Tag: Misdemeanor

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

 

Ohio DUI Laws: An Overview

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ohio dui lawsThis post collects together in one place many of the Ohio DUI Laws that arise in drunk driving cases.  

Some Ohio DUI laws are listed because law enforcement will charge these offenses to establish probable cause for pulling over your vehicle.  If you need to find out more about a specific law, or how the statute has been interpreted or applied, call Charles M. Rowland II at (937) 318-1384 or read about the specific Ohio DUI law at the Ohio DUI Law Blog.

Operating a Vehicle Impaired (OVI); O.R.C. 4511.19

This is Ohio’s drunk driving statute (Ohio’s DUI law).  It is a complex and constantly changing statute that encompasses impaired driving by having a prohibited concentration of alcohol or drugs as well as the charge of driving impaired based on no test or a defendant’s refusal to take a chemical test.  The statue has been expanded to include both high-tier and low-tier OVI charges as well as setting the under 21 prohibited concentration.  Ohio DUI laws are complex and require the assistance of an experienced Ohio DUI attorney.

Aggravated Vehicular Homicide; O.R.C. 2903.06

Ohio DUI Laws: Aggravated Vehicular Homicide is a crime that results from the death of another caused by the defendant’soperating a vehicle while impaired (a violation of R.C. 4511.19)  or while driving negligently or recklessly.  The statute  encompasses driving an automobile recklessly or negligently (called Vehicular homicide) whether or not alcohol played a part in the death.

Aggravated Vehicular Assault; O.R.C. 2903.08

Ohio DUI Laws: Aggravated Vehicular Assault is the crime of causing serious physical harm to a person while violating Ohio’s drunk driving statute.

Operating A Vehicle After Underage Consumption (OVUAC); O.R.C. 4511.19(B)

Ohio DUI Laws: O.R.C. 4511.19(B) makes it illegal for persons under 21 years of age to drive a vehicle with a concentration of .02 percent, but less than .08 percent by weight of alcohol by whole blood or breath, or with an equivalent amount by blood serum or plasma or urine.  (1994 S.B. 82, eff. 5/4/94).

Having Physical Control of a Vehicle While Under the Influence (Physical Control); O.R.C. 4511.194

Ohio DUI Laws: The crime of “Physical Control” involves being in physical control of a vehicle while under the influence of alcohol or a drug of abuse.  This definition means that you do not have to be driving or operating the car.

Reckless Operation; O.R.C. 4511.20

Reckless operation in Ohio can constitute any number of offenses within the Ohio Revised Code dealing with operation of a vehicle with willful or wanton disregard to persons or property. It can be charged as a 3rd degree misdemeanor, a 4th degree misdemeanor or as a minor misdemeanor under Ohio law.

Boating Under the Influence (BUI); O.R.C. 1547.11

Penalties for Boating Under the Influence offenses are set forth at O.R.C. 1547.99 and are similar to those provided for DUI/OVI offenses.  Boating Under the Influence is a first degree misdemeanor and is subject to a minimum 3-day jail sentence and a maximum 6 months in jail.  The 3-day jail sentence can be served in a qualified driver intervention program.  The minimum mandatory fine for a first BUI offense is $150.  The language of the statute is broad, including control of any vessel underway or shall manipulate any water skis, aquaplane, or similar device on Ohio waterways.

Driving in Marked Lanes (Marked Lanes); O.R.C. 4511.33

A marked lanes charge is often a companion charge to a DUI/OVI offense.  It is also a “cue” that the officer may look for based on his/her National Highway Transportation Safety Administration training.

Lanes of travel upon roadways of sufficient width; O.R.C. 4511.25

Going the wrong way on a designated roadway or traveling into the “other” lane may be a violation of the “Lanes of Travel” law.  Some experienced officers choose to charge this offense rather than a Marked Lanes violation or charge this in combination with a Marked Lanes violation.

Turn and Stop Signals; O.R.C. 4511.39

“No person shall turn a vehicle… or move right or left upon a highway unless and until such person has exercised due care to ascertain that the movement can be made with reasonable safety nor without giving an appropriate signal in the manner hereinafter provided. When required, a signal of intention to turn or move right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle… before turning.”

