Ohio Criminal Defense Blog Posts | Joslyn Law Firm

Annie’s Law Awaits Governor’s Stamp of Approval

Inspired by the 2013 incident where a repeat drunk driving offender hit and killed Annie Rooney as she rode her bike, Ohio lawmakers are waiting for the final go-ahead from Governor Kasich. House Bill 388, better known as “Annie’s Law,” purports to prevent repeat DUI offenders from putting other drivers and pedestrians in danger by imposing more strict precautions on repeat offenders.

If Governor John Kasich approves of this bill, all automobiles owned by DUI offenders will require ignition interlock devices. These devices will require the driver to pass a Breathalyzer test to operate the vehicle.

Also, this bill will require cameras to be installed in these vehicles to record whether or not DUI offenders are complying with the Breathalyzer test. Furthermore, the bill proposes a GPS tracking system to keep record of the car’s location.

Both chambers have voted on the bill. The bill now requires Governor Kasich’s approval before becoming law.

Supreme Court Rules Individuals Convicted of Domestic Violence Cannot Own a Gun

Supreme Court Rules Individuals Convicted of Domestic Violence Cannot Own a Gun

Today, in Voisine v. United States,  the Supreme Court ruled that individuals convicted of misdemeanor domestic violence are prohibited from owning a gun under U.S.C. §922(g)(9). In another Supreme Court case, United States v. Castleman, the Court established that an individual loses his or her gun rights after being convicted of intentional domestic assault; however, there was still a question of whether an individual could be prohibited from owing a gun when the domestic violence conduct was reckless and not intentional.

Short Answer: Yes, an individual convicted of reckless domestic assault or battery is prohibited from owning a gun under federal law.

Can reckless conduct cause a person to lose his or her gun rights?

The two petitioners in Voisine were both convicted of domestic violence under the Maine Criminal Code § 207. Maine Criminal Code § 207 defines assault as “… intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person”.

The petitioners argued that the conduct which led to the criminal conviction was not intentional, but reckless and should not be considered a violation of U.S.C. §922(g)(9) or result in the loss of gun ownership rights.

The Supreme Court reasoned that Congress intended for individuals convicted of intentional assault and reckless assault to be barred from owning a firearm. In the 12 page opinion, the Court explained Congress’s definition of a “misdemeanor crime of violence” contains no exclusion for convictions based on reckless behavior and that “a person who assaults another recklessly uses force, no less than one who carries out that same action knowingly or intentionally”. The Court further asserted that “[f]irearms and domestic strife are a potentially deadly combination.

Can a person convicted of domestic violence in Ohio lose his or her gun rights?

34 states, including Ohio, have statutes which criminalize intentional and reckless harm against a family or household member. Under Ohio Revised Code § 2919.25 an individual may be convicted of domestic violence if he or she does the following:

  1. Knowingly causes or attempts to cause physical harm to a family or household member;
  2. Recklessly causes serious physical harm to a family or household member; or
  3. By threat or force, knowingly causes a family or household member to believe that the offender will cause imminent physical harm to the family or household member.

If an individual is convicted of domestic violence under Ohio Revised Code § 2919.25 he or she is prohibited from owning a gun under the federal statute U.S.C. §922(g)(9) regardless of whether the conduct was intentional or reckless.

Hire an attorney to increase likelihood of retaining gun ownership rights

Immediately after being accused or charged with domestic violence, it is important to consult an experienced domestic violence defense attorney. Individuals who represent themselves or hire a less experienced attorney are often scared into taking a plea deal in domestic violence cases. While a plea deal may result in little or no jail time, a domestic violence conviction will cause the individual to lose gun ownership rights.

Brian Joslyn of Joslyn Law Firm is an experienced domestic violence defense attorney. He has years of experience defending individuals accused and charged with domestic violence, domestic assault, aggravated assault, sexual battery, and rape. He is widely respected by the special domestic violence prosecutors and criminal court judges.

From the initial consultation, the team of attorneys will begin developing the strongest defense strategies to obtain the best possible results in your case. The Joslyn Law Firm aggressively defends individuals throughout Franklin County, including Columbus, Sunbury, Dublin, Reynoldsburg, Worthington, Groveport, Plain City, Heath, Granville, Baltimore, Bremen, South Bloomfield, New Holland, Commercial Point, and surrounding areas.

Contact the Joslyn Law Firm at (614) 444-1900 or (888) USA-RIGHTS for a free evaluation of your domestic violence case.

References: Voisine v. United States

 

Just Because You Don’t Think It’s a Sex Crime, Does Not Mean It Isn’t: An Overview of Sexual Imposition Laws in Ohio

The average person has a general idea of what constitutes rape or sexual battery, but are not aware that certain reckless behavior or sexual contact with an impaired person constitutes the criminal offense of sexual imposition.

What is Sexual Imposition?

According to Ohio Rev. Code § 2907.06, it is a criminal offense for a person to have sexual contact, cause another person to have sexual contact, or cause two or more persons to have sexual contact with a person who is not their spouse when:

  • The alleged offender knew the sexual contact was offensive or the conduct was reckless;
  • The alleged offender knew the other person’s ability to control the offender’s conduct was substantially impaired;
  • The alleged offender knew the other person submitted because they were unaware of the sexual contact;
  • The alleged offender was at least 18 at the time of the offense and four or more years older than the other person, and the other person was 13 at the time of the offense but less than 16 years old; OR
  • The alleged offender is or was a mental health professional who induced a client or patient to believe the sexual conduct was necessary for mental health treatment.

Sexual Imposition Criminal Penalties

Sexual Imposition may be a misdemeanor of the first or third degree depending on the defendant’s previous sexual offense convictions. A first degree misdemeanor is punishable up to 180 days in jail and a fine of no more than $1,000. A third degree misdemeanor is punishable up to 60 days in jail and a fine of no more than $500.

Ohio Sexual Imposition Cases

While the aforementioned statute appears straight forward, there has been much debate over what constitutes sexual imposition and the evidence necessary to support a criminal conviction.

