Social Security Disability SSDI / SSI » Criminal Law

Is it a good idea to talk to the cops? Why not?

John Nicholson — Thu, 10 Sep 2009 16:10:39 +0000

People ask us all the time whether they should talk to the cops. Think you can talk yourself out of a ticket, ovi, or a domestic violence? This is an interesting 4 part video of a law professor’s lecture. He is pretty entertaining and the information can be useful to many. The second video deals with trying to talk yourself out of a ticket, ovi, dui, as well as hitting on many interrogation tricks that police use to solicit incriminating information.

Do the police really have to read me my rights?

Ohio Revised Code penalties for misdemeanors and felonies.

John Nicholson — Thu, 10 Sep 2009 16:10:34 +0000

I have noticed several users searching for a felony and misdemeanor maximum penalty chart. I have responded by posting the easy to read chart below …..

Degree of Felony	Prison Term	Fine**
First Degree	three, four, five, six, seven, eight, nine, or ten years	$20,000
Second Degree	two, three, four, five, six, seven, or eight years	$15,000
Third Degree	one, two, three, four, or five years.	$10,000
Fourth Degree	six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months.	$5,000
Fifth Degree	six, seven, eight, nine, ten, eleven, or twelve months.	$2,500

MISDEMEANORS

Degree	Prison Term	Fine**
First Degree	not more than six months	$1,000 max
Second Degree	not more than ninety days	$750 max
Third Degree	not more than sixty days	$500 max
Fourth Degree	not more than thirty days	$250 max
Minor Misdemeanor	none	$150.00 max

DUI / OVI Ohio Penalties

Do the police really have to read me my rights?

Charles Morrison — Thu, 10 Sep 2009 16:10:29 +0000

It happens all the time. A client will walk into my office to discuss a criminal matter and even before I can start the preliminary questioning about the situation, the client exasperatedly proclaims, “the police did not read me my rights.” Usually, the client believes that this is a case-winning fact and one that I ought to care much about. However, the truth of the matter is that the police do not have to read the widely-known “Miranda rights” to each and every person they arrest. And even if they do violate the person’s 5th Amendment rights, this may not have any impact on the ultimate outcome of the case.

The reason is that under current constitutional law, the police only have to read the Miranda rights when they are conducting “custodial interrogation” of the suspect. That is, if the police do not attempt to question the person about a crime, they do not have to advise the person that they have the right to remain silent, to an attorney, and so on. Simply asking an arrestee his name and where he lives would not qualify as “interrogation.” The police must be attempting to elicit inculpatory information from the suspect about a possible crime in order for it to be said the suspect was “interrogated”.

In short, it is only when two distinct criteria are met that the Miranda requirement is triggered: (1) the suspect must be in “custody” (a very fact specific inquiry) and the (2) the police must attempt to question the suspect about a crime they are investigating. If neither of these are satisfied, there is no Miranda violation. For instance, if an arrestee volunteers statements to the police, sometimes done as a last ditch effort to avoid arrest, the police and prosecutor are completely free to use those statements at a later trial, even when the defendant is never Mirandized. Because the police did not interrogate the suspect, but merely listened to what the suspect had to say on his own, one of the two necessary criteria discussed above are absent. Lesson to take from this: it is almost always true that talking to the police is a bad idea.

Furthermore, it is not that uncommon for the police to feel that they have no need to immediately question the suspect due to the fact he or she believes they have all the evidence they need in order to sustain an arrest (and ultimately, a conviction). Perhaps the officer witnessed the crime first-hand, or there are numerous witnesses at the scene who immediately point the finger at the arrestee. In either case, the officer may have no need to question the defendant and, therefore, no need to read the Miranda warnings at all. The bottom line is that not every person arrested has a constitutional right to have the Miranda warnings read to them, but rather only when they are subjected to custodial interrogation.

