Author Archives: Gary M. Hruska

New Expungement Law – Cleaning Up Your Record

Posted on by

expungement-ohio

Expungement In Ohio: What Is Eligibile To Be Expunged From My Record?

As of April 8, 2019, Ohio has switched up the rules on expungement once again, and made it easier for citizens to clean up their record. Expungement, however, is not a completely clean slate. According to Ohio law, expungement means that the records of arrest and conviction will be sealed from public access. An index will still be kept by the governmental agency, but those records won’t be accessible to the general public. It is important to note that DNA records will not be sealed in the ways that other records are, unless the conviction has been overturned. Additionally, you can request the sealing of records for more than one case in a single application, which will save you on application fees.

Eligibility

Per Ohio Revised Code Section 2953.32, the following can be expunged:

  1. 3 years after the final discharge if only one felony (This means 3 years after the completion of the sentence, probation, and  payment of fines, court costs, and restitution)
  2. 4 years after the final discharge if convicted of two felonies (This means 4 years after the completion of the sentence, probation, and payment of fines, court costs, and restitution)
  3. 5 years after the final discharge if convicted of 3, 4, or 5 felonies  (This means 5 years after the completion of the sentence, probation, and payment of fines, court costs, and restitution)
  4. 1 year after the final discharge after a misdemeanor (This means one year after the completion of the sentence, probation, and payment of fines, court costs, and restitution)
  5. See Ohio Revised Code Section 2953.32 for the exact language regarding bail forfeiture cases

Non-eligible Offenses

The following convictions cannot be expunged:

  1. convictions when the offender is subject to a mandatory prison term
  2. Sex offense convictions under §§ 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 2907.321, 2907.322, or 2907.323, and former 2907.12
  3. Convictions of violence when the offense is a misdemeanor of the first degree or a felony (except assault and few others)
  4. Convictions of a felony in the first or second degree
  5. Traffic offenses such as speeding, OVI, or reckless operation under Chapters 4507., 4510.,4511., or 4549.
  6. Convictions on or after October 10, 2007, under 2907.07 (importuning) or similar local laws when the victim is under 18
  7. Other sex offenses where the victim was less than 16 years old
  8. Bail forfeitures in certain traffic cases
  9. multiple convictions of an identical offense

What happens

After an application is filed with the court, the court will then set a date for a hearing, and notify the prosecutor for the particular case. The prosecutor is allowed to file objections to the application, and must specify why those objections are being made. The court will then direct the probation department to make inquiries and written reports as to the applicant. If the conviction is for a violation of 2919.21 (nonpayment of child support), the probation department will also contact the child support enforcement agency to ask about the applicant’s compliance with paying child support. The court will then make a decision regarding the application, reports and objections filed, as well as the public interest. Pending criminal proceedings and other issues will also be taken into account.

If you have any questions, or would like to discuss expungement under this new law, please contact Holzfaster, Cecil, McKnight & Mues, LPA.

Marsy’s Law – Expansion of Victims’ Rights

Posted on by

marsys-law

Victims Of Crime Can Now Petition Court To Be Heard And Participate In Proceedings Under Marsy’s Law

Marsy’s Law, or Issue One from the ballot in November 2017, is an expansion of victims’ rights in regards to notification and to be more involved in the criminal process. Additionally, who is classified as victim of a crime has been greatly expanded. Most importantly, victims of crimes may now petition the court via a motion or appellate review to make sure they are heard. This doesn’t mean that victims are now in control of the criminal court proceedings, but they are given the right to be heard and to participate in the proceedings. The law officially took effect February 5, 2018.

Who is protected under Marsy’s Law?

Marsy’s Law expands the traditional definition of victim to one that is more broad. Under the current law, victim only encompasses the person injured by certain types of crimes, as identified as victims in police reports. Now, the definition includes the person directly and proximately harmed by a criminal offense. For example, the parents of a child victim would be covered under this law, and gain the same rights to petition and be notified.

What is Gained under Marsy’s Law?

Under this new law, victims gain:

  1. The right to be informed of proceedings in writing
  2. The right to assert the rights described in the act via representative, and may appeal decisions based on those decisions
  3. The right to be treated with fairness and respect for the victim’s safety, dignity and privacy
  4. The right, UPON REQUEST, to reasonable and timely notice of all public proceedings
  5. The right to be present at the above proceedings
  6. The right to be heard in public proceedings that involve release, pleas, sentencing, disposition, or any other proceeding
  7. The right to speak with the prosecutor, upon request
  8. The right to proceedings free from unreasonable delay and a prompt conclusion of the case
  9. The right to refuse an interview, deposition, or other discovery request by the accused, except as described in the Ohio Constitution, Article 1, Section 10
  10. The right to full and timely restitution from the offender
  11. The right to reasonable protection from the accused, or any person acting on behalf of the accused
  12. The right UPON REQUEST to reasonable notice of escape or release of the accused

Who was Marsy?

Marsy Nicholas was a University of California Santa Barbara student who was stalked and killed by an ex-boyfriend in 1983. One week after her murder, Marsy’s family ran into the murderer at the grocery store, as he had been released on bail. After this traumatic event, Marsy’s brother, Dr. Henry T. Nicholas III, chose to purse an initiative to protect victims and their families from what his family experienced after his sister’s death.

Which States have Marsy’s Laws?

As of the writing of this article, Marsy’s Law has already been passed and enacted in California, Florida, Georgia, Illinois, Kentucky, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, and South Dakota. Other states are currently targeted to bring Marsy’s law to those states.