It is well established in Ohio law that a person cannot be convicted of sexual imposition solely based on the testimony of the alleged victim, but how much evidence is necessary to support a sexual imposition conviction? Does an alleged victim have to prove force or injury?

In the cases below, the Ohio Supreme Court has clarified the elements of a sexual imposition conviction and corroborating evidence necessary to support a sexual imposition conviction.

State v. Economo, 76 Ohio St.3d 56, 666 N.E.2d 225 (Ohio, 1996)

In State v. Economo a medical doctor was convicted of two counts of sexual imposition after he allegedly inappropriately touched a female patient during two office visits. He allegedly massaged her private areas and rubbed his pant-covered erect penis on her arm. The Court in Economo reasoned the aforementioned conduct was offensive and reckless.

The defendant in Economo argued that the aforementioned conduct could not be corroborated other than by testimony of the alleged victim and her sister. The Court rejected his argument stating that sexual imposition is different from other sexual offenses as it does not involve force. A victim of sexual imposition will likely not have any bruises or marks to evidence the attack.

The Court reasoned that the other evidence, including proof that the victim had a doctor’s appointment with the defendant on the dates of the alleged assaults, the victim and the defendant had a 2-year patient-physician relationship, the victim’s fear of being alone in an exam room with the defendant, and the sister’s testimony that the victim was near tears after the appointment was sufficient proof the sexual imposition occurred. The defendant’s sexual imposition conviction was reinstated.

State v. Guenther, 2006 Ohio 767 (OH 2/22/2006), 2006 Ohio 767 (OH, 2006)

The defendant in Guenther was convicted of one count of sexual imposition and one count of gross imposition. The defendant allegedly inappropriately touched a female co-worker inappropriately on at least three occasions.

According to the testimony of the testimony of the victim, the defendant touched the victim’s breast by rubbing his chest against hers on one occasion. On the second occasion another male blocked the victim from exiting the room and the defendant touched the victim’s breast. On the third occasion the defendant prevented the victim from exiting her chair so he could touch her breasts in a small room.

The victim’s testimony was corroborated by the workplace supervisor, who had not witnessed the inappropriate touching, but was aware the victim was visibly shaken around the defendant. The supervisor was also afraid of the defendant and attempted to prevent his access to the victim.

The Court in Guenther reasoned the aforementioned evidence was sufficient to support his conviction and affirmed his conviction of sexual imposition and gross sexual imposition.

Conclusion

A sexual imposition case is fact intensive and requires a strong defense. While you may be falsely accused or your actions may have been misinterpreted, this may not be properly heard or believed by the jury in criminal court.

It is highly recommended to consult an experienced sexual imposition defense attorney if you are facing sexual imposition or gross sexual imposition charges in Ohio. Brian Joslyn of the Joslyn Law Firm is a trial proven sex crimes defense attorney.

Brian Joslyn has years of experience defending individuals facing sexual imposition charges. He is familiar with the tactics of the sex crimes investigators and prosecutors. He will skillfully examine all the evidence against you and develop the strongest defense possible.

If you have been charged with any sex crime, including sexual imposition, gross sexual imposition, rape, or child pornography contact the Joslyn Law Firm immediately at 614-444-1900 for a free evaluation of your case.

The Joslyn Law Firm diligently defends individuals throughout Ohio, including Franklin County, Pickaway County, Madison County, Delaware County, Licking County and Fairfield County.

References:

State v. Economo, 76 Ohio St.3d 56, 666 N.E.2d 225 (Ohio, 1996)

State v. Guenther, 2006 Ohio 767 (OH 2/22/2006), 2006 Ohio 767 (OH, 2006)

Because Ladies Lie: Eliminating Vestiges of the Corroboration and Resistance Requirements from Ohio’s Sexual Offenses, Cleveland State Law Review, 2014.

 

Second Amendment and Gun Rights of Ohio Residents

Ohio Lawmakers Amend Gun Crime LawsThe Second Amendment of the United States Constitution, which grants Americans the right to keep and bear arms, has been a constant topic of debate since it’s ratification in 1791.

Originally, construed to allow individuals the right to keep and bear arms connected to necessary militia service, the United States Supreme Court held in 2008 that the Second Amendment protects an individual’s right to bear arms unconnected with service in a militia. Further, the Supreme Court held that an individual may use arms for traditionally, lawful purposes, such as self-defense within a home.

Despite the Supreme Court’s relatively recent clarification of the Second Amendment, there continues to be much debate regarding gun ownership, including whether a person should have an individual right to own a firearm, whether individual firearm ownership contributes to gun violence, and whether additional restrictions should be placed on individuals to prevent mass shootings and other catastrophic events.

Why is there a debate in the first place?

There involves considerable debate regarding the Second Amendment for multiple reasons. First, the Second Amendment was drafted over 225 years ago. The United States was an entirely different place in 1791. The American Revolutionary War, during which the United States ceded from Great Britain, ended only eight years prior. The United States had been involved in a domestic war called the Northwest Indian War against numerous Native American tribes for five years. Also, the United States only consisted of fourteen states.

Regular, non-military Americans, living in this new country with wild and unchartered terrain, were often the only line of defense in their town or village during times of war. This historical context has caused many persons to believe the drafters of the Second Amendment intended for individuals to keep and bear arms connected to a militia only.

Advocates of gun restrictions and limitations often assert contemporary Americans are no longer responsible for the defense of their towns and villages. Americans have law enforcement and military personnel to respond to emergency situations and threats to security.

Pro-gun advocates (persons who support the individual right to bear arms) assert the nature of threats have changed since 1791. While an individual is not responsible for the protection of an entire village or town, he or she is responsible for self-defense and the defense of their home.

Gun Rights in Ohio

The state of Ohio would be considered a “Pro-Gun” state. There are few restrictions and prohibitions regarding gun ownership in the state of Ohio.  The Ohio State Constitution provides:

The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.

