offender, you may apply to have your conviction sealed three years or more after having completed all sanctions imposed, including community control. This will go back before the judge who sentenced you, or, if he is no longer in that position, to the judge who took his seat when he left. if the judge was a visiting judge, it is likely that your case was assigned to a regular judge, and the visiting judge handled your case by assignment. Your case would most likely revert to the judge to which it was originally assigned, or, if you had the visiting judge based on a conflict of interest, a different visiting judge might be brought in. If you qualify, it would be unusual for a judge to deny your motion to seal the record. Most denials are based on the applicant's failure to qualify based on prior or subsequent offenses, or because the offense itself is ineligible for sealing. If you can access it, I believe I recently wrote a response to a very similar issue with more technical details.... Read More

If you qualify as a first offender, a third degree felony conviction for attempted burglary may be expunged three years after you have completed all sanctions under your sentence, including any period of probation. Convictions for certain traffic offenses can constitute prior offenses, including OVI, driving under suspension, and failure to stop after an accident. (This is not an exhaustive list, but these are the most common offenses.) If you qualify, you, or an attorney on your behalf, can file a motion to have your record sealed. Some courts require completion of lengthy applications or interviews. Ultimately the matter will be set for hearing with the judge who originally presided over your case. The court will then weigh any interests of the state in maintaining the record of the conviction against your own in having it sealed, and has some discretion as to whether to grant the motion. Practically speaking, most of the time courts will grant the motions of persons who qualify.... Read More

The penalties for drug possession vary from state to state. In some states, possession of small quantities for personal use is a misdemeanor. In others, especially when it comes to cocaine, it remains a felony. However, prison is unlikely for a first time drug offense involving such a small quantity of cocaine. Prison is not the only consideration when it comes to deciding whether to plead guilty to a felony. There are many adverse consequences to having a felony on your record, from difficulty to getting a job or professional license to losing your right to vote and possess a firearm or ammunition, to immigration consequences if you are not a U.S. citizen. Unless the state in which you are charged allows for complete expungement, these consequences can be permanent. Even a misdemeanor record can have adverse consequences, especially in the employment sector. It can also prevent you from obtaining a student loan. While prison is unlikely, some states allow for the imposition of county jail time as a condition of probation. You may also face a fine. Most states now allow for deferred adjudication or sentencing for possession of small amounts of drugs. Under these arrangements, which also differ from state to state, you may be placed under the supervision of the court or probation department, and if you stay out of trouble for a set period of time, complete drug classes and pass periodic drug tests, you can avoid having a permanent conviction on your record. It may seem less expensive and like less of a hassle to plead guilty if you aren't facing prison. But you should also consider the long-term consequences, and I recommend you consult an experienced attorney in your area with whom you can discuss the facts specific to your case. You may have a viable defense to the charge - perhaps the drug was seized as the result of an unlawful search. Even if that's not the case, an experienced attorney may be able to negotiate a deferred sentencing arrangement for you, if that's allowed in your state, so that you neither go to jail nor have a permanent conviction on your record.... Read More

The crime of telephone harassment varies from state to state. Generally, the statute makes it a crime for a person to call someone with the intent of harassing, abusing or threatening the recipient of the call or another person. In Ohio, where you are from, the offense is called telecommunications harassment. In addition to prohibiting calling someone with the intent to harass, abuse or threaten them, it prohibits knowingly calling someone who has previously told the caller not to call them. Even a single call can constitute the offense, provided all the elements of the offense, including the specified state of mind of the caller, are proven. If more than one call is made, each call could be charged in a separate count. In Ohio, the offense is a misdemeanor, unless you have a prior conviction for telecommunications harassment, in which case it is a felony. (There may be enhanced penalties if destruction of property is involved.) So, if you made ten threatening or abusive calls, while each call could be charged as a separate misdemeanor in a criminal case, none would be felonies unless you had previously been convicted of telecommunications harassment. However, once convicted, if you make even one additional call, and a new case is filed, the new charge would be a felony. The prior conviction would be an essential element of the crime and proved by the State. As to penalties for the misdemeanors, unless the Court specifies your sentences are to run consecutively, they will run concurrently. If consecutive sentences are imposed for multiple misdemeanors, the total cannot exceed 18 months. Again, the law may be different in other states.... Read More

No, police officers cannot lie when applying for a search warrant. A search warrant can only be issued upon an application supported by an affidavit - submitted under oath - stating the grounds establishing probable cause to believe that evidence of criminal activity is likely to be found in the place to be searched. When a search warrant is challenged, the judge confines his review to what is contained within the "four corners" of the affidavit, nothing else. If you can show that an officer lied in his affidavit, or made a intentional misrepresentation of a material fact, the reviewing judge will strike the false statements from the affidavit and then determine whether the remainder of the affidavit contains probable cause to issue the warrant. If the remainder of the affidavit does not contain probable cause, he or she will rule the warrant is invalid and evidence obtained from the search will be not be admitted at trial. Law enforcement officers can lie to suspects, such as when they do undercover deals and deny they are police officers, but they cannot lie to a judge. While there is a good faith exception for some errors in a search warrant, it is unlikely to pertain to deliberate falsehoods by the officer in the application and affidavit.... Read More

