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Criminal Defense

Will Ohio Lower DUI Limit To .05

Will Ohio lower DUI limit to .05?  In March 2017, Utah’ legislature set up the state to become the first state to lower the legal threshold for drinking and driving to .05 blood alcohol concentration.  While states are looking to get more aggressive with DUI laws, such efforts can result in problems in the actual application of the law.  This articles examines the law and the impracticality of enforcing the law on the street and in the courtroom.


Proposed DUI Law Criticized


Critics have said the bill fails to address the real problem, which are the 77% of alcohol-related traffic deaths in Utah caused by drivers with a blood-alcohol content of 0.15 and above.  The proponent of the law said the problem with the 0.08 BAC law is that “it send the message that you can drink up to a certain point and then drive.”  The proponent then noted that several foreign countries have a 0.05 limit. 


Proposed DUI Law Problems


The field sobriety tests were designed to determine if someone is at a 0.10 BAC or above.  When states lowered the limit to 0.08, that already signaled a move away from criminalizing driving under the influence and towards outlawing drinking and driving.  A 0.05 BAC limit is simply another step in that direction.  Someone at 0.05 could very well pass the field sobriety tests.  If the person is not under the influence of alcohol, can that person be arrested?  If the person cannot be arrested, the request for a breathalyzer does not occur. 


Attorney Daniel Gigiano.  Experienced.  Aggressive.  Dedicated.


Attorney Daniel Gigiano was admitted to the practice of law in Illinois in 1993.  He immediately began practicing as an assistant prosecutor working in a courtroom that focused on major traffic cases, such as DUI and driving under suspension, spending over one year focusing on the many issues in these cases.  Attorney Daniel Gigiano then spent the next five years of his government practice working on misdemeanors, felonies, grand jury and preliminary hearings, juvenile delinquency cases, and abuse and neglect cases.  In 1999, he was admitted to practice in Ohio.  In 2000, he took his experience to a private practice in Wadsworth, Medina County, Ohio.  Attorney Gigiano has maintained his private practice in Wadsworth since that time.  Call now at 330-336-3330 if you need the services of an experienced Medina criminal defense attorney in Wadsworth.

Ohio Public School Student Searches

When Ohio public school student searches occur, those Ohio students are protected by the Fourth Amendment to the United States Constitution.  The Fourth Amendment protects people in the United States from unreasonable searches and seizures.  Students can be searched if there are reasonable grounds for suspecting the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.    


Ohio Felony Sentencing

Ohio felony sentencing laws place most Ohio crimes into five classes.  These range from the lowest (fifth degree felony) to the highest (first degree felony).  This article will focus on the basic sentencing scheme.  This article will not discuss specialized Ohio felony sentencing laws, such as the death penalty, life imprisonment, and mandatory additional prison time.  Rape and murder are crimes that fall into such specialized Ohio felony sentencing laws. 


Ohio Felony Sentencing

Ohio felony sentencing laws place most Ohio crimes into five classes.  These range from the lowest (fifth degree felony) to the highest (first degree felony).  This article will focus on the basic sentencing scheme.  This article will not discuss specialized Ohio felony sentencing laws, such as the death penalty, life imprisonment, and mandatory additional prison time.  Rape and murder are crimes that fall into such specialized Ohio felony sentencing laws. 


Ohio Cell Phone Search Requires Search Warrant

Apple and the FBI have gotten a lot of attention lately on the government’s power to search cell phones.  Apple refused to unlock its phones and FBI figured out how to do it by themselves.  Long before this battle ensued, the Ohio Supreme Court issued the following decision: Ohio cell phone search requires search warrant



Police Cannot Search Legally Parked Cars Without A Warrant

In 2016, the Ohio Supreme Court issued a ruling that declared that the  police cannot search legally parked cars without a warrant.  The arrest of an occupant of the vehicle does not, by itself, give the police authority to search legally parked vehicles.



Misdemeanor Concurrent Sentences Mandatory

When one is sentenced on both a felony and a misdemeanor, the Ohio Supreme Court has determined misdemeanor concurrent sentences mandatory with felony sentences. In a decision entered recently this year, this Ohio Supreme Court resolved conflicting opinions among the lower courts on this issue.  Consecutive sentences are served one right after the other, with no double credit for any of the time served.  Two six month sentences would add up to a year if they ran consecutive to one another.  Concurrent sentences are served at the same time.  Two six month sentences would add up to only six months if they ran concurrent to one another.


New Ohio Criminal Mental State Requirements

In 2014, the Ohio Legislature passed into law new Ohio criminal mental state requirements. This new law required any criminal laws passed after December 19, 2014, to contain a mental state or a guilty mind as an element of the offense.  This means the new crime must include the requirement that the accused committed the act recklessly, knowingly or intentionally.  Acting recklessly, knowingly or intentionally is acting with the mental state required as part of the offense.