But this is not the end of the story. Let’s assume that the police in fact engaged in custodial interrogation and failed to properly Mirandize the suspect. This constitutional violation may not have any practical impact on the resolution of the defendant’s case. The remedy available for such a violation is not that the case is dismissed (as many people incorrectly believe), but rather that the statements obtained as a result of the violation will be excluded from trial. If the state has ample other evidence to sustain a conviction, the exclusion of these inculpatory statements will not make much of a dent in the overall strength of the state’s case. The state may not care that these statements are inadmissible given all of the other evidence it can still put before a jury. And this can obviously impact plea bargaining leverage as well. Now, of course, if the state’s case is weak and the statements are really needed in order for it to carry its burden at trial, then the police misconduct ends up being a huge chip that the defense can use during plea negotiations. And in rare cases, if the state’s case is so weak that without the use of the defendant’s statements it can not make out a prima facie case, the case may be dismissed upon motion.

So the next time you here someone complain that they were not “read their rights,” do not get the impression that they are out of the woods.

When can I have my criminal record sealed in Montgomery County?

John Nicholson — Wed, 10 Jun 2009 11:54:49 +0000

Here is an easy to read chart answering a question that is asked weekly by many callers. When can I have my record sealed? If you are looking for information on ILC or diversion click here.

Wait Periods to File Motion to Seal Record
Felony conviction	3 years after final release
No True Bill issued by Grand Jury	2 years after Grand Jury decision
Misdemeanor conviction	1 year after final release
Completed Diversion Program	No wait period, apply after dismissal of case
Dismissal of charge	No wait period.
Completion of TLC or ILC	No wait period.
Found not guilty	No Wait period.

Brought to you by the Ohio law offices of Morrison & Nicholson. Call today for a free consultation about sealing or the expungement of your records at (937) 433–9775.

OVI / DUI in Ohio Facts

John Nicholson — Fri, 05 Jun 2009 15:47:42 +0000

Ohio drunk driving cases are referred to as Ohio OVI (operating a vehicle while intoxicated), Ohio DUI (driving under the influence of alcohol), or Ohio OMVI (operating a motor vehicle while under the influence, impaired, or intoxicated). All of these acronyms relate to the same offense, found in the Ohio Revised Code.

Diversion and ILC in Ohio Felony Cases

Charles Morrison — Sun, 26 Apr 2009 18:04:18 +0000

Most people think that when someone is indicted in Ohio for a felony that there are only two possible resolutions: (1) The person will plead or be found guilty, or (2) the person will be acquitted of the charges. That is not entirely true. Ohio has a couple of alternatives that an attorney could pursue on behalf of a felony criminal defendant. First, the attorney could file a motion for Intervention in Lieu of Conviction (“ILC”). In short, ILC basically allows a person who committed a crime due to their addiction to drugs or alcohol to receive treatment for their substance abuse problems instead of a conviction and prison time. But, ILC is not available for all felony defendants and a given defendant must first be found to qualify for ILC. Ask your attorney whether you qualify (ILC is not available for certain crimes and certain offenders). If the Court accepts the ILC it will then prescribe a particular treatment program for the defendant and suspend the pending criminal action. If the defendant does what the Court demands as far as the treatment goes, the Court will dismiss the charges and the defendant can avoid a felony conviction altogether.

The second possibility is something called “Diversion.” Diversion is similar to ILC in that if the defendant is accepted for diversion and completes the program, then ultimately he or she avoids being convicted of a felony. The defendant is “diverted” out of the criminal court system and given a chance to accomplish certain goals set by the program. If the defendant successfully completes the diversion program, then the Court will dismiss the charges. However, like ILC, only certain charges and certain types of criminal defendants are eligible for a diversion program.

I am clearly guilty of an Ohio Felony or Ohio Misdemeanor, why do I want a Lawyer?

Charles Morrison — Wed, 22 Apr 2009 20:53:07 +0000

People who have been caught “red-handed” in the commission of a felony in Ohio often just want to get the entire thing over and do not want to hire an attorney, believing that because they are so obviously guilty, there is nothing to do but plead guilty or no contest. This is a major mistake.

Attorneys provide value to all criminal defendants, even those that feel there is no point in fighting anything. Because prosecutors know that the average layman will not go to trial and make the prosecutor actually work to prove the defendants guilt, the prosecutors will not offer any reduction in charges (or drop some of the charges altogether), nor will they agree to stipulate to a certain sentence in exchange for pleading guilty. In other words, prosecutor have no incentive to enter into plea bargain discussions with a layman. An attorney on the other hand can threaten trial, which in practical terms, means A LOT OF WORK for the prosecutor and this provides a strong incentive for the prosecutor to work with the defense counsel in reaching some agreement that is much more beneficial for the defendant.

