Court Costs and Fines, and Restitution, Oh My: How A Defendant’s Poverty Does Not Shield Him From Prison For Failing To Pay Financial Sanctions

During my undergrad and law school days, one of my favorite life game was ATM roulette.  For anyone out there that has never played ATM roulette it is an exciting and highly depressing game all rolled into one.  Rules are to this game are very simple.  First, find an ATM.  Second, place ATM/Debit card into said ATM.  Third, entered the desired amount of money you would like to receive.  Four, pray to the money gods that you have money in your account!  Twenty bucks went along way back in my college days!  Especially on dollar draught nights at the local pub.

Thank god for my parents who, for whatever reason, helped replenish my beer fund when it was running low.  The thought of not having beer in college is a true travesty.

Okay, all kidding aside, being broke….a real bitch right?  Not being able to buy the things you want in life or the things you want to provide your family in life can become depressing.  Take it a step further and think about not having money for life essentials or barely pulling the money together to provide life essentials.  The thought of not being able to provide food, clothes, heat, water, etc., puts knots in my stomach.

Poverty, unfortunately, on many occasions rears its head in our criminal justice system.  Our Constitution safeguards individuals in poverty or who are indigent by permitting the court to appoint an attorney on their behalf.  Even with a court appointed attorney, indigent defendants may still face financial sanctions at the end of their case.  The court, however, does have discretion of waiving certain financial sanctions due to an indigent defendant’s inability to pay financial sanctions.  That is great for those individuals, but what about those individuals who are just above the poverty line, are given court ordered financial sanctions, and in reality cannot afford the sanctions?  Can these individuals be further punished for being nothing more than poor?  A simple answer to this question is YES!

State v. Dockery, 2010-Ohio-2365,  is a great case that explains the law surrounding a prison sentence due to an individual’s inability to pay court ordered financial sanctions.

In Dockery, Dockery pled guilty to trafficking in cocaine and was sentenced to community control.  At his sentencing hearing, the judge warned Dockery that he would receive 18 months in prison for each offense if he violated the terms of his community control.  Dockery’s community control sanctions included general conditions, neighborhood direct supervision, obtaining and maintain employment, drug treatment, and the payment of fines, court costs, and public-defender fees.

Well, unfortunately for Dockery, a month later he was arrested and detained for a robbery charge.  Dockery was found to have violated the terms of his probation.  The trial court once again warned Dockery that it would impose a prison term of 18 months in each case for a community-control violation.

A few months later, Dockery’s probation officer filed a notice of an alleged violation of community control for violating certain conditions of his community control.  Among the violations were that Dockery was using controlled substances and that Dockery violated his condition to pay his fines and court costs.  Dockery was to pay $40 per month for 43 months to pay off a total of $1,703.50 in fines and court costs.  The trial court found that Dockery had violated certain terms of his community control, to include his financial sanctions.

During mitigation, Dockery explained to the judge that he did not have any money to pay the financial sanctions, he has been unable to find secure employment, has been working for a temporary employment agency, had to borrow money from his mother, was paying money on court ordered child-support, and was making monthly payments to probation and parole departments.

Without inquiring further into Dockery’s failure to pay or the appropriateness of other punishment, the trial court revoked Dockery’s community control and imposed a consecutive sentence of an 18 month prison term of incarceration.  The court was kind enough to waive any remaining fines.  Dockery subsequently appealed the trial court’s findings.

Looking at this case, the appellate court stated that a defendant’s poverty does not shield him from punishment. Williams v. Illinois (1970), 399 U.S. 235.  However, to revoke a defendant’s community control simply for the nonpayment of court costs and fees, the defendant’s “failure must have been willful and not the result of indigence.” State v. Douthard (June 29, 2001) 2001 WL 725415.  The appellate court then looked for guidance for the U.S. Supreme Court’s case Bearden v. Georgia (1983), 461 U.S. 660.

The Bearden court held that depriving a probationer “of his conditional freedom simply because, through no fault of his own, he cannot pay the fine” would be “contrary to the fundamental fairness required by the Fourteenth Amendment.”

To avoid this, a sentencing court must inquire into the reasons for the failure to pay before revoking community control on that basis. Id.  If a probationer has willfully refused to pay the fine when he has the means to pay or has failed to make sufficient bona fide efforts such as seeking employment or borrowing money to acquire the resources to pay, the court may revoke community control and sentence the defendant to imprisonment within the authorized range of its sentencing authority. Id.  Conversely, if the probationer cannot pay despite sufficient bona fide efforts to acquire resources to do so, the court must consider means of punishment other than imprisonment.  Id.  Only if these alternative means of punishment as labor or public service in lieu of the fine are not adequate to meet the state’s interest in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay.  Id.