Ohio Appeal Rights

If you do not like the ruling at trial, you may have Ohio appeal rights, which is the right to appeal the trial court’s decision.  

Ohio Appeal Rights To Appeal The Magistrate

    If the trial or hearing was heard by a magistrate, you have the right to appeal the magistrate. If the magistrate issued an order, you have the right to ask the judge to set the order aside.  This must be filed within ten days of the order.  Filing this motion does not automatically stop the order from taking effect.  If the magistrate issued a decision, you have the right to object to the decision.  The objection automatically stops enforcement of the decision.  Unfortunately, this includes the parts you may like along with the parts to which you have objections.  The objection must be filed within fourteen days of the filing of the magistrate’s decision. (more…)

Rights Of Students In Public Schools

Do juveniles have the same rights as adults? Generally yes, but such rights are balanced against protecting the juvenile from himself or herself as well as keeping schools safe.  This article focuses on the rights of students in public schools.


Pay To Stay In Jail

Many county jails in Ohio have a pay to stay in jail policy. The ACLU issued a report on this practice, stating that this burdens a population that likely cannot afford such fees in the first place.  Potential fees include booking fees and daily lodging fees.  According to the report, the jails in Holmes County, Medina County, Cuyahoga County, Ashland County and Summit County do not charge any of these fees.  The Wayne County jail was listed a charging a $10 booking fee but no daily fees.  The counties that offer work release as an option usually charge daily work release fees.  A work release pay to stay program may not have the same concerns cited by the ACLU because the inmates are being given the opportunity to earn amounts greater than the cost of their stay in jail.   (more…)

Filler Weight Is Included In Drug Cases

Filler weight is included in drug cases. Believe it or not, it is illegal to possess and sell fake drugs in Ohio.  Fake drugs are officially referred to as counterfeit controlled substances.  While a controlled substance is usually part of a class of illegal or strictly regulated substances, a counterfeit controlled substance is a non-controlled substances that a reasonable person would believe to be a controlled substance because of its similarity in shape, size, color, markings, labeling, packaging, distribution, or price.   (more…)

Should Filler Weight Be Included In Ohio Drug Cases

  Should filler weight be included in Ohio drug cases? Many drug offenses are based on the weight of the controlled substance found in the suspect’s possession. However, the tests performed by the Bureau of Criminal Investigation (BCI) do not test for the purity of the substance. When cocaine is cut with sugar or some other filler material, should the level of offense be based on the actual weight of the cocaine or the total weight of the cocaine and filler?  Most appellate districts in Ohio have ruled that the total weight of the controlled substance and filler can be used.   (more…)

Juveniles Can Be Tried As Adults In Ohio

A child under 18 years of age would ordinarily have his or her case heard in juvenile court. In order to try that child as an adult, the child must have been 14 years old or older at the time of the offense.  As long as the age limit and certain other criteria are met, juveniles can be tried as adults in Ohio.   (more…)

Can An Ohio Police Officer Arrest Someone Outside Their Jurisdiction?

Can an Ohio police officer arrest someone outside their jurisdiction? A police officer cannot arrest someone for a crime committed outside of their jurisdictional limits.  The question is what their jurisdictional limits are.  The state highway patrol and sheriffs or their deputies have the power to make arrests for violations on all state highways, but only for certain listed offenses.  Generally, all other police officers are limited to the area they were elected or appointed to serve.  Township police officers who are not commissioned peace officers cannot enforce traffic laws on any state highway.  Commissioned peace officers serving a township with a population of 50,000 or less cannot exercise their powers on interstate system highways.  Out of town officers hired or appointed by the local department have authority in that area for that limited time.   (more…)

Ohio Maximum Prison Terms And Jail Time

What are the Ohio maximum prison terms and jail time? While there are a number of offenses that carry life in prison, the death penalty, or are subject to enhanced penalties or reduced maximum penalties, this article will focus on the ten basic levels of offenses in Ohio.   The Ohio sentencing classifications from most severe to least severe are: first degree felony (3-10 years in prison); second degree felony (2-8 years in prison); third degree felony (1-5 years in prison); fourth degree felony (6-18 months in prison); fifth degree felony (6-12 months in prison); first degree misdemeanor (up to 6 months in jail); second degree misdemeanor (up to 90 days in jail); third degree misdemeanor (up to 60 days in jail); fourth degree misdemeanor (up to 30 days in jail); minor misdemeanor (up to a $150 fine but no jail time).   (more…)

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…)

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