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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…)

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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Long Term Care Insurance’s Role in Medicaid Planning

Many seniors will be faced with the need for long-term care. The costs of long-term care can be devastating to the spouse living at home, depleting the savings accumulated over a lifetime in just a few years. Medicare only fully covers 20 days of skilled nursing care after a three day stay in a hospital. After the first 20 days, Medicare pays only a small part of the skilled nursing bill for another 80 days. Medicare pays for hospice services such as counseling and pain management medications, but not for hospice room and board. As you can see, Medicare benefits run out quickly, resulting in a shift to Medicaid. However, Medicaid limits how much one can keep and still qualify for benefits. Because Medicaid is a program to provide health care to the poor, one must be poor to qualify.   (more…)

What Is Extradition?

What is extradition? Extradition is a procedure where a person in one state is surrendered to another state in connection with separate criminal proceedings. Usually, that person has fled the state to avoid prosecution, sentencing or incarceration. A person who flees prosecution or sentencing is called a fugitive.   One the fugitive is arrested, he or she can either request a hearing to contest the extradition or can waive the right to this hearing. If the fugitive waives the right to a hearing, he or she will be available for return to the state that issued the warrant. (more…)

Divorce And Dissolution

How do divorce and dissolution differ from one another? A dissolution is an agreement to terminate the marriage, with an agreement on how to divide their assets and debts, as well as agreement on child custody, child support, parenting time and spousal support. In order to have a dissolution, the parties must agree on all of the issues. Paperwork is filed and the matter is resolved in a single hearing. The dissolution process is usually completed within two to three months after filing.   When the parties cannot agree on all of the issues, but wish to terminate the marriage, they must do so with a divorce. One of the eleven grounds for divorce must be alleged. Incompatibility cannot be proven, but must be agreed upon by both parties in order to be used as a ground for divorce. Divorce usually consists of temporary orders hearings, case management hearings, pre-trial hearings, and final hearings (trials). The final hearing does not usually occur until at least nine months after filing and sometimes well over one year after filing.   (more…)

What Is Mediation?

What is mediation? Mediation is a process in which two or more parties negotiate a voluntary agreement with the help of a mediator. The mediator facilitates communication between the parties. Statements made during mediation are protected under Ohio’s Uniform Mediation Act (UMA) as set forth in Ohio Revised Code 2710.01-2710.10 (R.C. 2710.01-2710.10). This privilege gives one the ability to stop other people from revealing what was said at a mediation. Does this mean everything said in a mediation is protected by privilege? No. The following topics are not protected by privilege under the UMA: discussions disclosing abuse or neglect of children and abuse or neglect of the elderly; plans to commit crimes; threats of violence; whether a mediation occurred; and signed settlement agreements. Mediators are neutral third parties who assist the parties with issue identification and problem solving. The mediator will usually meet with each side separately, but some mediation sessions are held with all the parties present face-to-face. Mediation is a useful tool used in several areas of the law, including civil cases, child custody cases, divorces, foreclosures, and abuse, neglect and dependency cases. If the parties do not reach an agreement, the mediator may schedule a follow-up session or may report to the court that an agreement was not reached.   (more…)

Minimum Amount Of Child Support

Is there a minimum amount of child support that a court must order?  Yes, there is.  Courts usually order guideline support, which is the amount of support calculated under the child support guidelines.  However, Ohio Revised Code 3119.06 (R.C. 3119.06) requires the court to order a minimum child support order of $50 per month.  If the person is not working and receiving needs-based assistance, then, while the arrearages accrue, the obligation to pay child support is suspended as long as the person is complying with a seek-work order.   Even though the statute says that is the lowest amount, is it?  No.  Ohio law also allows the court to order one to pay less than $50 per month or not require any child support if the parent ordered to pay has a medically verified or documented physical or mental disability or institutionalization for mental illness.   (more…)

