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.

 

Pro-Marijuana Committee Collecting Signatures to Change Expungement Law

A pro-marijuana organization in Ohio plans to begin collecting signatures for a proposed law that would allow certain cannabis crimes to be expunged once the controlled substance becomes legal in The Buckeye State.

ResponsibleOhio, a political action committee trying to legalize medical and recreational marijuana in Ohio, has drafted what is referred to as the Fresh Start Act. This would allow those convicted of certain marijuana offenses to have those records expunged or destroyed, according to the Columbus Dispatch.

The Ohio Ballot Board voted 3-2 Wednesday to give ResponsibleOhio permission to begin collecting the necessary 91,677 signatures of Ohio voters to move forward in the statute process. If approved, the expungement language would be separate from its original proposal to legalize marijuana.

The initial amendment would create the Ohio Marijuana Control Commission to regulate the acquisition, growth, cultivation, extraction, production, processing, manufacture, testing, distribution, retail sales, licensing and taxation of the substance and related products.

It also would legalize the use of medical marijuana for patients with debilitating medical conditions if a medical marijuana certification has been provided by the patient’s treating physician. Other states have included conditions such as cancer, AIDS and glaucoma.

Additionally, it would allow marijuana and marijuana-infused products for personal use in amounts of one ounce or less by people 21 years of age or older. It also would make it legal for those 21 years old or older to purchase, possess, transport, use and share one ounce or less with another person 21 years old or older.

Under the Fresh Start Act, those who have been convicted of possession of less than one ounce of marijuana could fight to have the record of the offense sealed. Currently, according to Ohio Revised Code § 2925.11, possession of less than 100 grams is a minor misdemeanor possession offense.

This minor misdemeanor currently is punishable by a fine up to $150. A first offense likely would not result in a jail sentence. Although it is a misdemeanor, a conviction could have serious consequences on a person’s future, and expunging the record could be beneficial.

Some argue the Fresh Start Act is not needed because minor possession offenses already can be sealed. In some cases, however, record sealing does not protect the person’s past enough. The information still can be found through background checks and internet searches. Expungement would be more thorough.

According to Ohio Rev. Code § 2953.32, a person currently may be eligible to seal his or her criminal record if he or she is a first time offender or a misdemeanor offender who has completed all of his or her sentencing requirements. A misdemeanor record would have to be sealed one year after completing the requirements.

Once the signatures have been verified, the Ohio General Assembly has four months to act on the law, according to the Columbus Dispatch. If the law is changed, rejected or not acted on, the committee would need to collect another 91,677 signatures to put the law before voters on the statewide ballot.

Ohio House Bill to Change Police Requirements and Increase Training

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The Ohio House approved a bill this week that would change the requirements to become a law enforcement officer in the state and increase the number of training hours applicants must complete.

The bill, introduced by Republican representatives Tim Derickson of Oxford and Nathan Manning of North Ridgeville, was aimed at improving relationships between local police and their communities, according to The Columbus Dispatch.

The nation has seen increased coverage of controversial fatal police shootings, including the shooting of John Crawford, a 22-year-old black man who was shot and killed last August in a Dayton-area Walmart while holding an air rifle.

Tamir Rice, a 12-year-old black child, was fatally shot in November in a Cleveland park while holding a BB gun. The deaths of these two Ohio residents sparked protests and concern regarding police actions. Some state officials have been examining law enforcement practices.

The new measures in the bill are a result of recommendations for upgrading police training and standards by committees convened by Attorney General Mike DeWine and Gov. John Kasich. The committees were established in response to the protests.

Ohio is one of only three states that does not require law enforcement officers to have a high school diploma or a certificate of high school equivalence before becoming an officer. However, House Bill 204 would make having one mandatory.

If a person has been appointed a police officer before the bill is passed, he or she would not have to meet the requirement. This means the person still could be an officer, if hired for the job before the date of the bill, without a diploma or GED.

The bill also would lift the current training cap of 650 hours, adding the attorney general will not restrict the state police training commission from establishing a higher amount if deemed necessary. This could allow increased training beyond the 650, although it would not be mandatory.

Proper police training is critical in ensuring a person’s rights are not violated during an arrest. Violations often include interrogation without Miranda warnings or in violation of an individual’s Fifth Amendment rights, conducting a search and seizure without probable cause or a warrant and unlawful execution of a search and seizure warrant.