Based on the above findings, the appellate court remanded Dockery’s case to be heard in accordance with Bearden.

Looking at the Dockery case, the judge did give Dockery two warnings about violating community control sanctions.  However, sentencing Dockery to 18 months in prison on each count for a total of 36 months in prison does seem very harsh!  This was a little excessive for twenty-five cent crime.  The robbery charge, mentioned above, was eventually dismissed by the grand-jury for lack of prosecution.  That left using a controlled substance and not being able to pay his court costs and fines.  I think a different form of punishment would have easily satisfied the state’s interest in punishment and deterrence.



Armed Security Guards And Crimes Of Moral Turpitude: Holding Armed Security Guards To A Higher Standard

A few weeks ago I was bored at home and decided to watch Paul Blart Mall Cop starring Kevin James.  I heard it was a very stupid movie, but I figured I give it a chance because the wife was in the other room with the baby, and the remote was too far away from me to even contemplate getting up.  Being the stellar husband that I am, I yelled for my wife to get the remote for me.  The wife walked out into the living room, looked at me, and said “are you serious?”  In which I replied, “of course I am serious, so help a brother out.”  Well the wife walked back towards the baby’s room without tossing over the remote to me.  Ice cold on her part!  So, I was stuck watching the movie.  After watching the movie, I realized that getting up to get the remote to change the channel might not have been a bad idea.

It goes without question that Kevin James was making fun of what most American’s think of when we hear security guard; an overweight male, with a cheesy 1970’s mustache, horrible uniform, and a god complex.  But this blog article is not to give this fearless wonders a hard-time.

Security guards are very much a part of our daily activities.  Whether they guard shopping centers, concert venues, hotels, jewelry stores, hospitals, or apartment complexes, security guards are there ready to move at a moment’s notice on their super-duper cool Segway. (Okay, I slipped on that one.  I will try to refrain from the security guard jokes).

Now depending on the premise being protected, some security guards are armed.  The idea of armed security guards has always had a bit of criticism and hesitation behind it.  After all, don’t we have armed police officers that can save us from the bad guys?  Why should we allow individuals outside of police officers carrying firearms for the purpose of stopping a crime?  Although I think there are great arguments for and against armed security guards, I think the easiest answer is that a property owners should be allowed to protect their property with security guards that are licensed to carry firearms.  And in this day and age of domestic terrorism, many property owners where a large amounts of the public gather want to be able to protect their visitors.  A great example of using armed security guards to protect its visitors and property are hospitals.

To become an armed security guard, one must go through an application process.  Some requirements are that the individual is a U.S. Citizen, 21 years of age, no felonies, and hold a driver’s license.  In addition, the individual must complete a twenty-four hour firearms training course and requalify each year.  And just like a police officer, an armed security guard can have their license to carry a firearm revoked or suspended for violating their duties under the Ohio Revised Code.

Ohio Revised Code Section 4749 governs private investigators and security services.  R.C. 4749.04 allows the Director of Public Safety to revoke, suspend, or refuse the renewal of a security guard provider’s license for various reasons, to include crimes of moral turpitude.  For the purpose of this article, I will focus on crimes of moral turpitude.

R.C. 4776.10 defines crimes of moral turpitude as the following:

  • Committing Aggravated Murder or Murder;
  • Any offense under R.C. Section 2950: Sexual Predators, Habitual Sex Offenders, Sexually Oriented Offenders;
  • Any offense Act of Violence, if the offense is a felony of the first or second degree;
  • Complicity of Aggravated Murder or Murder;
  • Attempt or conspiracy to commit, or complicity in committing any of the above described offenses.

Looking at the above definition of crimes of moral turpitude, it is apparent that the Ohio Legislation wanted to hold armed security guards to a higher standard.  Just in case you were wondering, Acts of Violence include about thirty-five offenses under the Ohio Revised Code.

So who cares right?  Well I guess I care because in our ever changing world, I feel that we will see an increase in private armed security services.  It is nice to know that there are standards that the armed security guards must live up to in order to carry a firearm.  And remember, the above stated requirements are what the state of Ohio mandates.  Most armed security guard companies require their own specific training outside of Ohio’s mandated requirements.

I guess Paul Blart really is not that bad of a guy after all.  However, I will not be watching Paul Blart Mall Cop 2 and 3.  That is just getting ridiculous.  Now if you are looking for a great cinematic feature checkout Flash Gordon.  It is not every day you get to watch a New York Jets Quarterback take on Emperor Ming the Merciless on planet Mongo to save Earth!


