Posts Tagged ‘Criminal law’

Can A Defendant Waive A Jury Trial In Ohio? (by DaytonDUI)

December 19th, 2012

Controversial Jury Bill Dies In Committee

Xenia Jury BoxOhio is one of 21 states that give the power to decide whether or not to have a jury trial solely to the defendant.  Thus, a defendant can, at any point, decide against a jury trial and opt for a trial only to the judge.  This is often done in serious OVI cases wherein a technical or scientific point is the most salient point.  It is particularly apt when a defendant wants to avoid allowing the prosecution to enflame the jury with sympathetic evidence of injuries or in cases where the defendant has a lengthy criminal history.  In short, it is one of very few tools that can (in very limited circumstances) benefit a criminal defendant.  This benefit does not exist in the federal system.  Federal Rule of Criminal Procedure 23 states that a defendant may only waive a trial by jury with the consent of the prosecution.  This provision has been upheld by the Supreme Court in Patton v. U.S. and Singer v. U.S.

Ohio State Rep. Lynn Slaby, a former prosecutor, introduced HB 265 last December to change Ohio law to make it consistent with federal law, and thus more beneficial to Ohio prosecutors.  The Bill states, in pertinent part:

The prosecuting attorney, a village solicitor, a city director of law, or a similar chief legal officer for a municipal corporation responsible for prosecuting a criminal case before a municipal court may demand a jury trial in any criminal case in which a defendant may demand a jury trial. The prosecuting attorney, village solicitor, city director of law, or similar chief legal officer may demand a jury trial notwithstanding a defendant’s failure to demand a jury trial and over the objection of the defendant.(Emphasis added.)

From the beginning the bill was controversial and garnered little support outside of the prosecutors.  ”This is the second time in nine years that the legislature has attempted to take away a defendant’s right to waive a jury trial; a right that simply levels the playing field for defendants in a game where the prosecution enjoys exclusive control over the nature of the charges filed, the number of charges brought, and execution of the charges through warrant and arrest. The last time, in 2002, the measure (H.B. 541) was squashed through the hard work of attorneys and judges who saw the danger in such legislation.” Columbus Bar Association, Fall 2011.

On Wednesday, December 12, the Ohio Senate Judiciary Committee held testimony on HB 265. After hearing testimony, Chairman Mark Wagoner did not call for a vote. This action by Chairman Wagoner effectively defeated the bill for this session.  As of this writing it is unknown whether the bill will be reintroduced at a later date.  We will keep you informed.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in DaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber Heights,Beavercreek, and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook,www.facebook.com/daytondui and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.comor write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

Federal Court DUI

July 19th, 2012

Misdemeanor drunk driving charges occurring on federal lands (such as national parks and military bases)  fall under the jurisdiction of the federal courts. 

Established in 1803, the United States District Court for the Southern District of Ohio handles over 400 criminal cases a year in 48 of Ohio’s 88 counties.  The court has an eastern division, located in Columbus and two western divisions located in Dayton and Cincinnati.  If you are arrested for a federal DUI offense in Champaign, Clark, Greene, Darke, Miami, Montgomery, Preble or Shelby counties you will appear in Dayton’s Federal Building, 200 W. Second St., Dayton, Ohio 45402.  You can contact the Court at (937)512-1400 Monday through Friday from 9:00 a.m. until 4:00 p.m.  An Ohio DUI lawyer experienced in federal dui laws and drunk driving cases can explain the difference between state and federal prosecutions, and the potential penalties of each.

If you are arrested for DUI on Wright-Patterson Air Force Base, the court will apply Ohio law in adjudicating your case via the Assimilative Crimes Act.  Generally, you will face the same harsh penalties for a federal DUI as you would under Ohio DUI law.  However, under federal law the refusal to submit to a chemical test is a violation of the Code of Federal Regulations.  The Code of Federal Regulations does not provide for mandatory drivers license suspensions in refusal cases, but Ohio’s BMV will be notified of a chemical test refusal conviction, and will then impose the same license restrictions associated with a DUI conviction under state law.

