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Archive for August, 2015

Can The Police Use My Statement Against Me?

People accused of crimes often ask: “can the police use my statement against me?” In order for a statement to be used against someone in court, the statement must be voluntary and may also need Miranda warnings prior to the statement being given. A truly voluntary statement is important and valuable, because a confession given under torture or abusive conditions may simply be someone telling their tormentor what he or she wants to hear in order to make the torture stop.   The Fifth Amendment to the United States Constitution gives people the right to remain silent and to be free from being forced to incriminate himself or herself. These rights in the 5th Amendment also mandate that any statements must be voluntary. The Ohio Supreme Court cited the following factors in determining whether a statement is voluntary include: totality of the circumstances, age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of the interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.   (more…)

When The Police Are In Hot Pursuit

What does it mean when the police are in hot pursuit? Generally, when the police are hot on the trail of a fleeing suspect they can pursue him or her.   Any search or seizure is limited by the Fourth Amendment to the United States Constitution, which says: “The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment specifically protects people against the physical entry of their homes. A warrantless entry and search of a private residence is presumptively unreasonable. There are several exceptions to the search warrant requirement: (1) search incident to a lawful arrest; (2) consent signifying waiver of constitutional rights; (3) the stop-and-frisk doctrine (4) hot pursuit; (5) probable cause to search accompanied by the presence of exigent circumstances.   (more…)

Drug Courts

Drug courts can save money by reducing crime and the money spent on resources for individuals charged and convicted of crimes. Rehabilitated offenders are less likely to re-offend, which saves money that would be spent prosecuting such crimes, as well as costs of incarceration.   A drug court is a specialized docket designed to handle cases involving drug-addicted offenders. Individuals that are drug-addicted qualify for the program. Their offenses may directly involve drugs or may be indirectly involved with drugs. The direct offenses include possession of drugs and low-level drug trafficking offenses. Indirect offenses include theft and forgery. Many individuals disqualify themselves by failing to acknowledge the first step to recovery: admitting you have a problem. Often, when asked if they have a problem with drugs or alcohol, they tell drug counselors, drug assessors, probation officers and judges that they do not have a problem. These same individuals may consume over 25 drinks per week, may use marijuana daily or may have lost jobs, marriages, or even their children due to their own use of drugs or alcohol. Because drug addiction is a requirement for the program, their admission to the program, including its many benefits, is denied.  Those who admit they have a problem with drugs or alcohol stand a much better chance of admission to the program.   (more…)

Drug Trafficking

Drug Trafficking is a serious crime that can result in incarceration and other serious consequences.   Drug trafficking is knowingly selling or offering to sell a controlled substance. Drug trafficking is also committed by shipping, transporting, delivering, or preparing a controlled substance for shipment, transportation or delivery when the person has reason to believe the recipient intends to sell the controlled substance. One does not have to receive money for the drugs to be convicted of drug trafficking; a sale can be by barter, transfer or gift. This means sharing drugs with friends is trafficking. A controlled substance is a drug, compound, mixture or substance included in schedule I, II, III, IV or V of the Ohio Revised Code and the United States Attorney General’s Office. The schedules include many prescription drugs.   (more…)

The Difference Between Misdemeanors and Felonies In Ohio

What is the difference between misdemeanors and felonies in Ohio? In most instances, a misdemeanor in Ohio is a crime that is punishable by not more than one hundred eighty days in jail. One cannot be sent to prison on a misdemeanor. Some felonies are punishable by six or more months in prison. All felonies in Ohio are punishable by at least six months in prison. Felonies can be sentenced to local jail time.   Ohio law sets forth the different classes of misdemeanors and their sentencing ranges: a misdemeanor of the first degree is not more than one hundred eighty days in jail; a misdemeanor of the second degree is not more than ninety days in jail; a misdemeanor of the third degree is not more than sixty days in jail; a misdemeanor of the fourth degree is not more than thirty days in jail; and a minor misdemeanor cannot consist of any jail time. (more…)

Negligent Entrustment

If the owner of a vehicle knew at the time he or she allowed the driver to operate a vehicle that the driver was unqualified to operate the vehicle, the owner could be liable for negligent entrustment, also known as wrongful entrustment of motor vehicle. Ohio law states that the owner of a vehicle shall not allow one to drive their vehicle if they know or have reasonable cause to believe that the person: does not have a valid driver’s license; has a suspended driver’s license; or is under the influence of alcohol or drugs. The code lists some more obscure reasons, which can be found here.  When the owner and driver live in the same household and are related to each other, the law assumes that the owner knows that the household member’s driver’s license is invalid.   (more…)