Voting laws for convicted felons vary from state to state. 48 states and the District of Columbia prohibit inmates from voting while incarcerated for a felony offense. Only two states - Maine and Vermont - permit inmates to vote. More than 25 states prohibit felons from voting while they are on parole or probation. Florida is one of only 8 states that deny voting rights for life to all ex-felons. Department of Justice figures show that approximately 4 million felons are currently or permanently disenfranchised. However, approximately 37 states have allow some people with felony convictions to regain their right to vote--mostly after the conclusion of their criminal sentences and periods of supervision. Recent states making favorable changes include Connecticut, Delaware, Maryland, New Mexico, and Texas. Ohio, where you are from, prohibits felons currently in prison from voting. Other categories of felons may be able to have their right to vote restored. I highly recommend you contact the Ohio elections commission and find out if you are eligible to vote. Voting is one of the most important personal rights in a democracy. The United States still believes in rehabilitating criminals who have served out their sentences. Restoring their right to vote is an important part of this process.... Read More

A search warrant for a residence is directed to the property address, not to the owner or tenant. To get a search warrant for a specific place, like a home, the police must provide a judge with an sworn affidavit showing probable cause to believe evidence of criminal activity will be found at the residence. If the judge issues a search warrant for the home, it does not matter who actually owns or leases the property--the police are entitled to enter and search the home. It may be that the affidavit for the warrant stated that the police believed evidence pertaining to a crime involving your son would be found at the residence and thus asked the judge to issue a warrant for the home. Usually, this is sufficient. However, the Fourth Amendment contains a provision that the place to be searched and the items to be seized must be set out in the warrant with sufficient particularity. For example, if the warrant authorized the police to search your home for a refrigerator, and they searched your underwear drawers, the search likely would not be upheld as reasonable because it is impossible for a refrigerator to be found in small drawers. This could mean that the police improperly executed the warrant. If you feel that the search warrant was overbroad in authorizing a search of the entire home, or that in searching your home, the police exceeded the scope of the search authorized by the warrant, you should consult a criminal defense attorney in your area who can ask you appropriate questions concerning the specific facts of your case and help you decide whether your son has grounds to challenge the warrant.... Read More

The crime of voyeurism is aimed at curbing peeping toms. In Ohio, it applies not only to trespass, but to any invasion of privacy, where a person eavesdrops or spies on another for the purpose of obtaining a vicarious sexual thrill. Thus, it covers not only the trespassing voyeur, but the voyeur who uses binoculars from his own or public property, or who peeks over the wall into a private space, or who eavesdrops with a stethoscope to the bridal suite wall. The law forbids a person to spy or eavesdrop upon another, photograph another person in a state of nudity, or videotape or photograph another person under or through their clothing for the purpose of viewing their body or underwear--if that person\\\'s intent is sexually arousing or gratifying himself or herself. In most cases, voyeurism is a second or third degree misdemeanor in Ohio. However, if the person commits voyeurism on a minor, it is a first degree misdemeanor. If the person commits voyeurism on a minor and is in a position of trust with respect to the minor, the offense is a felony. The law on voyeurism varies from state to state, so if you have a particular concern in this area, I recommend you seek advice from an experienced criminal defense attorney in your jurisdiction.... Read More

Every person is presumed innocent until proven guilty. Before you can be convicted of any crime, the prosecution must prove your guilt by proving all of the elements of the crime beyond a reasonable doubt. The burden is never on any defendant to show that he did not commit the crime. A defendant's only burden is to raise a reasonable doubt in the minds of the jury as to his guilt from all the evidence of the case. The defense of "self-defense" is what is called an "affirmative defense." When such a defense is raised by a defendant, the prosecution must not only prove each element of the crime beyond a reasonable doubt, it must also disprove self-defense beyond a reasonable doubt. While the law as to "self-defense" may vary from state to state, generally, a person is justified in using physical force upon someone else when it is necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person. How much force is allowed to be used in "self-defense"? The degree of force which you reasonably believe to be necessary to defend yourself or another person from such unlawful use of force. Can you ever respond to an attack or threat of an attack by using deadly force? Deadly physical force may be used only if you reasonably believe a lesser degree of force is inadequate -- and you have a reasonable belief that you or another person is in imminent danger of being killed or of sustaining a great bodily injury. You are not justified in using physical force if you provoke the use of unlawful physical force by the other person. Nor will your use of force be justified if you are the initial aggressor, unless you have withdrawn from the encounter and effectively communicated your intent to withdraw to the other person, but the other person nevertheless continues the use of unlawful physical force. Also, physical force is not justified where is the result of an unauthorized combat by agreement. ... Read More