Underage Consumption or Possession; O.R.C. 4301.69

This statue encompasses the crime of possessing and furnishing alcohol to minors.  If you are under 21 years old, drinking alcohol is illegal in the State of Ohio.  Ohio Revised Code 4301.69(E)(1) provides that “No underage person shall knowingly order, pay for, share the cost of, attempt to purchase, possess, or consume any beer or intoxicating liquor in any public or private place. No underage person shall knowingly be under the influence of any beer or intoxicating liquor in any public place.”  As a parent, you cannot give alcohol to your teen’s friends under the age of 21, under any circumstance, even in your own home, even with their parent’s permission.

Speeding and Assured Clear Distance, Following Too Closely; O.R.C. 4511.21

The speed law is set forth at Ohio Revised Code 4511.21.  It states:(A) No person shall operate a motor vehicle, trackless trolley, or streetcar at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions, and no person shall drive any motor vehicle, trackless trolley, or streetcar in and upon any street or highway at a greater speed than will permit the person to bring it to a stop within the assured clear distance ahead.  The law goes on to set forth the “speed limits” or presumed speed limits.  According to the Ohio State Highway Patrol, there were more than 65,500 crashes statewide last year because of drivers following too closely. And of those crashes, 58 died and 18,552 were injured.

License Plate Light Not Illuminated, O.R.C. 4513.05

In Ohio, it is illegal to operate a motor vehicle without a white light illuminating the rear registration plate. See O.R.C. 4513.05.  This law is often used as a pretext for a traffic stop which allows the officer to come into contact with the motorist. This is among the more “ticky-tack” reasons to pull someone over and the public views this as something of an underhanded trick used by law enforcement to justify a stop.

Driving Under SuspensionO.R.C.4510.14

Driving under an OVI suspension is a violation of Ohio Revised Code 4510.14.  It is a separate offense from a DUI/OVI charge and carries harsh mandatory penalties. With the use of “party plates” which stigmatize people convicted of DUI and their innocent family members, and the increased use of computer license plate readers, Ohioans are seeing an increase in the number of people being ticketed for driving under suspension.

Ohio DUI/OVI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 

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Affirmative Defenses to a Driving Under Suspension Charge

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Ohio law provides two affirmative defenses to the crime of driving under suspension.  Ohio Revised Code section 4510.04, Affirmative defenses to driving under suspension or cancellation, provides in pertinent part,

It is an affirmative defense to any prosecution brought under section 4510.114510.144510.16, or 4510.21 of the Revised Code or under any substantially equivalent municipal ordinance that the alleged offender drove under suspension, without a valid permit or driver’s or commercial driver’s license, or in violation of a restriction because of a substantial emergency, and because no other person was reasonably available to drive in response to the emergency.

It is an affirmative defense to any prosecution brought under section 4510.16 of the Revised Code that the order of suspension resulted from the failure of the alleged offender to respond to a financial responsibility random verification request under division (A)(3)(c) of section 4509.101 of the Revised Code and that, at the time of the initial financial responsibility random verification request, the alleged offender was in compliance with division (A)(1) of section 4509.101 of the Revised Code as shown by proof of financial responsibility that was in effect at the time of that request.

Driving Under Suspension can be charged as a first degree misdemeanor or as an unclassified misdemeanor.  It is a serious crime.  It is also a crime that is treated very differently depending on the jurisdiction wherein your charge takes place.  Be sure to hire an attorney who knows the court where you will appear and is familiar with how the prosecutor and judge will approach your particular facts.  At DaytonDUS, we have been representing clients for over 16 years in courts throughout the Miami Valley.  As a former prosecutor, Charles M. Rowland II will aggressively advocate to keep you out of jail.  He will go the extra mile to get you valid.  This is not a time to gamble.  Call someone who has a track record of winning for his clients.  (937) 318-1DUS.

Reckless Operation in Ohio: What is the Law?

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RECKLESS OPERATION: What is the law?

Black's law Dictionary, photo by user:alex756

Reckless operation in Ohio can constitute any number of offenses within the Ohio Revised Code dealing with operation of a vehicle with willful or wanton disregard to persons or property.  Commonly, reckless operation is charged under O.R.C. 4511.20 (all codes sections are set forth below).  There is a separate O.R.C. section dealing with reckless operation while off-road (O.R.C. 4511.201) and while on a watercraft (O.R.C. 1547.07).  O.R.C. 4511.202 is Ohio’s Reasonable Control Statute.