Driver’s License Is Not Needed For Non-Motor Vehicles

A driver’s license is not needed for non-motor vehicles in Ohio. A motorized bicycle is not a motor vehicle. Trailers towed at twenty-five miles per hour or less is not included in the definition of motor vehicles. A motorized bicycle is “any vehicle that either has two tandem wheels or one wheel in the front and two wheels in the rear, that is capable of being pedaled, and that is equipped with a helper motor of not more than fifty cubic centimeters piston displacement that produces no more than one brake horsepower and is capable of propelling the vehicle at a speed of no greater than twenty miles per hour on a level surface. A motorized bicycle does not become a motor vehicle unless it is pulling a trailer.   (more…)

Police Can Make A Warrantless Stop To Give Emergency Aid

The Ohio Supreme Court, in State v. Dunn, ruled that the police can make a warrantless stop to give emergency aid. In this case, the officer received a radio dispatch that there was a suicidal male driving a tow truck who was planning to kill himself. Although the officer did not observe any traffic violations, the vehicle stop was upheld by the Ohio Supreme Court. The Ohio Supreme Court said that the stop was justified under a community caretaking or emergency aid exception to the Fourth Amendment’s restrictions for warrantless searches and seizures. Because police have a duty “to provide emergency services to those who are in danger of physical harm” such stops will often be held to be valid. This exception eliminates the need to show a reasonable basis to rely on the accuracy of a tip, as that standard only applies to investigating suspected criminal activity.   (more…)

No Time Limit On Charging Crimes When One Flees To Avoid Prosecution

There is no time limit on charging crimes when one flees to avoid prosecution. In State v. Bess, the Ohio Supreme Court ruled that Ohio law tolls or stops the running of the statutes of limitations when the offender purposefully avoids prosecution. This applies to crimes that had not yet been charged or even discovered, as long as the offender purposefully avoids prosecution. In this case, Bess learned in 1989 that he was being investigated for raping a young girl. He fled to Georgia and assumed a false identity in order to avoid prosecution. He was indicted later that same year. He remained in Georgia until he was arrested in 2007 and returned to Ohio. During trial preparation, the prosecutor interviewed the girl’s brother and learned for the first time that he too was raped by Bess. A second indictment charged Bess with that rape. Bess was convicted. While there was no question that the State of Ohio could try Bess for rape of the girl, the real question was whether he could be charged and convicted of a crime eighteen years after he purposefully fled to avoid prosecution. The Ohio Supreme Court said that he could be charged and convicted in this manner because he purposefully fled the jurisdiction to avoid prosecution. (more…)

Medical Bills In Personal Injury Cases

How are medical bills in personal injury cases used for reimbursement purposes? Medical bills usually have two rates: (1) the full uninsured rate; and (2) the adjusted rate, or the amount of the bill after the bill is adjusted to the rate according to the agreement between the medical provider and the insurance company. Some like to refer to this second amount as the amount of the bill after the medical provider writes off some of the bill. Which figure does the jury get to hear at trial? The Ohio Supreme Court ruled on this issue in 2006, in Robinson v. Bates. In their decision, the Ohio Supreme Court said that both the amount billed and the amount accepted as full payment could be admitted into evidence. Any difference between the original medical bill and the amount accepted is not a benefit. Because a medical bill is good evidence of the reasonable value of charges for medical services, either version of the bills can be used to demonstrate that value.   (more…)

Automatic Lifetime Registration For Juvenile Sex Offenders Is Unconstitutional

The Ohio Supreme Court has ruled that automatic lifetime registration for juvenile sex offenders is unconstitutional. In their decision, the Ohio Supreme Court ruled that automatically imposing a lifetime registration requirement for a juvenile sex offender amounts to cruel and unusual punishment and violates the juvenile’s right to due process of law. In 2006, Congress passed the Adam Walsh Act, also known as the Sex Offender Registration and Notification Act (SORN). In 2008, Ohio became the first state to adopt a law that followed SORN. When the Ohio Supreme Court reviewed this law in its 2012 decision, it noted that most of the states refused to pass similar laws, opposing the lifetime sex offender registration and notification requirements for juveniles. This national consensus of rejecting automatic lifetime registration requirements for juveniles was the first of two factors the Court used to strike down this portion of the law. The second step was to look at the court’s own independent judgment on whether this punishment violates the Constitution. In doing so, the Court determined that: (1) the lifetime registration requirement was much more likely to hinder than to help juveniles obtain stable employment and reintegrate into their communities after their release from custody; (2) was contrary to past decisions that held that juveniles should be treated as less morally capable than adults; and (3) was contrary to the juvenile justice system’s primary purpose of rehabilitation rather than punishment. This analysis led the court to conclude that the severity of lifetime registration and notification and lack of adequate justification renders it cruel and unusual under the eighth amendment to the United States Constitution. The law also denied due process because it is automatic and does not allow the court to consider the child’s background or how publication of the offense might affect rehabilitation.