Substantial Compliance Strikes Again: Ohio Supreme Court Creates A Blanket Rule For Blood Test Admissibility In OVI Cases

Legendary rock n’ roller Frank Zappa once said “The United States is a nation of laws: badly written and randomly enforced.”  After reading State v. Baker, 2016-Ohio-451, I could not agree more with Frank’s sound advice.  After all, Frank is full of good advice.  Don’t forget his warnings about not eatting the yellow snow.

In Baker, a pedestrian was struck and killed by the vehicle Baker was driving.  Ohio State Trooper Emery was dispatched to the scene to investigate.  Upon arrival to the scene, Trooper Emery made contact with Baker and instructed him to fill out crash statement form in his cruiser while he began his investigation.  Some point during his investigation, Trooper Emery walked backed to his cruiser to check on Baker.  It was at this time that Trooper Emery detected a strong odor of alcohol on Baker.  When asked about the alcohol, Baker told Emery that he had six or seven beers and was coming from a party.

After hearing Baker’s admission and given the death of a pedestrian, Trooper Emery transported Baker to the local hospital to administer Field Sobriety Tests and to conduct blood test for alcohol.  The hospital drew Baker’s blood and gave the OVI blood kit back to Trooper Emery.  The OVI blood kit contained two tubes of Baker’s blood.

With OVI Kit in hand, Trooper Emery headed back to his post to finish paperwork.  The OVI blood kit, however, remained in Trooper Emery’s cruiser for four hours and ten minutes prior to sending the OVI Kit to the Ohio Highway Patrol Crime Laboratory in Columbus.  At no time was the specimen refrigerated prior to its shipping.  Baker’s blood test result was .095 grams by weight of alcohol per one hundred milliliters (grams percent).

Based on Trooper Emery leaving the OVI Kit in his cruiser for a significant amount of time without refrigerating it, Baker moved to have the blood-alcohol test suppressed pursuant the Ohio Department of Health’s regulations on blood samples.  At the suppression hearing, Trooper Emery testified that he could have refrigerated the blood sample, but did not do so because it is not the highway patrol’s usual procedure.

The trial court agreed with Baker and suppressed the blood-alcohol result due to Trooper Emery’s failure to refrigerate the blood sample.  Not happy with this result, the state took it up with the appellate court.  The appellate court upheld the trial court, but it was split on the consequence of violating the Ohio Department of Health’s regulation.  Being 0-2 on getting this blood-alcohol test into evidence, the state filed with the Ohio Supremes to get their opinion on the matter.

With that, the Ohio Supremes were asked once again to figure out the admissibility of a blood test sample that was not refrigerated prior to transportation.

So this Ohio Department of Health regulation is codified under Ohio Administrative Code 3701-53-05(F).  This regulation states in an unambiguous manner, “While NOT in transit or under examination, all blood and urine specimens SHALL be refrigerated.” (emphasis added).  Pretty simple right??  Well leave it up to the courts to screw this up and make a blanket rule that states failure to refrigerate a blood or urine sample is not a de minimis error as long as the non-refrigeration time does not exceed a five hour time period.

The Ohio Supremes came up with this court-made rule based on State v. Plummer, 22 Ohio St.3d 292, and State v. Mayl, 106 Ohio St.3d 207.  In Plummer, the blood specimen was unrefrigerated for approximately one and half hours.  Interesting to note though is that the blood specimen was packaged, labeled, and delivered to the mail drop.  I am guessing that would be considered “in transit.”  In any event, the Plummer court held that three-to-four hour interval without refrigeration did not render the test results inadmissible.  Mayl had nothing to do with pre-transit refrigeration, but just cited to Plummer in its decision.  May, in a footnote, stated “failure to refrigerate a sample for as much as five hours has been determined to substantially comply with Ohio Admin Cod 3701-53-05(F).

So there you have it folks!  Non-refrigeration of a blood specimen that is pre-transit is good to go as long as it is under five hours.  If a police officer succeeds in accomplishing that task, he or she is in substantial compliance with the Ohio Department of Health’s regulation.

Now some might be thinking, what is the point of refrigeration of a blood or urine specimen if during actual transit to a laboratory there is no refrigeration requirement?  Chief Justice O’Connor addressed that very issue in her concurring opinion.