The Ohio Supreme Court, in State v. Earlenbaugh (1985), 18 Ohio St.3d 19, 21-22, stated, “we believe that the statute simply provides two definite and clear bases upon which a finding of guilt may be premised. A person may be found guilty of violating R.C. 4511.20 if he acts willfully. Such conduct implies an act done intentionally, designedly, knowingly, or purposely, without justifiable excuse. Black’s Law Dictionary (5th Ed.1979) 1434. Or conversely, R.C. 4511.20 is violated when a person acts wantonly in disregard of the safety of others. A wanton act is an act done in reckless disregard of the rights of others which evinces a reckless indifference of the consequences to the life, limb, health, reputation, or property of others. (Citations omitted.)”  The statutory definition of reckless operation can be found at Ohio Revised Code Section 4511.20 which states:

4511.20 Operation in willful or wanton disregard of the safety of persons or property.

(A) No person shall operate a vehicle, trackless trolley, or streetcar on any street or highway in willful or wanton disregard of the safety of persons or property.

(B) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.

People who enjoy off-roading, whether in a motor vehicle, an ATV, a Gator, a snow machine or other machine are governed by Ohio’s off-roading reckless operation statute.

4511.201 Operation off street or highway in willful or wanton disregard of the safety of persons or property.

(A) No person shall operate a vehicle, trackless trolley, or streetcar on any public or private property other than streets or highways, in willful or wanton disregard of the safety of persons or property.

This section does not apply to the competitive operation of vehicles on public or private property when the owner of such property knowingly permits such operation thereon.

(B) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.

Ohio’s reasonable control statute is often a companion charge to a reckless operation violation.  It is not a lesser included offense to reckless operation.  State v. Lovell, 157 Ohio App. 3d 227, 2004-Ohio-2617 .  It is set forth at O.R.C. 4511.202.

4511.202 Operation without being in reasonable control of vehicle, trolley, or streetcar.

(A) No person shall operate a motor vehicle, trackless trolley, or streetcar on any street, highway, or property open to the public for vehicular traffic without being in reasonable control of the vehicle, trolley, or streetcar.

(B) Whoever violates this section is guilty of operating a motor vehicle without being in control of it, a minor misdemeanor.

O.R.C. 1547.07 governs the behavior of operation of a water vessel.  It gives examples of prohibited behavior.

1547.07 Reckless or unsafe operation of vessel, water skis, aquaplane.

(A) Any person who operates any vessel or manipulates any water skis, aquaplane, or similar device on the waters in this state carelessly or heedlessly, or in disregard of the rights or safety of any person, vessel, or property, or without due caution, at a rate of speed or in a manner so as to endanger any person, vessel, or property is guilty of reckless operation of the vessel or other device.

(B) No person shall operate or permit the operation of a vessel in an unsafe manner. A vessel shall be operated in a reasonable and prudent manner at all times.

Unsafe vessel operation includes, without limitation, any of the following:

(1) A vessel becoming airborne or completely leaving the water while crossing the wake of another vessel at a distance of less than one hundred feet, or at an unsafe distance, from the vessel creating the wake;

(2) Operating at such a speed and proximity to another vessel or to a person attempting to ride on one or more water skis, surfboard, inflatable device, or similar device being towed by a vessel so as to require the operator of either vessel to swerve or turn abruptly to avoid collision;

(3) Operating less than two hundred feet directly behind a person water skiing or attempting to water ski;

(4) Weaving through congested traffic.

Reckless operation of a vehicle clearly falls under the definition of  a “traffic case.”  A defendant found guilty of a fourth degree misdemeanor cannot be sentenced to more than 30 days in jail. R.C. 2929.21(B)(4). Thus, the advisement that is required in this case is misdemeanor traffic cases involving petty offenses. Such advisement is spelled out in Traf.R. 10(D), which is entitled “Misdemeanor cases involving petty offenses.” Traffic Rule 2 defines which cases fall under the Traffic Rules. It states:

(A) Traffic case’ means any proceeding, other than a proceeding resulting from a felony indictment, that involves one or more violations of a law, ordinance, or regulation governing the operation and use of vehicles, conduct of pedestrians in relation to vehicles, or weight, dimension, loads or equipment, or vehicles drawn or moved on highways and bridges. `Traffic case’ does not include any proceeding that results in a felony indictment.

(D) Petty offense’ means an offense for which the penalty prescribed by law includes confinement for six months or less.

(E) Serious offense’ means an offense for which the penalty prescribed by law includes confinement for more than six months.” Traf.R. 2.