An individual age 21 or older may purchase handgun without a permit in the state of Ohio. Without a license the individual may only carry the weapon at his or her home. To carry or possess the weapon outside of the home, the individual must obtain a permit. Ohio is considered a “traditional open carry state”, which means with valid permit a gun owner may openly carry a firearm in public or engage in concealed carry, where the firearm is not visible to the casual observer.

To qualify for a permit, an individual must satisfy the following requirements:

  1. Must be at least 21 years of age
  2. Must be an Ohio resident for 45 days
  3. Must be a resident in home county for 30 days
  4. Must complete required education course and obtain a certificate
  5. Pass a criminal background check
  6. Pass a mental competency check

Common Firearm Related Charges

Despite the pro-gun laws in Ohio, there are several criminal charges that may result from unlawful possession of a firearm, including:

  • Improper Discharge of a Firearm: While Ohio does have relatively relaxed gun laws, there are several places an individual may not fire or discharge a firearm, including the occupied habitation of another, a school zone, within 1,000 feet of a school building (with intent to cause physical harm, panic, or fear), over a cemetery, and a public road or highway.
  • Using Firearms While Intoxicated: An individual may not possess or use a firearm while under the influence of drugs or alcohol. It is not required that the individual be intoxicated or have a blood alcohol content (BAC) over 0.08.
  • Possession of a Firearm by a Convicted Felon: Generally, an individual convicted of violent felony or any drug-related offense or under the indictment of a violent felony or any drug related offense may not possess a firearm

Other Persons Not Permitted to Possess a Firearm

There are also specific classes of persons who may not possess a firearm. Should the following classes of persons be found in possession of a firearm, he or she will be subject to criminal charges:

  • Drug dependent person
  • Chronic Alcoholic
  • Person who has been adjudicated mentally incompetent
  • Any person who has been committed to a mental institution
  • A fugitive from justice

Conclusion

The debate regarding gun rights and the limitations with undoubtedly continue. To avoid criminal charges, it is important to be knowledge about the constant legislative changes.

Brian Joslyn of Joslyn Law Firm is an experience criminal defense attorney and member of the National Rifle Association (NRA). He proudly represents clients facing all types of firearm offenses, including carry a concealed weapon, improper discharge of a weapon, and possession of a firearm by a convicted felon.

Brian Joslyn and the attorneys of the Joslyn Law Firm represent individuals facing firearms charges throughout Ohio, including Franklin County, Pickaway County, Madison County, Delaware County, Licking County and Fairfield County.

If you are facing any firearms charges, contact the Joslyn Law Firm at (614) 444-1900 for a confidential review of your case.

Domestic Violence Address Confidentiality

iStock_000001144891SmallDomestic violence is a criminal offense the state of Ohio takes very seriously. For several years, the state of Ohio has allocated considerable resources to special law enforcement investigation units and prosecution teams  dedicated to resolving domestic violence crimes, including rape, stalking, and sexual battery. Prosecution and convictions for domestic violence has risen; however, these measures have not always made domestic violence victims safer.

Until last month, the addresses of domestic violence victims were included in public records. This means the home address of a domestic violence victim could be accessed by anyone, including the former abuser, during a public records search. Having a former abuser, stalker, or rapist with access to a victim’s address can have disastrous consequences.

House Bill 359

In January 2016 the Ohio Legislature passed House Bill 359. House Bill 359 allows domestic violence victims to have their addresses omitted and/or erased from public records. HB 359 is aimed to protect  individuals who have been victimized by:

  • Sexual battery
  • Domestic violence/abuse
  • Rape
  • Human Trafficking
  • Stalking

HB 359 allows victims to withhold their contact information – specifically their home address – from appearing on public records when with government agencies.

The bill allows the Secretary of State’s Office  to assign domestic violence victims an Address Confidentiality Program (ACP) number, which would double as a P.O. Box, to use in place of their own address when:

  • Registering their vehicles
  • Registering to vote, and/or
  • Filling out any governmental forms

Additionally, domestic violence victims can also provide institutions of higher education as well as, their employers P.O. Box number in place of their address.

House Bill 359 was proposed after the gruesome 2009 triple-murder of domestic violence victims, Marcia Eakin and her two young children, in which public records where used by her ex-husband to track them down.

Effect of HB 359

In addition to making domestic violence victims safer and more secure in their homes. Domestic violence victims can also participate in several activities most people take for granted, including registering to vote and registering with the department of motor vehicles (DMV).

This is important, because once registered to vote or with the DMV, contact information is now public for any and every one to stumble upon. Before the passing of HB 359, many domestic violence victims were too afraid to take advantage of it for fear of being tracked down by the information provided while registering.

Many survivors of abuse would rather opt out of voting altogether than have their contact information listed online for their attacker to stumble upon.

Resources

The Ohio Domestic Violence Network (ODVN)  provides resources, information and training for domestic violence victims as well intervention programs for batterers.

For 9:00am – 5:00pm assistance, contact the ODVN at 1 (800) 934-9840

For afterhours assistance, the National Domestic Violence Hotline at 1 (800) 799-7233

Conclusion

Domestic violence charges are arguably the most disruptive and difficult charges to fight. Whether you’re in the midst of a child-custody dispute, have had a silly argument with your spouse that got out of hand, or are facing completely false accusations of abuse from a previous and/or current romantic partner, you should seek a legal professional. Even if the alleged victim does not follow through with the charges, there is still a possibility that you could face stiff penalties such as restraining orders, counseling, and jail time.

If you are in Ohio and have been charged with Domestic Violence in the state of Ohio, you need an experienced criminal defense attorney on your side. Contact the Joslyn Law Firm today to speak with one of our experience criminal defense attorneys at (614) 444-1900

Understanding the Legality of Sobriety Checkpoints in Ohio

Sobriety checkpoint

Ever since Ohio State University quarterback J.T. Barrett was arrested for operating a motor vehicle while impaired (OVI) and illegal backing near a campus-area sobriety checkpoint on Halloween, there has been increased conversation throughout the Buckeye State about what is and is not legal when it comes to these driving under the influence (DUI) roadblocks.