First and foremost, Chief Justice O’Connor cautioned against a blanket-rule approach and expressed her concern of the short comings of Ohio Admin Code 3701-53-05(F).  Moving past this, Chief Justice O’Connor questioned if while the specimen is in transit, does the ambient temperature relevant?  If the answer is yes, then Chief Justice O’Connor opined that substantial-compliance determination should take into account whether the unrefrigerated sample was stored in a hot car or in a climate-controlled building.  With those thoughts, Chief Justice O’Connor stated that courts need more guidance from the Ohio Department of Health to determine these questions.

I agree with Chief Justice O’Connor that the Ohio Department of Health needs to come out with better guidance with regards to refrigerated versus non-refrigerated blood specimens.  Hell, I get more guidance from my local liquor store on what happens to beer when it goes from a refrigerated environment to a non-refrigerated environment then back to a refrigerated environment.  And the owner even posts this information on the door of their walk-in beer cooler!  What can I say…my local liquor store is legit.

Looking at Baker, I believe it to be utterly absurd that it is okay for police to be laissez faire when deciding whether or not to follow a codified regulation from the Ohio Department of Health.  As Justice O’Neill stated in his dissent, “One man lies dead and another man faces a lengthy prison term if convicted of drunk driving.  This is no time to be treating the rules regarding admissibility lightly.”

An Alligator Walks Into A Bar: A Case Study Of Animals As Deadly Weapons

A distraught man walked into a Florida bar with his alligator and asked the bartender, “Do you serve lawyers here?”  Bartender, not knowing what to make of a man entering his bar with an alligator, began to chuckle a little and said “sure.”  With a big smile on his face the man told the bartender, “Good! One beer for me and a lawyer for my alligator!”

Lawyer jokes….got to love them.  Unfortunately, for some Wendy’s employees down in Florida, this joke is too close to home for laughter.

In recent news, a Florida man has been charged with tossing a live alligator into a Wendy’s drive-thru window.  Yep you read that correctly, a reptile known for eating any damn thing it wants was launched into a Wendy’s by a 24 year old jackass.

This all started when said jackass lured the three-and-a-half foot alligator from the side of the road to his truck.  After luring the alligator (maybe with candy?) to his truck, this good ole boy drove to his local Wendy’s to begin what he called a prank.  He placed his food order, drove up to the window, received his drink at the window, and then launched the alligator through the opening of the drive-thru window.  Whiskey Tango Foxtrot, over?!?

Luckily, no one was hurt and the game warden was able to wrangle this distant cousin of T-Rex.  But don’t worry there was no malice intent involved in this alligator incident.  According to Crocodile Dundee’s parents he was just playing a joke on some guy that he knew at the Wendy’s.  The mother was quoted as saying, “He’s a prankster.  He does stuff like this because he thinks it’s funny.”  A pie to the face is funny.  Live alligator launched at another human being….not so much.

Due to this prank, Mr. Dundee is facing aggravated assault with a deadly weapon without intent to kill, and various misdemeanor charges with regards to the alligator.

Full disclosure, I laughed the whole time reading how this guy launched an alligator through a drive-thru window.  It reminded me of my brother and his idiotic friends pulling a similar prank.  Only difference is they replaced the alligator with a large soda.  Prior to launching the soda back through the drive-thru window they would yell “FIRE IN THE HOLE!”  The biggest punishment they got was being yelled at by the on-duty manager.  They were true rapscallions.

Back to the crime at hand, let’s talk about the alligator being classified as a deadly weapon to show aggravated assault down if Florida.  Intrigued by this, I did some law-nerd research to see if an alligator or any another animal could be classified as a deadly weapon in Ohio.  Turns out it is possible.

Ohio Revised Code (R.C.) 2923.11 defines a deadly weapon as any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon.

Given that there are not too many alligator attacks in Ohio, I turned to cases involving dogs as deadly weapons.

In State v. Vinson, 2000-Ohio-3971, Cleveland Police responded to shots fired at the Vinson’s residence.  Upon making contact with Vinson, the officers observed him to become irate as he yelled at them for being on his property.  While the officers were trying to talk to Vinson, they could hear Vinson’s dog clicking his nails on the floor behind the front door.

Vinson continued to yell at the officers while keeping one hand on the front door handle.  At this point, the officers could hear the dog becoming increasingly agitated.  The dog now began to growl and urgently scratching at the front door.  Ignoring the dog and the officers, Vinson moved towards the front door as to reenter the house and yelled at the officers to get off his property.  Vinson then opened the front door which allowed the dog to charge the officers.

As the dog charged the officers, an officer recognized it as a full-grown pitbull.  Unfortunately for the pitbull, he was shot and killed by the officers.

