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


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 4510.11, 4510.144510.16, 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.

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.

What Constitutes a Felony DUI in Ohio?

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Ohio has enacted two “look-back” statutes which enhance the penalties for a DUI; a six year look-back and a twenty year look-back.  This post will focus on when a DUI becomes a felony.  For a complete list of penalties for DUI offenses check out my previous article OHIO OVI PENALTIES.

Six Year Look-Back

If you receive a second DUI six years from the conviction date of your first DUI, the penalties are enhanced.  Both a first and second DUI within a six year period are first degree misdemeanors which carry a maximum fine of $1,075.00 and a maximum incarceration of six (6) months.  A second DUI within six years is enhanced, meaning that the minimum number of incarceration days and the fine are heavier. R.C. 4511.19(G)(1)(a) and (b).  A third offense within six years has even heavier fines and incarceration and carries a possibility of one year of incarceration, owing to the fact that a third offense is an unclassified misdemeanor. R.C. 4511.19(G)(1)(c).  A DUI becomes a fourth degree felony if it is a fourth offense within six (6) years. R.C. 4511.19(G)(1)(d).

Twenty Year Look-Back

A sixth or greater offense within a twenty year look-back period is a fourth degree felony. R.C. 4511.19(G)(1)(d).  Another harsh provision under Ohio law is the “once a felony, always a felony” rule contained in R.C. 4511.19(G)(1)(e), meaning that any future DUI regardless of how many years have passed is charged as a third-degree felony.  This means that if you have many years of sobriety in between DUI convictions, you still face a felony rather than having your case treated as a first-in-six misdemeanor offense.

DUI defense attorneys have challenged the constitutionality of these look-back provisions on the grounds that they violated due process and that they are a retroactive application of laws.  In State v. Miccap, 2006-Ohio-2854 (Ohio Ct. App. 9th Dist, Summit County), the 9th District Court of Appeals rejected these arguments and upheld the enhanced punishments.  It stated that the penalties imposed were not enhancements punishing prior conduct, but punishing any violations that occur after enactment of the enhancement provision.  In State v. Brooke, 113 Ohio St.3d 199, 863 N.E.2d 1024 (2007), the court upheld the right of a defendant to challenge whether or not a prior conviction was conducted in accordance with the rule of law.  For a complete discussion of Attack on prior convictions, see Ohio Driving Under the Influence Law, Weiler & Weiler J., 2009-2010 ed., pp 333-335.

Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  Contact Charles Rowland at (937)318-1384 [318-1DUI], 1-888-769-5263 [888-ROWLAND] or visit his web site at www.DaytonDUI.com or www.facebook.com/DaytonDUI or on Twitter @DaytonDUI.

“All I do is DUI.”

What Are The Costs of a DUI?

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Potential expenses from a DUI

According to a recent CNBC article: Drunk Driving Could Cost $20,000, by Craig Guillot, you could expect to spend as much as $20,000.00 in total costs for a first time DUI offense.  Another article, The Most Expensive Ride You’ll Ever Take, by Ashley Grant details her expensive experience with a DUI charge.

“One drink too many puts you at risk not only for an arrest, but also for fees, fines and costs that can run you thousands of dollars. While a DUI or DWI may be a misdemeanor charge in a number of jurisdictions, it’s a matter that most judges and district attorneys take very seriously. The financial toll of a conviction will play out for years to come, and in many states, that can add up to $20,000 before everything is over. This includes bail, fines, legal fees, increased auto insurance premiums, loss of work income, court-ordered alcohol education programs and more.You don’t even have to get convicted to start running up expenses on a DUI charge. But if you’re found guilty, a first offense could mean that last drink cost you dearly. While the amounts vary by location and specific circumstances, here are some of the expenses you may realize.”

  • Fines,
  • Court Costs
  • Attorney Fees
  • Loss of Employment
  • Bail
  • Temporary Loss of Income
  • Alternate Transportation costs,
  • Periodic Blood Testing or Chemical Monitoring
  • Costs Associated With Incarceration
  • Driver Intervention Programs (DUI school)
  • Car Towing, and/or Storage
  • Costs Associated with Transdermal Alcohol Monitors
  • Costs Associated with House Arrest
  • Probation Costs
  • Increased Auto Insurance Payments
  • Costs of Immobilization or Impoundment of Vehicle
  • Forfeiture of Vehicle

If you are arrested for DUI (now called OVI in Ohio), contact experienced trial counsel to fight your OVI charge.  A reduction in your charge from OVI to a reckless operation (R.C. 4511.20) or a physical control charge (R.C. 4511.19.4),  could save you untold thousands of dollars and protect you from some severe unintended consequences. (See Unintended Consequences of a DUI, Id. at this blog).  Charles Rowland has been representing the accused drunk driver for over 15 years.  He has dedicated his time and efforts to becoming one of the most credentialed OVI attorneys in Ohio.  Contact Charles Rowland today:  www.DaytonDUI.com: 1-888-ROWLAND (888-769-5263); 937-318-1DUI (318-1384); on Facebook at Dayton DUI/OVI Defense; on Twitter @DaytonDUI; or by texting DaytonDUI (one word) to 50500.  24/7 Help is available at the Dayton DUI Hotline (937-776-2671).