Federal drunk driving is a serious charge that can result in fines, imprisonment, or both.  A DUI attorney experienced in handling federal DUI cases will develop a strategy to fight the charges and keep consequences to a minimum.  Charles M. Rowland II has handled federal DUI cases for over 15 years and is one of the few local attorneys to actually have tried a DUI case in federal court.  He has been used as an expert witness in military court martial proceedings and can offer the advice of a former J.A.G. on staff.  Contact federal DUI defense attorney Charles M. Rowland II at (937)318-1384 or at 1-888-ROWLAND.

Middletown OVI Checkpoint (6/22/12)

June 22nd, 2012

The Butler County OVI Task Force will conduct an OVI checkpoint along Ohio 122 in Middletown.  The checkpoint will be held from 10 p.m. Friday until 4 a.m. Saturday morning.  The checkpoint will be accompanied by aggressive saturation patrols.

If you want to receive updated information on sobriety checkpoints,  enhanced traffic enforcement, saturation patrols and other important developments that affect you, sign up for text alerts on the main page of this blog.  Text alerts will be sent directly to your mobile device/smartphone in the location you choose in the Miami Valley.  In the past month we have alerted our followers to the State Route 35 traffic initiative and three local sobriety checkpoints.  You should also know that we respect your trust and we will never send you irrelevant information and/or advertisements.  This service is free and available to the general public.

You can also put DaytonDUI on your Android Smart phone via the DaytonDUI app.  The app helps you know your rights and know yourself by providing a drink tally so that you do not overindulge.  You can send safe drinking tips to friends or use the app to find the nearest taxi for a safe trip home.  The app brings you the best of DaytonDUI’s video and audio content and gives you a chance to take pictures and record memories so that you can aid in your own defense.  Our sincere desire is to make our roads a safer place.

Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (1-888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  Immediate help is available by filling out this CONTACT form.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter at www.Twitter.com/DaytonDUI or Get Twitter updates via SMS by texting follow DaytonDUI to 40404. DaytonDUI is also available on Facebook and you can access updates by becoming a fan of Dayton DUI/OVI Defense.  You can also email Charles Rowland at: CharlesRowland@CharlesRowland.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

Dayton Criminal Defense: Making Bail

December 8th, 2010
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When you are arrested in Ohio, the police have the discretion to release you or to hold you in a local jail. If you are released, you are given a court date and it is your responsibility to show up at the designated time and place so that your case can proceed.  Failure to do so will result in an arrest warrant being issued.  The time and place of your appearance appears at the bottom of your ticket.  There you will find the date and the address of the court  where your case will be heard.

If you are held in jail, you will be given the opportunity to post a bond.  The posting of a bond is often referred to as  ”making bail” or “bailing out” of jail.  Why do you have to make bail?  The purpose of bail is to ensure that the defendant appears for all scheduled court hearings. Many jurisdictions in Ohio have a set amount of bail for most offenses and you will be required to pay this bail amount prior to your release.  This pre-determined amoutn is referred to as the Bond Schedule.  Many courts will post the Bond Schedule on their web sties, making it easier for family members to access the information.  Other jurisdictions will hold you in jail until you appear before a judge.  The judge will hold a preliminary hearing called an arraignment and a bond amount will be set.  Most often the defendant will be able to post bail immediately.  Usually, bail bonds may be posted 24 hours a day.  Check with the court about what types of payments can be accepted and whether or not a credit card holder must be present for the payment to be accepted.