Furthermore, without benefit of counsel, defendants that are eligible for Diversion or “intervention in lieu of conviction” programs will not file the appropriate motions and therefore, these defendants are never considered for these programs. These programs are the best result that a criminal defendant can have short of an acquittal, because if accepted to either one, a defendant can avoid a conviction and criminal record.

The bottom line is that if you have been charged with a felony in Ohio, you need to retain counsel, or ask the court to appoint you counsel because the results are almost guaranteed to be better than if you merely plead guilty. Even if you are obviously guilty, there are benefits to having representation.

DUI / OVI Ohio Penalties

John Nicholson — Fri, 10 Apr 2009 16:10:37 +0000

Below is a list of penalties for an OVI or Operating a Vehicle While Intoxicated, also known as a DUI or DWI. If you have recently been charged with an OVI/DWI/DUI and desire the assistance of an attorney please call the law offices of Morrison & Nicholson at (937) 432-9775 or visit our free online consultation page.

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Administrative License Suspension (ALS)
• If you are stopped for drunk driving and you refuse to take the sobriety test, or if your test results exceed the legal limit of Blood Alcohol Concentration (BAC),
the officer can take your driver’s license on the spot, and the suspension begins immediately.
• Depending on previous offenses or refusals, you can have your license automatically suspended for a period of 90 days to five years.
• The administrative suspension is independent of any jail term, fine or other criminal penalty imposed in court for a DUI offense.

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1st Offense
• Administrative License Suspension (ALS) for a prohibited BAC;
• ALS for test refusal = one year license suspension;
• Jail – Minimum of three consecutive days or 3-day driver intervention program;
• Fine – Minimum $200 and not more than $1,000;
• Court License Suspension – 6 months to 3 years.
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2nd Offense
• ALS for one year for a prohibited BAC;
• ALS for test refusal = two year license suspension;
• Jail – Minimum of 10 consecutive days or five days jail + minimum 18 consecutive days of electronically monitored house arrest combined, not to exceed 6 months;
• Fine – Minimum $300 and not more than $1,500;
• Discretionary driver’s intervention program;
• Vehicle immobilization and plates impounded for 90 days;
• Court License Suspension – 1 year to 5 years.
________________________________________
3rd Offense
• ALS for two years for a prohibited BAC;
• ALS for test refusal = three year license suspension;
• Jail – Minimum 30 consecutive days to one year;
• Alternative sentence – 15 days or Jail + minimum 55 consecutive days of electronically monitored house arrest combined, maximum of one year;
• Fine – Minimum $500 and not more than $2,500;
• Mandatory attendance in an alcohol treatment program paid for by offender;
• Vehicle immobilization and plates impounded for 180 days;
• Court License Suspension – 1 year to 10 years.
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4th or More Offense or Motor Vehicle Related Felony
• ALS for three years for a prohibited BAC;
• ALS for test refusal = five years license suspension;
• Jail – Minimum of 60 consecutive days and up to one year in jail;
• Fine – Minimum $750 and not more than $10,000;
• Mandatory drug/alcohol treatment program paid for by offender;
• Vehicle Forfeiture – Mandatory criminal forfeiture of vehicle operated by offender, imposed by court;
• Court License Suspension – 3 years to Permanent Revocation.

Ohio Points for Driving / Traffic Violations / DUS

Charles Morrison — Fri, 23 Jan 2009 17:34:15 +0000

Ok, here is another handy chart for those of you with recent traffic woes. Many times our office can help with many of the violations below. Feel free to call us for a free consultation at 937-432-9775.

If you are an Ohio driver who accumulates 12 or more points for convictions of the traffic offenses listed below, your license will be suspended for 6 months. If you plead guilty and pay your fine, that is the same as a conviction. Points stay on your license for 2 years after the conviction.

When you accumulate 12 points, the suspension is automatic, although you will be notified of your right to a court hearing. You must petition the court for a hearing. A judge may impose conditions upon your suspension, such as allowing you to drive only for purposes of getting to and from your job. Driving while your license is under suspension can subject you to severe criminal penalties, including jail time.