There are two ways you can be convicted of a crime. One is if you plead guilty. The other is if a judge or jury finds you guilty after a trial. If you are found guilty after a trial, you have the right to appeal both your conviction (the finding of guilt) and your sentence. In federal court, there is a ten day time limit on filing a notice of your intent to appeal a conviction or sentence. In state court, the time limits vary from state to state. If you pleaded guilty, you may not be able to appeal your conviction (unless you try to withdraw your guilty plea, for which special rules apply) but you can appeal your sentence, if the sentence is illegal or if it was higher than you and the prosecutor agreed to in a plea bargain, and the Court agreed to the terms of the bargain before sentencing you. Generally, for a sentence to be illegal, it has to be higher than that allowed by law, which is rare. In addition to any right you have to appeal, most states provide a period of time such as 120 days for you to request a reconsideration of your sentence on general mercy grounds. You may also try to have your conviction and/or sentence set aside (generally within certain time limits) on the grounds that the conviction or sentence violated one or more of your constitutional rights or that new evidence has been discovered since your trial. For newly discovered evidence, you will likely have to show that you couldn't have reasonably found out about it before trial, and that if it was presented at a new trial, it would likely result in a different verdict. Your best bet is to contact a criminal defense lawyer in your state who can review the facts of your case with you and advise you of your available options. ... Read More

The best advice I can give you is to retain a competent attorney, probably a criminal defense attorney, to guide you through the process of undergoing a polygraph examination. Polygraphs are generally not admitted into evidence because courts do not consider polygraph results to be "reliable" evidence. Sometimes, a prosecutor will insist an individual take a polygraph to corroroborate their version of events as a condition of a plea-bargain. Or the prosecutor may request a polygraph to test a person's reliability if the individual has agreed to be a witness in court against another person. Many defense attorneys, when faced with having a client undergo a polygraph, will arrange to have their own expert test their client first. If the results are favorable, the lawyer is more comfortable having the client undergo a polygraph administered by law enforcement. In short, I recommend that you confer with a criminal defense lawyer in your area about whether you should undero a polygraph examination, and if so, who should administer it.... Read More

Leaving the scene of an accident (hit and run) is a serious offense. In many states, it carries enough points to result in a revocation of your driving privileges. It also carries a possible fine and jail sentence. Even if you settle the issue of damages with the other person involved, you will still have to answer to the criminal charges. The fact that you accepted financial responsibility will be a factor the judge will consider in imposing punishment, but it will not affect the issue of guilt to the criminal charge. You should seek legal advice. A criminal defense attorney in your town can tell you what course of action is best for you, and whether you should have an attorney accompany you to court to speak for you and attempt a favorable resolution of the case for you.... Read More

The right to effective assistance of counsel is guaranteed to every defendant in a criminal case by the Sixth Amendment to the United States Constitution. Effective assistance of counsel does not mean perfect counsel. Rather, a lawyer''s representation is ineffective if it fell below an objective standard of reasonableness and thereby prejudiced his defense. The burden is on the defendant to establish ineffective assistance of counsel. To do so, he must overcome the strong presumption that counsel''s conduct falls within the wide range of reasonable professional assistance. The claim will be reviewed from the perspective of his lawyer at the time he rendered his legal services, not in hindsight. In addition, in considering the lawyer''s performance, the court will focus not what is prudent or appropriate, but only what is constitutionally compelled. And finally, the defendant must establish that there is a reasonable probability that, but for counsel''s unprofessional errors, the result of the proceeding would have been different. A claim of ineffective assistance of counsel is most often raised in a habeas corpus proceeding after the denial of a direct appeal or a motion to withdraw a guilty plea. If the defendant failed to pursue either of these remedies in the state courts, he may be barred from seeking habeas review. An exception is sometimes made if the defendant can demonstrate cause and prejudice or a fundamental miscarriage of justice. State rules involving procedural default which have the effect of barring federal habeas review of ineffective assistance of counsel claims are given careful scrutiny. This is because habeas claims may be the only means through which an accused can effectuate the right to counsel. Courts realize that a lay person is ordinarily unable to recognize his lawyer''s errors and evaluate his professional performance. Thus, he may not know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer about his case. Thus, even if a defendant did not directly appeal his state conviction and sentence, or file to withraw his guilty plea, many courts still will allow him to proceed to file a claim to set aside his conviction for ineffective assistance of counsel in federal court, usually under 28 U.S.C. Sec. 2254. If you have missed the filing deadlines for a motion for new trial or to file a notice of direct appeal, you might first try to reduce the sentence under the applicable state law for post-conviction relief, usually rule 35. If that fails, and you believe there are grounds to support it, you can attempt to file a habeas petition in federal court alleging ineffective assistance of counsel. You should seek legal advice specifically on the laws of Ohio and the case law in the Sixth Circuit.... Read More