Category: DUI Penalties

What Is Probation Like?

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Probation and Community Control

Probation in Ohio is now called “community control.” It provides for terms and conditions you must comply with in order not to go to jail.  The system requires you to work with a “probation officer” (P.O.) for a given period of time as set by the court.  A common misconception is that the probation officer will actively work against you in an effort to return you to jail.  Most of the time, the probation officer is working to make sure you comply with the court order and stay out of jail.  It is up to you to show up and make sure the probation officer is kept aware of your circumstances.  You should maintain contact with your trial attorney as may problems can be solved if there is good communication.

Most experienced attorneys can advise you about how to navigate the courts probation department and successfully complete probation. Under Ohio law, you cannot demand to serve jail time instead of being placed on community control in misdemeanor OVI cases, see State v. Walton (2000), 137 Ohio App. 3d 450, 457 — “…(A) misdemeanor offender has no right to refuse probation and to demand to serve her sentence of imprisonment.” Unlicensed driver was headed to prison for eight months and wanted six month traffic sentence served concurrently. Instead, the judge put her on probation. Experienced attorneys can help. If you need treatment, your attorney can have you do it prior to being placed on probation. Likewise, if you need to fix license issues.  These are the little things that make a difference in your court case.

When Do I Get Off Probation?

Often, a court will only keep you on probation until you have paid all fines and costs and complied with the requirements of your punishments.  In DUI/OVI cases, the probation department is responsible for setting up the 72 hour Driver Intervention Program and will make sure you attend and complete the program.  Work with your Ohio DUI attorney to learn about how to comply with the terms and conditions of probation (now called “Community Control Sanctions”).  Depending on the court, you may face any or all of the following probationary conditions:

  • No new DUI or serious traffic arrests;
  • Alcohol Assessment and/or Follow Up Alcohol Counseling;
  • Random Urine Screens;
  • Restrictions on driving times;
  • No “Refusals” of blood, breath, or urine tests if arrested for DUI;
  • No odor of alcohol while driving a vehicle;
  • Pay fines and court costs;
  • Attend MADD’s Victim Impact Panel;
  • Attend probation officer meetings;

In addition a court may require you to install Ignition Interlock (breath tester in the vehicle); Continuous Alcohol Monitor (ankle bracelet); Restrictions on travel outside of Ohio or the county; Electronic Home Monitoring or House Arrest; Work-Release or Community Service.  As you can see, the probation department and your probation officer have a great deal of power over your life while you are on community control.  Your DUI attorney should be a continued resource available to help you with issues that arise while on community control.

What Happens If I Violate The Terms of Probation?

probationIf you have been arrested for violating probation, you will have a hearing in front of  the judge. Since you have already been sentenced to probation for committing a crime, you will not be entitled to a jury to determine whether or not you have violated the terms of your probation.  The sentencing judge will hear the facts of your alleged violation, and determine if you did in fact violate any of the terms or conditions. A probation violation is not like a new criminal charge, you can be forced to testify against yourself and witness testimony can be used against you.  In most courts violations of the terms of your probation are very serious matters.  Unlike criminal matters, prosecutors are not bound by the “beyond a reasonable doubt standard.

Under Ohio law, prosecutors need only show that there exists a “preponderance of the evidence” that a violation has occurred. This means they only have to prove that it is more likely than not that you violated probation.  You should be aware of the terms.  Ask questions if you have any confusion.  A violation of technical terms (such as changing your address without informing the court, failing to pay on time and not showing up for your probation appointment) are as serious as the violation of a more substantive term.

Being charged with a new crime can result in a revocation of probation even if you are not convicted due to the lower preponderance of the evidence standard.  You could not only face jail time on the new charge, but face the time previously suspended from your earlier offense.  The charges need not be in the same court to invoke the court’s community control jurisdiction.

Contact Charles Rowland at (937) 318-1384

 

Dayton DUI – No Expungements

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Dayton DUI

Choose Dayton DUI at (937) 318-1384

One of the reasons I am proud to defend Dayton DUI cases, is that these cases are unduly stigmatized.  For example, if you punch someone in the nose your friends will say, “Wow, what happened?” If, however, you say you were charged with a DUI, they will say, “Oh, I’m sorry.”  It is this assumed guilt that is like no other criminal offense.  It erodes at our Constitutionally guaranteed right to be presumed innocent. What makes this presumption particularly frustrating is that DUI cases are notoriously hard for the prosecution to prove. An experienced attorney can find multiple defenses.  I look at the stop, the decision to remove you from the car, the administration of the field sobriety tests and the totality of the circumstances leading to your arrest. In addition, we apply the science. If you test, there are a myriad of ways to fight a chemical test.

The current expungement law makes choosing the right Dayton DUI attorney of paramount importance. 

Another reason to make Charles M. Rowland II, Dayton DUI, your first choice for DUI defense is that Ohio does not allow expungements in drunk driving cases.  If you make a mistake when you are a young person, the stigma of a DUI conviction will follow you for the rest of your life. In 2014, Ohio decided to expand the ability of Ohioans to apply for an expungement and get a fresh start. It was decided that DUI offenders did not deserve a break under the new law.