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Slip And Fall Personal Injury

In many personal injury cases, there is no question as to whether someone is liable for injuries caused in an accident. When someone hits someone from behind or veers into oncoming traffic and hits another car head-on, we can all agree that these individuals will usually be liable for any resulting injuries.   In slip and fall personal injury cases, liability for the injury is not always so clear. The owner of the premises must be negligent in maintaining the premises. This means there is some defect in the premises. The defect could be a hole in the ground, a slippery surface, or unstable steps. However, negligence alone will not win the case. If the defect was open and obvious, the injured person cannot recover for his or her injury. In some cases, this makes perfect sense. If the owner spots a hole and immediately puts posts and yellow warning tape around the hole, the owner has rendered the defect open and obvious. In many circumstances, the owner would not be liable if someone were to fall into the hole. Because people should be able to see the hole, they should be able to avoid it. What if the owner did this in an unlit portion of a parking lot? If the injured person could not reasonably see the warning, then the defect would no longer be open and obvious.   (more…)

Suspended Driver’s License in Ohio

What do you do if you have a suspended driver’s license in Ohio? The solution starts with determining what event caused the driver’s license to be suspended. Once the cause is determined, one may be able to figure out the reinstatement requirements. It is also important to know what can happen if one is convicted of driving under a suspended driver’s license. Ohio BMV’s website can be found on my links page, along with a number of other important links.   How does one’s driver’s license get suspended in Ohio? A judge can order the suspension as part of your sentence for a crime. Such crimes include drug possession, drug trafficking, possession of drug paraphernalia, OVI, hit-skip, fleeing and eluding, or driving under suspension. The Ohio Bureau of Motor Vehicles (BMV) imposes suspensions for failure to show proof of insurance either during a traffic stop or after random selection by the BMV to show proof of insurance. This suspension is known as a non-compliance suspension and is covered under Ohio’s Financial Responsibility Act.   (more…)

Two Trials May Be Required In Some Personal Injury Cases

The 2005 Ohio Tort Reform Law requires Ohio courts hearing personal injury lawsuits to grant requests for bifurcation of trials when both compensatory and punitive damages are sought. In other words, two trials may be required in some personal injury cases. The constitutionality of the tort reform law was challenged in a case called Havel v. Villa St. Joseph. Ordinarily, the Ohio Supreme Court gets to make the rules and judges get to decide whether to bifurcate a trial. The Ohio Tort Reform Law was basically the legislature telling the judicial branch how to run their courtrooms during personal injury trials. The Ohio Supreme Court ruled that the bifurcation requirement created the right to demand a bifurcation. The Ohio Supreme Court noted that the General Assembly intended to reform punitive damages law in Ohio in order to restore balance, fairness, and predictability to the civil justice system. The law was designed to prevent juries from considering evidence of misconduct in determining liability and compensatory damages.   (more…)

Search Of Abandoned Property Admissible

In State v. Gould, the Ohio Supreme Court held a search of abandoned property admissible when it held that the police can search an abandoned hard drive. The suspect in this case had left a hard drive behind in his apartment in August 2006. When he left the apartment, he stole a truck belonging to his brother, who was also his roommate. He also concealed himself until he was arrested in Michigan in June 2007. The suspect never asked about the hard drive and never tried to get it back. The Ohio Supreme Court ruled that these actions amounted to abandonment of the hard drive. Because the property was abandoned, the police were free to search the hard drive when the suspect’s mother turned it over to them.   (more…)

Intervention In Lieu Of Conviction

Intervention in Lieu of conviction is a program that allows one charged with a crime to obtain a dismissal at the conclusion of the program. In order to be eligible, drug addiction, alcohol addiction, or mental health issues must have played a part in the commission of the offense. The program focuses on treating, rather than punishing, the problem.   Once the charges are dismissed, the record is not sealed off from the public. The arrest record likely still exists. In order to wipe the docket and arrest from the record, one must file to have those records sealed and expunged. When can this record be expunged? Does one have to wait one year for a misdemeanor or three years for a felony? The Ohio Supreme Court addressed this question in State v. Niesen-Pennycuff. In this case, the Ohio Supreme Court held that, because the charges are dismissed at the conclusion of an intervention in lieu of conviction program, there is no conviction. The waiting periods only apply to convictions. Therefore, expungement of the docket and arrest is available immediately. However, the Ohio Supreme Court decided that, just because trial courts can immediately grant a request for expungement, it does not mean that they must. The trial courts could impose their own waiting period, even if the waiting period is as long as those for eligibility for expungement of convictions. A skilled criminal defense attorney, such as this Akron criminal law attorney near Barberton, can help one navigate the different situations and courts. (more…)