If the person’s rights were violated, this could be a criminal defense to the charges. An experienced criminal defense attorney can challenge the admissibility of evidence or file a motion to suppress evidence. This could be the difference between a conviction and having the charges dismissed.

If you are arrested for a criminal offense in Ohio, contacting an experienced defense attorney is important. Contact Joslyn Law Firm at (614) 444-1900 to schedule a free initial consultation and learn more about how to protect yourself after criminal charges.

Proposed Bills Aim to Change Heroin Laws and Decrease Overdoses in Ohio

drug-varieties

Lawmakers in Ohio are proposing legislation this session aimed at curbing the use of heroin and the abuse of some medically prescribed drugs with the goal of reducing the number of drug overdoses in the state.

One bill directly related to overdoses is the Good Samaritan Bill. The bill, according to Cincinnati.com, would prevent law enforcement from incriminating a person for drug possession if he or she calls emergency services to report an overdose.

A similar bill failed to pass in the previous Ohio General Assembly session because some lawmakers feared it would enable drug use, according to the article. However, others have argued it is needed because drug users sometimes fail to call for help if a companion overdoses.

The bill, however, would have some restrictions. For example, so as to not assist those who could potentially be dealing or selling drugs, the law would not protect those who have more than one gram of heroine, according to the article.

Also, if a person who called for medical help is on probation at the time for a prior offense, he or she would not necessarily be sentenced to jail. A treatment option would be considered as an alternate to incarceration.

Another bill making its way through the legislature is looking to decrease the minimum amount of heroin involved in a trafficking in heroin or possession of heroin violation that could make the offense a felony of the first degree, which is necessary to classify an offender as a major drug offender.

According to Cincinnati.com, House Bill 171 is looking to reduce by 60 percent the amount of heroin that could lead to an 11-year incarceration period.  Under current law, a person who possesses between 50 and 2,500 doses of heroin will be charged with a first-degree felony. This could mean between three and 11 years in prison.

However, the proposed bill would decrease the upper limit to 1,000 doses or 100 grams, which would be similar to penalties for cocaine offenses. Some supporters of the law argue having fewer people incarcerated means more money could be spent on treatment services.

House Bill 4, which also has been proposed in an effort to decrease drug overdoses, would modify existing laws governing the authority to dispense or furnish naloxone, which is used for heroin or other opioid overdoses.

Under House Bill 4, prescribers do not have to be present, which would allow the drug to be more widely distributed to people and those close to drug users who are at risk of an overdose, according to The Columbus Dispatch.

A naloxone bill that the legislature passed last session increased access to the drug. Now, some programs throughout the state distribute the substance. However, this bill would make it more accessible.

Additionally, another bill could require insurance companies to pay for special formulas of pain pills that cannot be crushed, even if they are more expensive than a generic brand. This could be a way to help reduce the abuse of pain medication, some supports say.

Even though changes have been proposed in the legislature, current laws have harsh punishments for the possession and distribution of heroin. If you are charged with either offense, you could face series penalties. Contact Columbus heroin defense lawyer Brian Joslyn at (614) 444-1900 to learn more about how to fight heroin charges.

Proposed Ohio Bill Would Allow Concealed Carry Without Permits

Weapons

Ohio legislators have proposed a bill earlier this legislative session that would allow some residents in the state to carry a concealed firearm without a permit and without the appropriate training.

According to Cleveland.com, House Bill 147 would allow anyone age 21 or older in Ohio to carry any concealed firearm not specifically banned by law. This, however, would not apply if the person has been banned from legally possessing a firearm, such as a convicted felon.

The bill, which was introduced last week, would be a significant shift from the existing law. Currently, those who wish to legally carry a concealed firearm must obtain a permit from their local sheriff’s department. Before this can be acquired, he or she must complete eight hours of safety training.

A person could be charged with carrying a concealed weapon under Ohio Rev. Code § 2923.12 if he or she does not have a permit and knowingly carries or has:

  • A deadly weapon besides a handgun
  • A handgun other than a dangerous ordnance
  • A dangerous ordnance

This gun crime currently is punishable as a minor misdemeanor, misdemeanor of the first degree, felony of the fourth degree or felony of the third degree, depending on the specific circumstances of a case. This could mean jail time, expensive fines and more restrictions.