Upon completion of the 6 month suspension, you must complete a remedial driver education class, provide proof of insurance and take your drivers’ test again before your license will be reinstated.

If you complete an approved remedial driving course prior to accumulating 12 or more points, you will receive a 2-point credit. You can take this course up to 5 times in your lifetime, but no more than once ever 3 years.

6-point violations

•	vehicular homicide, manslaughter or assault
•	drag racing
•	driving with a suspended or invalid license
•	operating a motor vehicle under the influence of alcohol or drugs
•	failure to stop at the scene of an accident (hit and run)
•	fleeing or eluding a law enforcement officer
•	operating a motor vehicle without the owner’s consent
•	using a motor vehicle in the commission of any felony

4-point violations

•	reckless operation of a motor vehicle with willful or wanton
•	disregard for the safety of other persons or property
•	operating a motor vehicle with an unlawful concentration of alcohol while under the age of 21

2-point violations

•	operating a motor vehicle in violation of a restriction imposed by the Ohio Bureau of Motor Vehicles
•	all other moving violations not listed here

points for speeding violations

speed limit	1-5 mph over	6-10 mph over	11-29 mph over	30+ mph over
below 55 mph	0 points	2 points	2 points	4 points
55 mph or more	0 points	0 points	2 points	4 points

Guns, the NFL, and the Second Amendment Rights of Players

Charles Morrison — Mon, 15 Dec 2008 23:55:43 +0000

I’m sure that everyone who follows the NFL has surely heard more than they ever cared to about the recent Plaxico Burress-shoots-himself story. And along with the discussion about his particular situation came a broader discussion about NFL players carrying handguns, and the NFL’s league-wide gun policy, or lack thereof. Unfortunately, one thing that I have seen repeated over the airwaves (I’m talking to you ESPN) is the notion that the NFL is somehow limited in what it can do about its players carrying handguns by the Second Amendment.

Plaxico and his rights

This idea is simply rubbish. The NFL can contractually obligate its players to refrain from carrying handguns without running afoul of any constitutional rights. The reason is that the NFL can never, no matter how hard it tries, violate the constitutional rights of anyone. The most basic of constitutional principles is that the constitution protects people from governmental action, not those of other private individuals or organizations, such as the NFL.

In order for anyone to have a legitimate claim that their constitutional rights were violated, the conduct complained of must have been engaged in by a “state actor” (like the police, the FBI, or the IRS). Absent state action, there simply cannot be a constitutional violation of any sort – with some very limited exceptions where private citizens are acting on behalf of a state actor (like if the police asked your landlord to go into your apartment and confiscate illegal drugs).

So while there are interesting public policy and labor issues surrounding a potential NFL gun policy that it will negotiate with the Players’ Union, there are no constitutional issues anywhere in the picture. The NFL can mandate that players refrain from carrying guns just the same as it can mandate that players refrain from taking steroids.

For a NY Giants fan’s (and criminal defense attorney’s) perspective on the entire fiasco, check out Simple Justice.

Do the police really have to read me my rights?

Immigration Law: How can I adjust my status if my abusive husband won’t help me petition?

Charles Morrison — Mon, 10 Sep 2007 15:10:50 +0000

It is a common problem for abused spouses who are admitted to the US on a finance visa – they are abused by the husband who is a US citizen or Legal Permanent Resident and he will not petition the USCIS to adjust the new wife’s status to that of an LPR. Often the abuser spouse would use the petition process as leverage to further control the immigrant wife and the wife was helpless as she needed the abuser husband’s assistance in petitioning for LPR status. The good news is that the US government addressed this issue a few years back in the Violence Against Women Act (VAWA). The VAWA has a provision where the abused fiance (or wife) can “self-petition” for an adjustment of her status. Therefore, if any immigrant woman is currently suffering from an abusive husband, she is no longer at his will as to whether she will ultimately be granted LPR status. She simply needs to go see an immigration attorney and he or she can assist the woman in adjusting her status without the cooperation of the abusive husband. If you have any questions, feel free to use our online consultation form or call our office at 937-432-9775.