There are several types of bonds that can be set by the judge:

  • Recognizance Bond - Also referred to as an O.R bond, this bond requires the person who is charged with the offense to sign bond papers that are completed by the court.  No other collateral is posted.  Failure to appear for all future court dates under a recognizance bond is punishable by six months in jail and/or a $1,000 fine, regardless of the outcome of the original charge.
  • 10% Cash Bond - This type of bond requires only 10% of the full amount of the bond to be posted. For example, if a $5,000 appearance bond is set, you will need to post $500 with the court to secure your release. If you make all the necessary court appearances, the money will be returned at the end of the case. Failure to appear could make you liable for the full amount of the bond and the court could render judgment against you.  In this example you may owe an additional $4,500.
  • Cash Bond - If the court does not give you a 10% bond, you must post the entire amount of the bond that has been set before being released.  Make all of the scheduled court appearances and the court will return all of the money posted.
  • Property Bond – This type of bond has many requirements and is governed by O.R.C. 2937.24 and Criminal Rule 46(A)(3) & (I). Please consult a professional if considering this type of bond.

Sometimes a judge will say that the bond is a cash or surety bond.  Often a judge will say a short-hand version such as, “Bail will be $1,000 cash or surety.”  A surety bond requires the posting of a surety power from an insurance company that guarantees the full amount of the bond will be paid in the event the defendant does not appear for a scheduled court hearing.  Bail bond companies are also knows as bail bondsmen.  Choose a bail bond company that services the jail where you are being held.  You should also consider how quickly they can act on your case, whether or not they accept payment plans and whether or not collateral will be required.  Once you have chosen a bail bond company, the bail agent will then post the bond at the necessary jail to secure release.  NOTE: co-signing on a bond can have serious and devastating effects.  Please read and understand the obligations you are undertaking before entering into this contractual relationship.

Once the bond is posted the release process begins.  The bond is processed through the court and a release notice is issued to the jail.  Depending on the size of the jail, this process can take 10 minutes or several hours.  Usually, the defendant will receive a court date upon his or her release.  Again, failing to appear at the court date will result in a warrant being issued for your arrest and may result in a forfeiture of your bond.  Now is the time to begin searching for an attorney to help you through your Ohio criminal case.  You can contact attorney Charles M. Rowland II at (937) 879-9542 or email him at CharlesRowland@CharlesRowland.com.

Ohio Supreme Court Rules on Adam Walsh Act

June 3rd, 2010
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Adam Walsh’ Provision Requiring Attorney General to Reclassify Sex Offenders Violates Separation of Powers

2008-2502.  State v. Bodyke, Slip Opinion No. 2010-Ohio-2424.
Huron App. Nos. H-07-040, H-07-041, and H-07-042, 2008-Ohio-6387.  Judgments of the court of appeals reversed.
Lundberg Stratton, O’Connor, and Lanzinger, JJ., concur.

Pfeifer, J., concurs in the syllabus and judgment.
O’Donnell, J., concurs in part and dissents in part.
Cupp, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2424.pdf Adobe PDF Link opens  new window.

Video clip View oral argument video of this case.

(June 3, 2010) In a narrowly tailored decision announced today, the Supreme Court of Ohio voided as unconstitutional two sections of the Ohio Adam Walsh Act (AWA) that authorize the state attorney general to reclassify sex offenders who had already been classified by judges under a previous version of the law, “Megan’s Law.”  The Court held that the challenged provisions violate the separation-of-powers doctrine of the Ohio Constitution.

Today’s decision leaves in place all of the law enforcement registration and community notification requirements of the AWA applicable to sex offenders who were classified on or after the Jan. 1, 2008, effective date of that law, and reinstates the pre-AWA registration and community notification requirements that judges had ordered offenders to comply with pursuant to Megan’s Law.

In this case, Christian Bodyke, David Schwab and Gerald Phillips were separately convicted of sex-related crimes prior to 2007. Pursuant to the pre-AWA version of Ohio’s sex offender classification statute (known as Megan’s Law), the trial court in which they were convicted conducted a formal hearing in each case at which the judge reviewed factors enumerated in the statute and issued a final order assigning each of the offenders to a classification that imposed a duty of postrelease registration with the sheriff in their county of residence.