A November 6 story in the Columbus Dispatch was entitled, “Are DUI checks fair?” A story entitled, “Stop that nabbed OSU quarterback common” was published in the Toledo Blade on November 16 .

The basic constitutionality of sobriety checkpoints was upheld in the United States Supreme Court’s 1990 decision in the case of Michigan Department of State Police v. Sitz. In that case, the Court voted 6-3 that DUI roadblocks satisfied the Fourth Amendment standard of reasonable search and seizure because the state has a “substantial government interest” to prevent drunk driving.

Sobriety checkpoints still need to satisfy other requirements in order to be considered legal. In Ohio, police need to have a uniformly random method of stopping vehicles—such as every third or every fifth automobile.

Additionally, public notice also must be provided regarding the planned checkpoint. The Ohio State Highway Patrol will typically provide a notice of the general date, location, and time frame of a roadblock roughly one week in advance with the exact location and times being announced within 24 hours of the actual checkpoint.

One the most common questions following Barrett’s arrest though concerned people’s rights to turn around to avoid roadblocks. A motorist does indeed have the right to turn around to avoid a checkpoint—assuming that he or she can do so with a legal traffic maneuver.

In many cases, police set up roadblocks in locations specifically such that legal turnarounds are essentially impossible. In Barrett’s case, for example, he was cited for illegal backing as well as OVI.

It is important to remember that even when a person believes that he or she has legally turned around to avoid a sobriety checkpoint, another officer could be stationed nearby specifically to note such evasion attempts. Any failure to signal or other minor traffic infraction can then be used as a separate reason to stop a motorist and possibly lead to an arrest for OVI.

Of course, the absolute safest way to avoid any issue with a roadblock in Ohio is to not drive drunk. With many people likely to be partaking in alcoholic beverages at a variety of functions this holiday season, it is in everybody’s best interests to make sure they have designated drivers or alternate forms of transportation arranged in advance of their evening plans.

Whether you were arrested for OVI at a sobriety checkpoint or any other location in Ohio, you should immediately contact an experienced DUI defense lawyer in Columbus, Ohio.

Police can violate the constitutional rights of alleged offenders in a multitude of ways—not limited solely to roadblocks, and a knowledgeable attorney can investigate to determine whether any such transgressions could lead to your criminal charges being reduced or dismissed.

House Bill 347 Aims to Reform Ohio Civil Asset Forfeiture Law

Carrying a large amount of cash is risky. The fear of theft or losing the money is palpable, but new, unlikely culprits have emerged — culprits with a badge and a gun.

In recent years, thousands of people nationwide have forfeited large amounts of cash and other property seized by the police without an arrest, a trial, or a conviction. Known as “civil asset forfeiture,” the practice allows law enforcement to seize personal property based only on the suspicion that the property is linked to criminal activity. The government then often legally sells or keeps the proceeds of its ill-gotten gains.

The concept of “innocent until proven guilty,” a hallmark of the American criminal justice system, does not apply under many current civil asset forfeiture laws.

Once money or property is seized, getting it returned is difficult and costly and sometimes takes a year or more, in part because the law shifts the burden of proof from the government to the person whose cash or property was seized, forcing him or her to prove that it was not acquired illegally. The government will sometimes even go as far as suing the cash (you read that correctly) in an effort to make the rightful owner prove that the cash was not acquired illegally.

Under existing Ohio law (Ohio Revised Code Title XXIX, Chapter 2981), the authorities can seize cash or other property, including real estate and vehicles, if they suspect it is connected with a crime — even when no charges are filed. If you want your money back after it is seized, you need to go to court and fight the government.

If you have had money or property seized by the police or another law enforcement agency, you should seek the advice of an experienced attorney who will help you fight the seizure and work to get all your cash or property returned to you.

Call the criminal defense attorneys at the Joslyn Law Firm to learn more about forfeiture law in Columbus, Ohio, in Franklin County, Ohio, and surrounding areas.

The attorneys at the Joslyn Law Firm can explain the important deadlines that apply after a notice of seizure is issued or a seizure occurs in Ohio, so don’t delay. We can represent you at an adversarial preliminary hearing and in subsequent court appearances, if necessary. Let us put our experience to work for you.

Forfeiture Reaps Billions for Law Enforcement Coffers

Law enforcement agencies often rely on forfeiture to contribute to their operating budgets, even though the law was not initially intended that way and the law specifically prohibits seized assets from funding certain police activities.

Designed to help fight large drug trafficking organizations as part of the “war on drugs,” civil asset forfeiture has mushroomed into a cash cow for law enforcement, an activity its critics say is motivated by profit rather than crime-fighting.

A 2014 report in the Washington Post found that, under the U.S. Department of Justice’s Asset Forfeiture Program (AFP), police seized $2.5 billion in money and property nationally since 2001 from nearly 62,000 people who were not charged with a crime and without issuing a warrant. In order to seize the assets, all the police had to do was suspect that the assets were crime-related.

These seizures often occur during traffic stops, giving new meaning to the phrase “highway robbery.” Airports are another popular place for civil asset seizures. Law enforcement has also seized homes, boats, and other valuable property under civil asset forfeiture laws.

About $1.7 billion of the $2.5 billion seized from 2001-2014 eventually went to state and local law enforcement agencies while the other $800 million went to federal agencies such as the Department of Justice and the Department of Homeland Security, the Post reported; the median amount of a seizure was $8,800.

Only about one in six of the 62,000 seizures were legally challenged, the Post reported, in part because of the expense of fighting against the government. But in 41 percent of the seizures that were challenged, the government agreed to return money.

The appeals process took more than a year in 40 percent of the cases that were challenged, and often required owners of the cash to sign agreements not to sue police over the seizures, the Post said. Defendants also had to pay their own legal bills.

