Category Archives: Criminal Law
Diversion and ILC in Ohio Felony Cases
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?
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
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.
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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.
Posted in Criminal Law, OVI / DUI / DWI
Tagged dayton ohio, Driving under the influence, DUI, DWI, Operating vehicle while intoxicated, OVI
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Ohio Points for Driving / Traffic Violations / DUS
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 |
Posted in Criminal Law, OVI / DUI / DWI
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Guns, the NFL, and the Second Amendment Rights of Players
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.