In 2007, the General Assembly enacted the AWA, which repealed the former Megan’s Law classification system and replaced it with a new statutory scheme in which persons convicted of sex crimes after the effective date of the act are categorized as Tier I, Tier II or Tier III offenders based solely on the offenses for which they were convicted. The AWA imposes new postrelease registration and community notification requirements for each tier of offenders that are more restrictive in most cases than the requirements imposed on similar offenders under Megan’s Law.

The 2007 legislation also includes provisions, codified in R.C. 2950.031 and 2950.032, that order the state attorney general to reclassify all sex offenders who had previously been classified by a court under the Megan’s Law scheme into one of the three new AWA tiers based solely on the crime for which they were convicted.  The attorney general was ordered to notify these prior offenders that their reclassification would be effective Jan. 1, 2008, and that as of that date they would be subject to the new AWA registration and community notification requirements applicable to the tier of offenders into which they had been placed.

Bodyke, Schwab and Phillips received letters from the attorney general in November 2007 notifying them that pursuant to the AWA, as of Jan. 1, 2008, they would be reclassified as Tier III offenders and therefore subject to more stringent registration requirements and to community notification requirements to which they had not been subject under their judicially ordered classification under Megan’s Law. All three men appealed their reclassifications on various constitutional grounds to the 6th District Court of Appeals, which consolidated the cases for review. The 6th District rejected the appellants’ arguments, and affirmed their reclassification under the AWA as constitutional.  Bodyke sought and was granted Supreme Court review of the 6th District’s decision.

Writing for a 5-1 majority of the Court in today’s decision, Justice Maureen O’Connor observed that, just as the judicial branch is bound by the constitution to faithfully apply the law as written by the legislature, the legislative and executive branches are barred by the constitution from enacting or enforcing laws that encroach on the powers of the judiciary.

In this case, she wrote: “The AWA’s provisions governing the reclassification of sex offenders already classified by judges under Megan’s Law violate the separation-of-powers doctrine for two related reasons:  the reclassification scheme vests the executive branch with authority to review judicial decisions, and it interferes with the judicial power by requiring the reopening of final judgments.  It is well settled that a legislature cannot enact laws that revisit a final judgment. We have held for over a century that ‘the Legislature cannot annul, reverse, or modify a judgment of a court already rendered …’”

Citing the Supreme Court of Ohio’s 1902 decision in Gompf v. Wolfinger, Justice O’Connor wrote: “‘A judgment which is final by the laws existing when it is rendered cannot constitutionally be made subject to review by a statute subsequently enacted …’ The reclassification scheme in the AWA works to ‘legislatively vacate the settled and journalized final judgments of the judicial branch of government.’ … (T)he General Assembly cannot vest authority in the attorney general to reopen and revise the final decision of a judge classifying a sex offender.”

“The power to review and affirm, modify, or reverse other courts’ judgments is strictly limited to appellate courts (under) Section 3(B)(2), Article IV, Ohio Constitution. The AWA intrudes on that exclusive role and thus violates the separation-of-powers doctrine. Moreover, once the final judgment has been opened, the AWA requires that the attorney general ‘shall determine’ the new classifications of offenders and delinquent children who were classified by judges under the former statutes. … In doing so, it violates a second prohibition by assigning to the executive branch the authority to revisit a judicial determination. … Thus, we conclude that R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders who have already been classified by court order under former law, impermissibly instruct the executive branch to review past decisions of the judicial branch and thereby violate the separation-of-powers doctrine. We further conclude that R.C. 2950.031 and 2950.032, which require the attorney general to reclassify sex offenders whose classifications have already been adjudicated by a court and made the subject of a final order, violate the separation-of-powers doctrine by requiring the opening of final judgments.”