A report titled “Federal seizure program that benefits cops called ‘legal robbery'” in the Cincinnati Enquirer and other news outlets in September 2015 said that federal and local authorities across the country have seized more than $4.1 billion in assets since 2006.

The Institute for Justice, a non-profit legal group based in suburban Washington D.C., reported on its web site that Ohio law enforcement agencies received more than $83 million from the federal Equitable Sharing Program over nine years from 2000-2008.  The Institute for Justice sued the city of Philadelphia in 2014 over its civil asset forfeiture laws.

Challenging Forfeiture Laws

Critics of civil asset forfeiture portray it as “legal robbery” — comedian John Oliver lambasted the practice on his HBO show “Last Week Tonight” in October 2015 and the American Civil Liberties Union (ACLU) laments “police abuse of civil asset forfeiture has shaken our nation’s conscience.” Advocates point to the benefits of using the proceeds of civil asset forfeiture to outfit law enforcement with new equipment and combat illegal drugs.

Forfeiture laws that allow police to seize cash or other property and keep it have been attacked on due process and constitutional grounds in several states in recent years. Notably, New Mexico and Montana both reformed their forfeiture laws in 2015 and bills to reform forfeiture in Michigan were sent to that state’s governor for his signature in October 2015.

In Ohio, two lawmakers introduced a bill in the state legislature in September 2015 seeking to reform the state’s existing forfeiture law.

Ohio House Bill 347, filed by Rep. Robert McColley and Rep. Thomas E. Brinkman, Jr., would repeal certain parts of the existing law while adding and revising other sections. Much of the wording of the proposed changes to Ohio law is similar to the wording of the new laws enacted in New Mexico and Montana and the one pending in Michigan.

The Ohio bill seeks to change the legal standard of proof to one where the government must show “clear and convincing evidence” of a crime that permits forfeiture instead of relying on the current, lesser standard of a “preponderance of the evidence” (§2981.09(A), proposed). (The standard for a criminal proceeding is that guilt must be proven “beyond a reasonable doubt.”)

The proposal also would prohibit local police from coordinating with federal authorities unless the amount of property seized was more than $50,000.

Overwhelming Public Support

In a September 2015 poll of Ohio residents conducted for the U.S. Justice Action Network and its non-profit advocacy group, Fix Forfeiture, 81 percent of respondents said Ohio’s civil asset forfeiture law was “in need of reform,” while only 7 percent believed the current system is “working well now.”

Fix Forfeiture’s message is that forfeiture is clearly an area ripe for reform, and fixing it will be a significant step toward making Ohio’s criminal justice system smarter, fairer, and more effective.

Keep in mind that although positive changes to Ohio forfeiture law are underway and have broad public support, law enforcement officials certainly won’t give up such a windfall of cash without a fight. Current laws impose strict deadlines how much time you have to challenge a civil asset seizure, so if your money or property have been seized, you should act quickly to protect it from forfeiture.

The Joslyn Law Firm represents clients whose cash, property, or other assets have been seized by law enforcement in Columbus, Ohio, as well as Franklin County, Delaware County, Madison County, Licking County, Fairfield County, and Pickaway County, Ohio. Call us today. Our experienced criminal defense attorneys in Columbus, Ohio, are ready to explain Ohio’s current civil asset forfeiture laws to you and fight for your rights — and your property.

 

Attorney for Sealing Records in Columbus, Ohio

Ohio law provides for a two-step process for sealing records. First, the trial court must determine if a person is eligible; only then can it proceed with a determination of facts and decide whether to seal a record. The specific requirements for eligibility vary depending on whether a person is seeking to:

  • Seal records related to arrests and cases ending in “not guilty” findings, dismissals, and “no bill” verdicts; or
  • Seal records of convictions and bail forfeitures. See R.C. 2953.32 and 2953.52.

Call the criminal defense attorneys at the Joslyn Law Firm to learn more about sealing a criminal record in Columbus, Ohio, or the surrounding areas in Franklin County, Ohio. Let us put our experience to work for you.

Is the Applicant to Seal an Eligible Offender?

When a person seeks to seal a record of a conviction, it must be determined if he or she is an “eligible offender” which means the court must determine whether:

  • The criminal record reflects a permissible number of convictions;
  • The conviction or convictions sought to be sealed are currently eligible to be sealed (based on the time elapsed since the time of final discharge and the nature of the conviction); and
  • No criminal proceedings are currently pending against the applicant.

See R.C. 2953.31(A); 2953.32(A) and (C)(1)(a) and (b).

Ohio Revised Code 2953.31(A), as amended by 2012 Am.Sub.S.B. No. 337 (“S.B. No. 337”) expanded the number of offenses subject to the sealing of records. When determining whether an applicant is an “eligible offender,” the court must consider whether the person:

  • Was convicted of an offense in Ohio or any other jurisdiction;
  • Has no more than one felony conviction;
  • Has no more than two misdemeanor convictions*; or
  • Has no more than one felony conviction and one misdemeanor conviction in Ohio or any other jurisdiction.

*Effective September 19, 2014, the legislature removed the language “if the convictions are not of the same offense” when determining whether the offender had no more than two misdemeanor convictions. 2014 Am.Sub.S.B. No. 143.

Under R.C. 2953.32(C)(1)(a), when a trial court reviews an application to seal an adult criminal record, it must determine as a threshold question whether an applicant is an “eligible offender” as set forth in R.C. 2953.32(A) and 2953.31(A).

A court lacks jurisdiction to seal records when an applicant is not an “eligible offender.” State v. Dominy, 10th Dist. No. 13AP–124, 2013–Ohio–3744, ¶ 6.

Which Prior Convictions Are Counted?

In most cases, a conviction for a minor misdemeanor, for a violation of any section in Chapter 4507., 4510., 4511., 4513., or 4549. of the state Revised Code, or for a violation of a municipal ordinance that is substantially similar to any section in those chapters cannot be applied as a conviction that counts against the offender under the sealed records statute.