Courts Impute Income For Child Support

Courts impute income for child support.  This means that the court will determine that you should make a certain amount of income even if you do not.  How does the court do that?  The court considers employment history, education, physical and mental disabilities, availability of employment in the area, typical wages in the area, skills and training, whether the person has the ability to earn the imputed income, the age and special needs of the child, and experience in the field.  Basically, the court will impute income if a parent voluntarily reduces income or loses a job.  If the income loss or reduction was involuntary and the person cannot easily obtain another job at the same income level, then the court may accept the person’s current income level for child support purposes.   (more…)

Bankruptcy Is Constitutional

Did you know that bankruptcy is mentioned in the United States Constitution?  In other words, bankruptcy is constitutional.  The United States Constitution states:  “[The Congress shall have Power] to establish . . . uniform laws on the subject of Bankruptcies throughout the United States.”  Look it up!  U.S. Constitution, Art. I, Section 8, clause 4.   The Framers wanted to ensure that there would be a uniform system of bankruptcy so that one state would not put someone in debtor’s prison for a debt that was discharged in another state.   (more…)

Medicaid Eligibility For Long-Term Care In Ohio

How does one determine Medicaid eligibility for long-term care in Ohio?  First, we should differentiate Medicaid from Medicare.  Medicare is insurance.  Medicaid is a need-based program.   Need-based programs are aimed at individuals who cannot afford to pay for the services themselves.   In order to qualify for Medicaid, an individual must qualify for all three of the following:
  1. Categorical eligibility;
  2. Countable income must be at or below a certain level; and
  3. Countable, available resources must be at or below $1,500.
  Categorical eligibility.  An individual can be eligible for Medicaid to pay for nursing home care only if he or she is 65 or older, blind, or disabled.  If the person meets the nursing facility level of care, that person is presumed to be disabled.  The nursing facility level of care depends on the individual requiring:  hand-on assistance with two activities of daily living; hands-on assistance with one activity of daily living and assistance with medications, supervision 24 hours per day to prevent harm, skilled care at less than skilled level, and skilled care at skilled level.   (more…)

What Do Those Words In My Child Support Order Mean?

There are a lot of technical terms in a child support order that can lead a parent to ask, “What do those words in my child support order mean?”   Ohio Revised Code 3119.01 (R.C. 3119.01) defines a substantial number of these terms.  Lets take a look at some of the terms.   Obligee means the person who is entitled to receive the support payments under a support order.   Obligor means the person who is required to pay support under a support order.   Extraordinary medical expenses means any uninsured medical expenses incurred for a child during a calendar year that exceed one hundred dollars.   (more…)

What Factors Does A Court Use To Decide Child Custody?

What factors does a court use to decide child custody and parenting time?  The following from Ohio Revised Code 3109.051 (R.C. 3109.051) sets forth the factors:  
  1. The prior interaction and interrelationships of the child with the child’s parents, siblings, and other persons related by consanguinity or affinity, and with the person who requested companionship or visitation if that person is not the parent, sibling, or relative of the child;
  2. The geographical location of the residence of each parent and the distance between those residences, and if the person is not a parent, the geographical location of that person’s residence and the distance between that person’s residence and the child’s residence;
  3. The child’s and parents’ available time, including, but not limited to, each parent’s employment schedule, the child’s school schedule, and the child’s and the parents’ holiday and vacation schedule;
  4. The age of the child;
  5. The child’s adjustment to home, school, and community;
  6. If the court has interviewed the child in chambers, pursuant to division (C) of this section, regarding the wishes and concerns of the child as to the parenting time by the parent who is not the residential parent or companionship or visitation by the grandparent, relative, or other person who requested companionship or visitation, as to a specific parenting time or visitation schedule, or as to other parenting time or visitation matters, the wishes and concerns of the child, as expressed to the court;
  7. The health and safety of the child;
  8. The amount of time that will be available for the child to spend with siblings;
  9. The mental and physical health of all parties;
  10. Each parent’s willingness to reschedule missed parenting time and to facilitate the other parent’s parenting time rights, and with respect to a person who requested companionship or visitation, the willingness of the person to reschedule missed visitation;
  11. In relation to parenting time, whether either parent previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or neglected child; whether either parent, in a case in which a child has been adjudicated an abused child or neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; and whether there is reason to believe that either parent has acted in a manner resulting in a child being an abused child or a neglected child;
  12. In relation to requested companionship or visitation by a person other than a parent, whether the person previously has been convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or neglected child; whether the person, in a case in which a child has been adjudicated an abused child or neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication; whether either parent previously convicted of or pleaded guilty to a violation of section 2919.25 of the Revised Code involving a victim who at the time of the commission of the offense was a member of the family or household that is the subject of the current proceeding; whether either parent previously has been convicted of an offense involving a victim who at the time of the commission was a member of the family or household that is the subject of the current proceeding and caused physical harm to the victim in the commission of the offense; and whether there is reason to believe that the person has acted in a manner resulting in a child being an abused child or a neglected child;
  13. Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s rights to parenting time in accordance with an order of the court;
  14. Whether either parent has established a residence or is planning to establish a residence outside this state;
  15. In relation to requested companionship or visitation by a person other than a parent, the wishes and concerns of the child’s parents, as expressed by them to the court;
  16. Any other factor in the best interest of the child.
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Daniel Gigiano Ratings