Traffic Rule 10(D) reads:
“In misdemeanor cases involving petty offenses, except those processed in a traffic violations bureau, the court may refuse to accept a plea of guilty or no contest and shall not accept such pleas without first informing the defendant of the effect of the plea of guilty, no contest, and not guilty.”

Reckless operation carries four “points” on your Ohio driver’s license.  “Points” under Ohio law are set forth at O.R.C. 4510.036(C).

6 Point Violations

  • -Aggravated Vehicular Homicide
  • -Vehicular Homicide
  • -Vehicular Manslaughter
  • -Aggravated Vehicular Assault
  • -Willful Fleeing and Eluding,
  • -Failure to Stop and Disclose Identity at Accident
  • -Street Racing
  • -Driving Under Suspension
  • -OVI (drunk driving)
  • -Unauthorized Use of a Motor Vehicle
  • -Any felony motor vehicle violation or any felony committed with motor vehicle

Four Point Violations

  • -Operation of a Vehicle After Underage Consumption
  • -Operation in Willful or Wanton Disregard of Safety (a reckless operation offense)
  • -Exceeding the Speed Limit by greater than 30 mph.

Two Point Violations

  • -Exceeding the Speed Limit of 55 by at least 10 but less than 30 mph
  • -Exceeding the Speed Limit less than 55 by at least 5 but less than 30 mph.
  • -Operating a motor vehicle in violation of a restriction imposed by the BMV
  • -Most other moving violations including operating a vehicle w/o a license.

Dayton DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver.  He has the credentials and the experience to win your case and has made himself Dayton’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.  You can also email Charles Rowland at: CharlesRowland@CharlesRowland.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

Ohio Revised Code 4511.194, Physical Control

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Ohio Revised Code section 4511.194 defines the crime of “Physical Control.” 

Steering Wheel

The crime of “Physical Control” involves being in physical control of a vehicle while under the influence of alcohol or a drug of abuse.  This definition means that you do not have to be driving or operating the car.  If a person is in the driver’s position of the front seat of a vehicle, or in the driver’s position of a streetcar, or trackless trolley and having possession of the vehicle’s, streetcar’s or trackless trolley’s key, or other ignition device that person is in “physical control” of the vehicle.  See Cincinnati v. Kelley, 47 Ohio St.2d 94, 351 N.E.2d 85 (1976).

Vehicle is defined at R.C. 4511.01(A) as

every device, including a motorized bicycle, in, upon, or by which any person or property may be transported or drawn upon a highway, except that “vehicle” does not include any motorized wheelchair, any electric personal assistive mobility device, and device that is moved by power collected from overhead electric trolley wires, or that is used exclusively upon stationary rails or tracks, or any device, other than a bicycle, that is moved by human power.

Thus, one could be convicted of Physical Control of a bicycle, but not a unicycle, tricycle, wheelbarrow or shopping cart. This same quirky logic applies to Ohio’s OVI (drunk driving) statute, R.C. 4511.19.

“Operate” is defined at R.C. 4511.01(HHH) as “to cause or have caused movement.”  But, being found slumped over the wheel of a vehicle whilst the vehicle is running has been found to be operation of the vehicle, State v. Adams, 2007-Ohio-4932 (Ohio Ct. App. 3d Dist. Crawford 2007).  In State v. Mackie, 128 Ohio App.3d 167, 714 N.E.2d 405 (1st Dist. Hamilton County 1998), a defendant’s car was stuck in a snowbank and was incapable of movement.  His conviction was reversed due to insufficient evidence to show intoxication when the vehicle was operable.   The Mackie decision offers a good discussion of the intricacies that are raised by attempting to define “operation.”

Physical Control is a first degree misdemeanor in Ohio which is punishable by a maximum $1,000.00 fine, a license suspension of up to one year and a maximum jail sentence of six (6) months.  Physical Control is preferable to some commercial drivers because it may not count as a “major incident” for CDL purposes.  Unlike a reckless operation charge (O.R.C. 4511.20), Physical Control carries no “POINTS” on your Ohio license.  The court may also require the defendant to attend a 3-day weekend intervention alcohol education course.  Another major benefit of the Physical Control statute (which is also true of Reckless Operation) is that whereas prior OVI convictions trigger enhanced minimum penalties for future OVI convictions, prior physical control convictions would not trigger those enhanced penalties for future OVI convictions.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro, Huber Heights, Oakwood, Beavercreek, Centerville 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 and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.