Convictions that do not apply under the statute include:

  • Violations of R.C. Chapters 4507 and 4510, which relate to administrative drivers license concerns;
  • R.C. Chapter 4511, which relates to traffic controls and signs;
  • R.C. Chapter 4513, which relates to vehicle equipment requirements and load limitations; and
  • R.C. Chapter 4549, which generally relates to motor vehicle crimes.

The following charges shall be considered convictions that may be applied under the statute:

  • A violation of sections 4511.19, 4511.251, 4549.02, 4549.021, 4549.03, 4549.042, or 4549.62;
  • A violation of sections 4549.41 to 4549.46 of the Revised Code;
  • A violation of sections 4510.11 or 4510.14 of the Revised Code that is based upon the offender’s operation of a vehicle during a suspension imposed under sections 4511.191 or 4511.196 of the Revised Code;
  • A violation of a substantially equivalent municipal ordinance;
  • A felony violation of Title XLV of the Revised Code, or
  • A violation of a substantially equivalent former law of this state or former municipal ordinance.

Offenses that may be applied as convictions under the statute are more serious traffic offenses, including:

  • Violations of R.C. 4511.19, operation of a vehicle while intoxicated;
  • R.C. 4511.251, street racing; and
  • R.C. 4549.02, 4549.021 and 4549.03, stopping after an accident involving property damage.

Also, many serious crimes may be applied as convictions, including:

  • R.C. 4549.042, involving the sale or possession of master car keys for illegal purposes;
  • R.C. 4549.62, vehicle identification number fraud;
  • R.C. 4549.41 through 4549.46, odometer fraud; and R.C. 4510.11 and 4510.14, driving under suspension.

List of Offenses Ineligible for Sealing

Ohio law provides that a conviction for certain types of offenses can never be sealed, even if it is the only conviction. Those offenses include:

  • Any first or second degree felony;
  • Any offense with a mandatory prison term;
  • Any offense of violence including:
    • 2919.22 Endangering children (*Division (B)(1), (2), (3), or (4))
    • 2911.12 Burglary (*Division (A)(1), (2), or (3) of section)
    • 2923.161 Improperly discharging a firearm at or into a habitation, in a school safety zone or with intent to cause harm or panic to persons in a school building or at a school function
    • 2921.34 Escape
    • 2921.04 Intimidation of attorney, victim or witness in criminal case
    • 2921.03 Intimidation
    • 2919.25 Domestic violence
    • 2917.31 Inducing panic (*unless the offense is a first degree misdemeanor)
    • 2917.03 Riot (*unless the offense is a first degree misdemeanor)
    • 2917.02 Aggravated riot
    • 2917.01 Inciting to violence (*unless the offense is a first degree misdemeanor)
    • 2911.11 Aggravated burglary
    • 2911.02 Robbery
    • 2911.01 Aggravated robbery
    • 2909.24 Terrorism
    • 2909.03 Arson
    • 2909.02 Aggravated arson
    • 2907.12 Felonious sexual penetration (former)
    • 2907.05 Gross sexual imposition
    • 2907.03 Sexual battery
    • 2907.02 Rape
    • 2905.11 Extortion
    • 2905.02 Abduction
    • 2905.01 Kidnapping
    • 2903.22 Menacing
    • 2903.211 Menacing by stalking
    • 2903.21 Aggravated menacing
    • 2903.15 Permitting child abuse
    • 2903.13 Assault (*unless the offense is a first degree misdemeanor)
    • 2903.12 Aggravated assault
    • 2903.11 Felonious assault
    • 2903.04 Involuntary manslaughter
    • 2903.03 Voluntary manslaughter
    • 2903.02 Murder
    • 2903.01 Aggravated murder

Additionally, any sexual offense not already listed is ineligible to be sealed, including:

  • Unlawful sexual contact with a minor
  • Illegal use of a minor in nudity-oriented material or performance
  • Sexual imposition
  • Importuning
  • Pandering obscenity involving a minor
  • Pandering sexually oriented matter involving a minor

Although a traffics offenses can never be sealed, they may not be applied as criminal convictions unless they are one of the traffic offenses listed below:

  • Knowingly offering to sell a car on which the odometer was tampered with
  • Tampering with an odometer
  • Sale or possession of a master key designed to fit more than one vehicle
  • Driving under suspension (after DUI or refusing to take breathalyzer/chemical test)
  • Offenses with purpose to conceal or destroy identity of car or its parts
  • DUI
  • Street racing
  • Various types of hit-and-runs
  • Leaving the scene of an accident

Facts Support the Required Findings to Seal Record

Once an applicant has been found to be an eligible offender, the statutes require a court to use its discretion to weigh a number of factors. The factors vary, depending on whether the person seeks to seal records of convictions and bail forfeitures or records relating to arrests and cases ending in dismissals, “not guilty” findings, or “no bill” verdicts. See R.C. 2953.32 and 2953.52.

When considering whether to seal records of a conviction for an eligible offender, a trial court must make statutorily required determinations of:

  • Whether the applicant has been rehabilitated to the satisfaction of the court;
  • Whether the reasons, if any, offered by the prosecutor in any written objection against sealing the records are persuasive; and
  • Whether the interests of the applicant in having conviction records sealed outweigh the legitimate needs, if any, of the state to maintain those records.

See R.C. 2953.32(C)(1)(c) through (e).

If the trial court finds that a person is eligible and determines that the facts supporting the other required findings should be construed to favor sealing the records of conviction, then the trial court “shall order all official records of the case that pertain to the conviction or bail forfeiture sealed.” R.C. 2953.32(C)(2).

Under S .B. No. 337, if the jurisdictional requirements and discretionary factors are met, a trial court is without authority to refuse to seal the records. Further, the sealing statutes are remedial and are, therefore, to be construed liberally to promote their purpose and assist the parties in obtaining justice. State ex rel. Gains v. Rossi, 86 Ohio St.3d 620, 622 (1999).