The court’s decision also discussed an important legal doctrine, stare decisis, which  provides that judges should follow prior, relevant precedent when deciding cases. Justice O’Connor, who authored the 2003 decision that announced the Ohio standard for overruling precedent, Galatis v. Westfield Insurance Co., clarified Ohio law on stare decisis in two important regards. First, quoting from this Court’s 1989 decision in Rocky River v. State Emp. Relations Bd., she reiterated the rule that ‘stare decisis applies to rulings rendered in regard to specific statutes, [but] it is limited to circumstances “where the facts of a subsequent case are substantially the same as a former case.”’ … Noting that the AWA is substantially different from Megan’s Law, she concluded that the court’s prior decisions that had upheld that the constitutionality of Megan’s Law were not dispositive of Mr. Bodyke’s appeal, which involved a new statute, the AWA.

Second, Justice O’Connor wrote that “there is a more vital and compelling limitation on the doctrine as it has developed in Ohio: its inapplicability to constitutional claims.” Citing the Court’s decision in Rocky River, she noted that the Court then had acknowledged that stare decisis “does not apply with the same force and effect when constitutional interpretation is at issue.” She expressly stated in today’s opinion that “[n]othing in our decision in Galatis suggests otherwise.  Rocky River retains its vitality, at least insofar as this principle is concerned:  ‘Stare decisis is not inflexibly applicable to constitutional interpretation.’” Thus, as a result of today’s decision, “Stare decisis remains a controlling doctrine in cases presenting questions on the law of contracts, property, and torts, but it is not controlling in cases presenting a constitutional question.”

As the appropriate remedy for the separation of powers violations identified in today’s decision, the Court held that severance (deletion) of the reclassification provisions (R.C. 2950.031 and 2950.032) from the AWA while leaving the remainder of the statute in place would correct the constitutional defect identified by the Court without detracting from “the overriding objective of the General Assembly, i.e. to better protect the public from the recidivism of sex offenders.”

Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton and Judith Ann Lanzinger.  Justice Paul E. Pfeifer concurred in the majority’s judgment and syllabus holding.

Justice Terrence O’Donnell entered a separate opinion in which he concurred with the portion of the majority opinion with respect to its decision on separation of powers, but dissented from any discussion of stare decisis, which garnered only three votes, because it is not necessary to the determination of the separation of powers issue.

He wrote:  “We usually decline to rule on questions that are not necessary to a proper disposition of a case.  … Here, there is no actual controversy between the parties over how the doctrine of stare decisis should apply when the meaning of the Constitution is at issue, and any attempt to unnecessarily decide that question in this case contravenes well-settled law that this court will not issue advisory opinions. … I am reminded of  (U.S. Supreme Court)  Chief Justice Roberts’s statement in PDK Laboratories, Inc. v. United States Drug Enforcement Adm.… where he wrote that the ‘the cardinal principle of judicial restraint [is that] if it is not necessary to decide more, it is necessary not to decide more …’”

In a separate dissenting opinion, Justice Robert R. Cupp disagreed with the majority’s conclusion that the reclassification provisions of the AWA violate the separation of powers doctrine by empowering the attorney general to overturn or vacate the final judgments of state courts. He wrote that, in his view, the inclusion of  Bodyke’s classification as a sexually oriented offender  in the trial court’s  judgment entry in his case did not elevate that classification to a “final judicial judgment” because the classification was required as a matter of law under the former Megan’s Law scheme as a collateral consequence of Bodyke’s conviction for sexual battery.

Justice Cupp noted that in enacting the AWA, the legislature repealed the former offender categories set forth in Megan’s Law and replaced them with the three tiers of the current classification system.  He wrote: “Rather than burden the courts with sifting the hundreds or thousands of sex offenders to which new and different requirements apply, the General Assembly assigned that administrative task to an executive officer, the attorney general.  For the reasons explained above, however, this task neither requires nor permits the attorney general to open, overturn, or otherwise disturb the final judgments of conviction and sentence of any offender.”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Jeffrey M. Gamso, 419.243.3800, for Christian Bodyke.

Russell V. Leffler, 419.668.8215, for the Huron County prosecutor’s office.

Benjamin C. Mizer, 614.466.8980, for Ohio Attorney General Richard Cordray.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click “Submit.”

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