During Vinson’s jury trial, the city Dog Warden testified that pitbulls are very loyal and protective of their owners.  In addition, the Dog Warden testified that pitbulls have jaws strong enough to crush bone and can hang on to anything their mouths grab for up to a half hour.

On appeal, Vinson argued that the state did not prove that his dog was a deadly weapon, that he intended to use the dog as such, and that he intended to use the dog to harm the police officers.  The appellate court disagreed.

The appellate court found that the state proved the dog fit the statutory definition of a deadly weapon and that Vinson knowingly used the dog in that manner against the police officers.

In other words, the court found that the pitbull was capable of inflicting death and was either possessed or used as a weapon.

Based on the above reasoning, I think it is a safe bet that an alligator could be considered a deadly weapon if it is launched at another person.

So for all you wannabe pranksters out there looking to score a fun time, leave the alligators alone and don’t throw them at people.  Just remember what the late great American Patriot John Wayne once said, “Life is hard; it’s harder if you’re stupid.”

Cop Chases and Liability: Ohio State Supreme Court Will Hear If Police Departments Are Liable For Bystander Injuries Caused By Police Pursuits

On June 17, 1994, Los Angeles Police Officers began their pursuit of a white Ford Bronco on Interstate 405.   The white Ford Bronco contained O.J. Simpson and his best friend Al Cowlings.  This highly televised event lasted for over two hours and is by far one of the most famous car pursuits in modern time.

I still remember being in my middle school geography class watching the O.J. Simpson chase live on the news.  Everyone in the classroom was glued to the television wondering how the chase was going to end.  Thankfully, it was a peaceful outcome for everyone involved.

In all honesty, watching a police car chase on television can be very exciting.  Hell, you might even catch yourself cheering for either the police or the suspect trying to out run the police.  And with the news helicopter capturing every image of the chase, you have that bird’s eye view of all the obstacles awaiting the suspect.  Maybe there is a police road blockade ahead or maybe the suspect has to dodge the average citizen driving along minding his own business without a clue of the events unfolding.

Sometimes though, that average citizen that got caught up in the police chase gets hurt.  So who is responsible for those injuries?  The suspect?  The police officers?  Those questions are making their way up to the Ohio State Supreme Court.

In Argabrite v. Neer, Ms. Argabrite was seriously injured when a suspected burglar crashed his car into her while fleeing from Miami Township Police Officers.  The suspect was pursued by police for about seven minutes over six miles of streets and highways.  Trying to get away from police, the suspect drove into opposing traffic and collided head-on with Ms. Argabrite.  The suspect died at the scene.

Ms. Argabrite’s lawsuit against the police officers argues that the police officers are the proximate cause of her injuries.  Ms. Argabrite is asking the Ohio Supreme Court to find against prior appellate court decisions which hold that police conduct must be extreme or outrageous before it can be deemed the proximate cause of a crash that causes the injury to a bystander hit by the fleeing suspect.

Although this blog is geared more towards traffic and criminal law, I feel this case goes hand in hand with traffic law.  Thus, I will be following this case to see how the Ohio Supremes rule.

When I look at this case, a part of me wants police to be allowed to protect citizens and go after the bad guys, while the other part of me does not want society to be put in danger because of a fleeing suspect.

To put this into perspective, let’s use the classic scenario of your child (or loved one) is in immediate danger.

First Scenario:  Child is kidnapped from the mall and the police are following the suspect.  The suspect and police are weaving in and out of traffic to rescue that child.  I think we are okay with police doing this because we don’t want the child to be delivered into the evil he/she will face.  The thoughts of molestation, rape, child pornography, child sex slave, and murder are images that we all fear when a child is kidnapped.

Second Scenario:  Child is trapped on the fourth floor of an apartment building.  All the bystanders can do is stand by and watch until the fire fighters show up to rescue the child.  Hopefully they get there in time to save this helpless child.

In both scenarios, the child in question is in immediate danger.  However, we don’t see fire trucks and ambulances driving at high rates of speed to get to the child that can very well be burned alive.  We see the rescue vehicles slow down when approaching busy intersections and drive at a speed just slightly above the speed limit.  However, with police vehicles, we see them go flying down the road for multiple reasons.

Both the police and the fire fighters want to rescue the child.  How they get to the child is very different.

This is merely just some food for thought of how I believe the arguments can go about police chases.  The Ohio Supremes will ultimately have a tough decision to make with regards to police chases.

Side note, there are municipalities that do not allow for police to pursue suspects at high rates of speed to avoid incidents like Ms. Argabrite’s case.