Additional Resources for Sealing an Ohio Record

Sealing Criminal Records in Ohio — Find information from the Ohio Justice & Policy Center and Ohio Poverty Law Center about the process of sealing a criminal record in Ohio. Find a list of offenses that are ineligible for sealing of adult criminal convictions.

Franklin County – answers to common questions — Visit the Franklin County Clerk of Courts website to find out more information about having a record sealed or expunged. The website discusses Ohio Revised Code statutes 2953.32 for sealing and 2953.36 for eligibility guidelines, and  2953.31 for first offender qualifications. Learn more about reentry participants and find templates, forms, and links to additional resources.

Sealing of Court Records in Franklin County — Visit the website for the Franklin County Municipal Court to learn more about sealing a court record in the Criminal/Traffic Department in Franklin County, Ohio. Record checks are obtained through the Franklin County Sheriff’s Department. An application for expunction can be filed in limited circumstances such as for certain firearm offenses and offenses committed by victims of human trafficking.


Finding an Attorney to Seal a Record in Franklin County, Ohio

If you want to seal a record in Columbus, Ohio, or the surrounding areas of Franklin County, then contact an experienced criminal defense attorney at Joslyn Law Firm. We can help you determine if you are eligible and if so, we can help guide you through the process as painlessly and as quickly as possible.

Confidential Informants and Search Warrants in Ohio

In many drug cases in Columbus, Ohio, and throughout Franklin County, law enforcement officers use a confidential informant, also known as a CI. The confidential informant is often facing his or her own criminal charges. Law enforcement officers will negotiate with the confidential information, sometimes through the informant’s criminal defense attorney, for cooperation in setting up another person.

In exchange, law enforcement officers will promise not to arrest or prosecute the confidential informant for his or her own criminal charges. In some cases, the confidential informant is actually paid cash or other benefits for the cooperation.

The confidential informant then acts as a witness, and will approach the defendant for the purpose of getting the defendant to engage in illegal conduct such as a drug transaction to sell marijuana or another controlled substance. Because the confidential informant is acting at the request of law enforcement, the confidential informant receives immunity for his or her participation in these crimes.

In many of these cases, entrapment is an important defense that can be used to show that “but for” the actions of the confidential informant or undercover officer, the crime would not have occurred and the defendant was not predisposed to commit the crime.

Search Warrants in Drug Cases in Columbus, Ohio

After using a confidential informant to manufacture a crime involving the defendant, law enforcement officers will then use the information provided by the confidential informant as the basis to obtain a search warrant. Under Crim. R. 41, for any search warrant to issue, it must be supported by a sworn affidavit or affidavits establishing the grounds for the warrant.

The affidavit in support of the search warrant must also name or describe the person to be searched or particularly describe the place to be searched for and seized, the place to be searched, and the person to be searched, as well as the factual basis for the allegation of a crime.

When law enforcement uses information from the confidential informant to obtain the basis for the search warrant, the officers will often ask the court to leave the contents of the warrant “under seal.”

Sealing the contents of the warrant means that information in the search warrant is not available for public view. That information might include the affidavit, search warrant, inventory, and the return on search warrant listing the warrant number.

In those cases, the warrant is served, but the affidavit supporting the warrant, inventory, and return of the search warrant often remain sealed. In this way, the law enforcement officers can keep the identity of the confidential informant secret, even from the criminal defense attorney representing the defense for the pending charges.

Motions to Unseal the Search Warrant

Under Article I, § 10 of the Ohio Constitution and under the Sixth and Fourteenth Amendments to the U.S. Constitution, an attorney has an obligation to render effective assistance of counsel to the defendant.

Effective assistance of counsel in these types of cases requires investigating all information that would be helpful or beneficial to the defendant in preparing a defense to the criminal charges.

Talking to the confidential informant may help the defense determine what other criminal acts may have occurred at the same location. Also, talking to the confidential informant is critical to determining whether entrapment occurred.

While it may be necessary to keep a warrant sealed for a limited period of time in some cases, it is difficult to imagine any reason for keeping a warrant sealed for more than a short time span. If the warrant is not unsealed quickly, then the criminal defense attorney may file a Motion to Unseal the Search Warrant.

The motion will request that the Court issue an order directing the Clerk of Court for Franklin County and the State of Ohio to unseal and make public the affidavit, search warrant, inventory, and the return on search warrant.

A qualified criminal defense attorney in Columbus, OH, can also file a motion to compel disclosure of the confidential informant’s identity.

Finding a Drug Crimes Attorney in Columbus, Ohio

If you are facing serious felony drug charges in Columbus, Ohio, involving an undercover sting operation using a confidential informant or undercover officers, then contact an experienced drug crime attorney at Joslyn Law Firm.

We can help you understand the charges against you, the best way to assert the entrapment defense as mitigation, as a matter of law, or as an affirmative defense at trial.

Call today to find out what our drug crime attorneys in Columbus, Ohio can do to help you fight the charges.

Ohio’s Right to a Speedy Trial

If the prosecutor violates your right to a speedy trial, then the case should be dismissed. Your right to a speedy trial means the state must bring you to trial within the time limits proscribed in the Ohio Revised Code. For a first or second degree misdemeanor charge in Ohio, the case must be tried within 90 days unless you waive your right to a speedy trial.

Even if your statutory rights to a speedy trial were not violated, the State might have violated your constitutional rights to a speedy trial after a long delay.

The statute of limitations is set out in R.C. 2901.13(A)(b). It permits the State two years within which to bring misdemeanor charges against an individual. The statute of limitations is different than the right to a speedy trial because one governs when the prosecution must be commenced and the other governs when the case must be tried.

Contact an experienced criminal defense attorney at the Joslyn Law Firm in Columbus, Ohio, for a case in Franklin County or the surrounding areas.

Statutory Right to a Speedy Trial in Ohio

Once a first or second degree misdemeanor charge is filed or an arrest warrant is issued for an individual, the person must be tried within 90 days. R.C. 2945.71(B)(2).