The permit and training processes would not be required if the proposed bill actually became a law. This means a large portion of the population would be able to legally possess a concealed firearm without having to undergo a training process.

The proposed bill also would prohibit law enforcement officers from searching people or seizing the weapon simply because they are carrying a legal firearm. Landlords could not prohibit tenants from carrying or possessing a gun.

Under current law, if a person is carrying a concealed firearm and is stopped by law enforcement, the individual must immediately inform the officer that he or she has been licensed to carry a handgun and currently possesses the gun, according to Ohio Rev. Code § 2923.12(B).

If a person is carrying a concealed firearm and is stopped by law enforcement, according to current law, he or she must not knowingly disregard or fail to comply with any lawful order of the officer while the person is stopped.

Additionally, if a person is carrying a concealed firearm and is approached by law enforcement, the person must keep their hands in plain sight while interacting with the officer. He or she also cannot remove the gun from a holster nor have any sort of contact with the firearm, unless told by the officer to do so.

If a person violates any of these requirements, he or she could be charged with a minor misdemeanor, misdemeanor of the first degree or felony of the fifth degree. In addition, his or her concealed license may be suspended.

All of these requirements can become a little hazy if the bill passes. Once it is not a requirement to have a permit, the way law enforcement officers handle citizens who are carrying concealed weapons could change. Some of the laws will remain the same, including where possession is prohibited.

For instance, possession of a firearm in a school zone, no matter the lack of permit requirement, still is a violation. Carrying a concealed firearm in a courthouse or a building in which a courtroom is located also would be a violation.

If the bill is approved, Ohio would become the sixth state to change its laws allowing more residents to own and possess concealed firearms. For more information about the proposed legislation, read House Bill 147 here.

Proposed Bill Could Increase Prison Sentences for Violent Crimes and Firearm Offenses in Ohio

A bill proposed in the Ohio Legislature is seeking to implement additional prison sentences for repeat violent offenders and those convicted of firearm offenses.

Senate Bill 97, which is sponsored by state Sen. Jim Hughes and Sen. Frank LaRose, will allow the state to actively decrease the number of violent repeat offenders, Hughes said. According to The Daily Advocate, Hughes said the bill would help protect members of society from violent crime.

The Violent Career Criminal Act would classify any adult who has been convicted of at least two violent felonies as a “Violent Career Criminal.” In Ohio, violent felonies could include kidnapping, assault, aggravated assault, voluntary manslaughter, involuntary manslaughter, murder, homicide and robbery.

A  Violent Career Criminal could be someone who within the preceding eight years has been convicted of or pleaded guilty to two or more violent felony offenses that are separated by intervening sentences and are not so closely related to each other and connected in time and place that they constitute a course of criminal conduct.

After being labeled a Violent Career Criminal, if a person commits an additional felony offense, under the proposed legislation he or she would be sentenced to an additional two to 11 years of mandatory prison time upon the discretion of the sentencing judge.

According to the bill, if someone is convicted of a firearm offense and he or she already has a firearm conviction, the mandatory prison term would increase by 50 percent. Some examples of common firearm offenses in Ohio include:

If someone is labeled a violent career criminal, he or she would not be able to own a firearm, according to the proposed bill. They also would not have able to have, carry or use any type of firearm or dangerous weapon. Doing so could mean additional criminal charges and penalties.

Currently, a convicted felon in Ohio is not allowed to possess a firearm. According to According to Ohio Revised Code §2923.13, no person shall knowingly acquire, have, carry or use any firearm or dangerous ordnance, if any of the following apply:

  • The person is a fugitive from justice
  • The person is drug dependent or a chronic alcoholic
  • The person is under adjudication of mental incompetence or has been found to be mentally ill
  • The person is under indictment for or has been convicted of any felony offense of violence or the illegal possession, use, sale, administration, distribution or trafficking in any drug of abuse

The charge of possession of a firearm by a convicted felon is classified as a felony of the third degree. This charge, if convicted, comes with a presumptive sentence of up to 5 years in prison, fines of up to $10,000 or both.

If this bill passes, offenders could face even harsher penalties and more extensive prison sentences. The best way to avoid these drastic consequences is to avoid a conviction. If you are charged with a violent offense or a firearm crime, contact an experience Columbus criminal defense attorney.