I have been fighting for the accused drunk driver since 1995. I have the experience and credentials necessary to fight and win your case. When you come for your free consultation, I will give you a real price and a real plan.  If you hire me, you get me at every stage of your case – not an associate. You get my 24 hour number and you get a staff that is 100% dedicated to DUI defense. Need more information? Call me at (937) 318-1384 or, to learn more, visit www.DaytonDUI.com.

 

The Drug War Theory -Jus Ad Bellum?

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The Just War Theory (hereinafter JWT) is a subset of moral philosophy that addresses the questions about the moral justification for going to war (jus ad bellum) and the moral constraints on conduct within war (jus in bello). The theories underlying the JWT are illustrative of the rules used by attorneys in conducting the prosecution and defense of criminal defendants.  The five rules or requirements set forth to justify governmental aggression are: just cause, last resort, proportionality, right intention and right authority.

In war theory, the most basic rule of aggression is that one may only aggress if one has just cause. Once the legislative authority decides to proscribe certain conduct as being “criminal,” the rules of the Constitution, and the ethical rules of practice create a just cause for imposing the power of the government upon an individual citizen. So greatly do we prize our liberty that we have come to expect a trepidation in using the power of the State against the individual, that we follow the rules of JWT that aggression (in this case creating a category of crime) should be the last resort.  If another plausible alternative to government prohibition exists, the underlying theory supporting the State action is morally questionable. 

Let us now apply JWT to the current War on Drugs being practiced in ernest.  Is it morally justifiable to use aggression, via legislation, against drug users?  Many proponents of reform suggest that treating drug users as criminals is not morally justifiable.  Instead of using the power of the State to put these people in prison, the proper response is to shift the focus of State intervention to treatment.  In many countries in Europe, the State has taken the treatment approach with amazing results.  Ad bellum proportionality requires the aggression to be proportional to the harms caused to society.  The success of these programs calls into question the ad bellum proportionality of sending people to prison for long sentences, depriving their families of their support and causing a generational punishment.  It was the philosopher John Locke that sought to limit our “right to punish” because humans naturally tend to underestimate the injuries they cause others and to overestimate the injuries others cause to them.

As the War on Drugs progressed, it became apparent that it was having a disparate effect on poor communities and communities of color. The racist impact of the laws create a problem for Just War Theorists.  It was Thomas Aquinas who said that, “It may happen that a war is declared for a just cause… and yet be rendered unlawful through a wicked intention.” see his Summa Theologica I, questions 18-21; for Aquinus on war, see ST II, question 40.  Many have concluded that the justice of the aggression was diminished or nullified by the racist ulterior motives.  Putting more African-American men in prison than were ever held is slavery violates the ad bellum rule of right intention.  The War on Drugs was also a war conducted not in the eyes of the public, but in the secretive world of prosecutorial discretion. The motives of local officials are not divorced from the passions of the community, nor are the subject to the oversight of the legislature. Instead, the ad bellum rule of right authority is called into question because of how we allowed the War on Drugs to be prosecuted.

According to traditional JWT, resorting to aggression is justified if and only if all conditions supporting the action are present.  If even one of these requirements are not met, the actions of the aggressor (in this case the government) are not morally permissible.  I think that strong arguments exist that would make prosecution of the War on Drugs wrong.  Apologists for the War on Drugs appeal to the morally important ends at stake – protecting our children from addiction and our communities from violence. But these arguments are undermined at every turn by not only the failure of the War on Drugs but by the failure to justify the continuation of the failed policies when clear alternative exist.

Having raised significant questions about the jus ad bellum justification for the War on Drugs, let us now turn to the method in which the “war” was being and is being prosecuted, to wit the jus in bello analysis.  Just as it is incumbent upon aggressors to weigh the costs and benefits of aggressing in the first place, they must also take care to ensure that their actions within the War on Drugs are proportionate.  Thus, are their beneficial consequences of aggression outweighed by the known and quantifiable harms.  Judges have to ask if weakening the Constitution to make prosecution of drug crimes easier is outweighed by the detrimental effects to our society.  Police officers have to ask if holding prosecutions over an addicts head so as to send that person into dangerous situations for more arrests is ethical. Prosecutors have to ask if making more arrests and sending people to prison for longer and longer sentences benefits the communities they are ethically bound to serve and protect.  Legislators must ask if the endless parade of mandatory drug sentences is serving to make our society better.  The “war” of a criminal trial has clearly delineated boundaries.  As a criminal defense attorney, the moral justification for punishment is met only when I provide a vigorous defense within the rules of the game.  If I fail to provide a proper defense or if I am prevented from making beneficial arguments on my client’s behalf, the “war” becomes unfair and the impact of the laws disproportionate.

The second in bello rule of aggression requires that agents of aggression must discriminate between legitimate and illegitimate targets. They are bound to distinguish between the innocent and those deserving of punishment. The entirety of the requirement of discrimination is reliant upon a good faith execution of the aggression based on solid information.  Is it not true that the War on Drugs has been a campaign fueled by misinformation, fear and undertones of racist memes?  Is it not also true that the continued targeting of Americans is supported by the desire for local law enforcement agencies to co-opt tons and tons of money? If there exists a financial incentive to target people for arrest, then no argument exists that the aggression is discriminate.

This article has attempted to set forth the reasons that the War on Drugs is not justified according to the Just War Theory.  Both the jus ad bellum and jus in bellum theories have been explored and found wanting.