A prosecution is commenced on the earlier of:

  • The date an indictment is returned or an information is filed; or
  • The date a lawful arrest without a warrant is made;
  • The date a warrant, summons, citation or other process is issued.

See Ohio Revised Code 2901.13(E).

A prosecution is not commenced by the return of an indictment or the filing of an information unless reasonable diligence is exercised to issue and execute process on the same. R.C. 2901.13(E).

The prosecution bears the burden of proving the trial commenced within the 90-day statute of limitations. State v. Greer, 2 Ohio App.3d 399, 442 N.E.2d 473 (1981). To do so, the prosecution must demonstrate that reasonable diligence was exercised to serve the summons. State v. King, 103 Ohio App. 3d 210, 212-213, 658 N.E.2d 1138 (1995).

The prosecutors representing the State of Ohio fail to show reasonable diligence when the state attempts an improper service or receives a return on service that is undeliverable and then the state takes no further action. State v. Morris, 20 Ohio App.3d 321, 486 N.E.2d 168 (1984); State v. Greer, 2 Ohio App.3d 399, 442 N.E.2d 473 (1981).

If the delay in prosecution of a criminal case is due to the state’s failure to attempt to serve the defendant, the delay is unconstitutionally unreasonable and violates the defendant’s right to a speedy trial. State v. Sears, 166 Ohio App.3d 166, 849 N.E.2d 1060 (2005).

Constitutional Right to a Speedy Trial

If the state has not violated the statutory provisions for a speedy trial in Ohio, the U.S. Constitution also provides for a constitutional right to a speedy trial that is broader than the statutory rights set by each state. To assert this claim, the defendant must show that pursuant to the relevant Ohio statutes and case law, the delay is constitutionally unreasonable and defendant has been prejudiced by the delay.

The court will dismiss the case when it is shown that the prosecutors with the State of Ohio failed to bring the defendant to a speedy trial in violation of his state and federal constitutional rights.

The provisions of Section 10, Article I of the Ohio Constitution and of the Sixth Amendment to the U.S. Constitution, as made applicable to the states by the Fourteenth Amendment, guarantee a defendant in a criminal case the right to a speedy trial.

Although statutory periods exist in Ohio, those statutory periods of limitations are not relevant to a determination of whether an individual’s constitutional right to a speedy trial has been violated by an unjustified delay in prosecution. State v. Selvage, 80 Ohio St.3d 465, 468, 687 N.E.2d 433 (1997).

For purposes of raising a constitutional challenge based on post-indictment delay, the U.S. Supreme Court set forth a four-part test in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Under the Barker test, a trial court is required to consider four factors:

  1. The length of delay;
  2. The reason for the delay;
  3. The defendant’s assertion of his rights; and
  4. Prejudice to the defendant.

When determining whether constitutional rights to a speedy trial have been violated, the first factor for the court to consider is the length of the delay. Under the Supreme Court’s analysis in Barker, the more straight-forward and ordinary the crime, the shorter the amount of time that is required to prejudice the defendant. Barker at 531.

Relying on R.C. 2945.71, the First District Court of Appeals held that for a misdemeanor, any delay longer than 90 days is presumptively prejudicial. Sears at ¶ 12. Therefore, if the length of time from the charges being filed to the service of the warrant is longer than 90 days, the next step of the test is triggered. Id.

The First District addressed the second and third factor of the Barker analysis in State v. Sears. Id. at ¶ 14. In Sears, there was no evidence the state pursued attempts to serve a warrant or complaint on the defendant. Although the complaint and affidavit contained an incorrect zip code, the state never suggested it had a problem locating the defendant or needed extra time to collect witnesses or to file pretrial motions.

In Sears, the defendant never attempted to avoid service or move outside of the jurisdiction; he only learned of the warrant when he was pulled over for a traffic offense nine months after the complaint was filed. In affirming the trial court’s dismissal on speedy trial grounds, the court found that the defendant should not be punished for failing to assert a right that he could not have otherwise known about. Id. at ¶ 15.

Likewise, in State v. Looper, a copy of the indictment was mailed to the defendant by certified mail and was returned marked “addressee unknown.” State v. Looper, 61 Ohio App.3d 448, 573 N.E.2d 123 (1988). The warrant was not executed until six years later.

“Because the State made no effort to notify the defendant of the indictment at her mother’s address, the court found that the ‘reason for delay’ factor weighed against the state.” Id. at 450.

For the fourth factor, the defendant has the burden of showing the prejudice that occurred in his or her particular case. United States v. Lawson, 780 F.2d 535, 541-542 (6th Cir. 1985). A lengthy delay in prosecuting the defendant, by itself, does not constitute actual prejudice. The defendant must demonstrate how the length of the delay has prejudiced his ability to have a fair trial. United States v. Norris, 501 F.Supp.2d 1092, 1096 (S.D.Oh.2007).

The court in Sears noted that impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony can rarely be shown. Sears at ¶ 16 citing Doggett v. United States, 505 U.S. 647, 655, 120 L.Ed.2d 520, 112 S.Ct. 2686 (1992). However, the court in Sears held that prejudice is presumed when the government fails to use reasonable diligence to serve the warrant. Sears at ¶ 16.

Finding an Attorney for Speedy Trial Claims

If you are charged with a crime and need a criminal defense attorney to help you fight the charges in Columbus, OH, or the surrounding areas of Franklin County, then contact an experience attorney at the Joslyn Law Firm.

We are experienced in raising speedy trial claims when it can be shown that the state prosecutor did not commence the trial within the statutory time period provided by R.C. 2945.71(B)(2), in violation of the right to a speedy trial.

Our attorneys are experienced in asserting this important right guaranteed by Section 10, Article I of the Ohio Constitution and the Sixth Amendment to the United States Constitution, which is applicable to the State by the Fourteenth Amendment of the U.S. Constitution.

Talk to us about the viability of a motion to dismiss after a violation of the right to a speedy trial in accordance with the Ohio Revised Code, the Federal and State Constitutions, and relevant case law.