Attorney ratings come in many forms.  Numerous sites provide ratings.  Yelp is a traditional rating model, where one can find ratings for all types of businesses, including attorneys.  Google Plus has a similar model.  Facebook is another general source that can contain reviews and also lets one see how many people “liked” the business.  The phone book in its physical paper format may be declining, but their online presence is alive and well.  YP (Yellowpages), Dex, Superpages provide valuable information about local businesses, including attorneys.  Some sites appear to gather information from other sites in order to portray a complete set of reviews and profile of the business.  These sites include: Yellowbot and Birdeye.  Finally, there are a number of attorney-specific websites that will provide ratings of attorneys.  Avvo provides a number rating that is not based upon client evaluations, but is based upon a combination of different criteria; Avvo does display reviews from other attorneys and from clients.  Other sites simply provide a compilation of client reviews, including: Lawyers.com, Lawyerratingz, and Martindale. (more…)

Jackson Township DUI Attorney

Daniel F. Gigiano, Wadsworth OhioWhen someone receives a DUI citation in Jackson Township, that person will need the services of a Jackson Township DUI attorney.  A Jackson Township OVI lawyer does not necessarily have an office in Jackson Township but has the familiarity and experience to handle such cases in Massillon Municipal Court, Stark County Court of Common Pleas, and Stark County Juvenile Court, where misdemeanor, felony and juvenile DUIs are handled. (more…)

Daniel Gigiano Reviews

Positive reviews come from positive results.  In reviewing an attorney, one should look for client reviews, peer reviews (reviews from other attorneys), results (in an accomplishments or case highlights section), and experience.  At the end of the day, it is important to have an attorney who has the skills to help you get the results you deserve.  Clients and opposing attorneys have submitted favorable Daniel Gigiano reviews.  This comes from hard work and dedication to my client’s cases.  I started off prosecuting dozens of jury trials as an assistant prosecutor.  I took that experience into private practice, winning the first criminal defense case that I took to a jury trial in 2000.  It was an assault case that not only resulted in a not guilty verdict, but the victim was established as the instigator of the entire incident.  I continued to be aggressive, winning a DUI case in 2002, a felony drug case in 2002, forcing the State of Ohio to dismiss over 100 felony counts against my client in 2003, winning a felony theft of a motor vehicle case in 2007, obtaining a dismissal of a DUI case in 2007, winning a sexual imposition case in 2011, and winning an assault case in 2015.  These are not the only cases I tried, as I have tried approximately 40 jury trials to a verdict as both an assistant prosecutor and in private practice.  I also persuaded the Ninth District Court of Appeals to reverse a permanent custody ruling against my client, creating a new rule for the courts to follow in a case commonly referred to as In Re A.P. II.  This new rule won the day for my client who was allowed to reunite with the child.  I have also helped other people in children services cases, obtaining a dismissal in 2012, and preventing a children services case and criminal charges from being filed in 2014.  Add to this the removal of six figures of mortgages while allowing the clients to keep their home in bankruptcy, as well as handling large bankruptcies, including one business bankruptcy that had over one million dollars in debt. (more…)

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