EDITOR’S NOTE: I want to thank our law extern, Lily Mann, for writing this article. Lily will be completing her JD degree from the University of Dayton School of Law in 2020. Nice job Lily!

For More Information, Check out the Links Below:

For the full text, see Article I Section 10a of the Ohio Constitution:

Ohio Introduces Reinstatement Fee Amnesty

Posted on by

Who Is Eligible For Driver’s License Reinstatement Fee Reduction?

drivers-license-reinstatement-fee

House Bill 336 creates a six-month driver’s license reinstatement fee amnesty reduction and waiver for offenders whose driver’s license has been suspended for certain violations.

The amnesty/reduction only applies to a driver’s license or permit suspension; it does not apply to a commercial driver’s license or commercial permit suspension.

The Ohio Bureau of Motor Vehicles will determine eligibility based on the specific qualifying offense contained in the Ohio Revised Code.

In order to be eligible for the driver’s license reinstatement fee reduction:

  1. Applicants must have completed all court-ordered sanctions related to the eligible offense other than payment of any reinstatement fees.
  2. At least 18 months must have passed since the end of the period of the suspension ordered by the Court.

Those able to provide proof of indigence will qualify for complete amnesty of reinstatement fees. House Bill 336 defines “indigent” as a person who is participating in the supplemental nutrition assistance program (SNAP) administered by the Department of Job and Family Services pursuant to Section 5101.54 of the Ohio Revised Code.

To apply, complete BMV form 2829, a BMV reinstatement fee amnesty application. You may obtain the form at your local Deputy Registrar, online at www.bmv.ohio.gov or it can be mailed to you by calling (614) 752-7500. Applications must be received or postmarked by July 31, 2019 to be eligible.

Supreme Court rules that warrants are required for cell phone location data

Posted on by

Law Enforcement Need Warrant To Gain Access To Cell Phone Data

cell phone law enforcement

“When the government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user”

A recent Supreme Court ruling limits the ability of law enforcement to obtain cell phone data that tracks the past locations of criminal suspects without a search warrant. The Court stated that police need a court approved warrant to get access to cell phone data that tracked the previous locations of a suspect.

Timothy Carpenter was convicted of several armed robberies in Ohio and Michigan with the help of past cell phone location data that linked him to the crime scenes. Justice Roberts’ opinion stated “We decline to grant the state unrestricted access to a wireless carriers’ database of physical location information”.

Ruling In Unrestricted Cell Phone Data Access Protects Privacy For Individuals And Is A Blow To Law Enforcement Surveilance

This ruling is a victory for individual privacy rights during a time when there is an increased concern over surveillance procedures of law enforcement and other intelligence agencies.

Justice Roberts further opined “that a cell phone is almost a feature of human anatomy and that a cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctors’ offices, political headquarters and other potentially revealing locales”.

As a result he said “when the government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user”. (Carpenter v. United States).

Fourth Amendment “Automobile Exception” Remains Limited

Posted on by

Huge win for advocates of the Fourth Amendment

fourth amendment automobile exception

The Fourth Amendment’s purpose is to protect the interest and privacy of the home and its curtilage first and foremost

INTRO

On May 29, 2018, the Supreme Court of the United States issued a decision that states that the police cannot search a car parked on private property without a warrant. This is in effect despite an exception to the warrant requirement of the Fourth Amendment that applies to automobiles. Justice Sotomayor writing the opinion for the majority declines to extend the Automobile Exception to vehicles that are parked within the curtilage of a home as it is not justifiable to intrude on a person’s privacy interest in his home and curtilage.

WHAT HAPPENED?

After the driver of a black and orange motorcycle with an extended frame alluded the police for two traffic violations, officers of the Albemarle County Police Department conducted an investigation. This resulted in finding out that the motorcycle was likely stolen and in the possession of a Ryan Collins (hereafter, “Collins”). They were even able to find photographs of the motorcycle and Collins on Facebook that led them to believe that the bike and Collins were at his girlfriend’s home.

An officer drove to the home and parked on the street to do some surveillance. As it turns out, there seemed to be a motorcycle with an extended frame covered by a tarp at the top of the driveway. The bike was even parked in the same location and the same angle as it was in the Facebook photos. The officer’s actions that followed this surveillance are what this case is primarily about.

After the officer observed what he could from the street, he took a photograph from the sidewalk and then proceeded to walk onto the residential property of Collins’ girlfriend’s home. He walked up the driveway to where the bike was parked. He then pulled the tarp off which revealed a bike that looked just like the one from the two traffic violations. The officer then ran the plates and its VIN which confirmed that the bike was in fact stolen. Once he took a photo of the bike, he recovered it with the tarp and went back to his vehicle. He waited there until Collins returned home. Shortly after, Collins was arrested.

At the lower court, Collins attempted to have the evidence obtained from a warrantless search of the motorcycle suppressed by arguing that the officer trespassed on the curtilage of the home and violated his Fourth Amendment rights. However, this motion was denied and he was found guilty. Collins was convicted of receiving stolen property which both the Court of Appeals of Virginia and the Supreme Court of Virginia affirmed, though for different reasons.

The Court of Appeals believed that the officer had probable cause to believe the motorcycle was the same one as from the traffic infractions and that his actions were justified by “numerous exigencies” allowed by the Fourth Amendment. The Supreme Court of Virginia however believed that the officer’s actions were protected by the “Automobile Exception” to the Fourth Amendment’s warrant requirement. The Court said that the officer had probable cause to believe the motorcycle was contraband and that the warrantless search was justified on those grounds.

SO WHAT’S THE BIG DEAL?

Under normal circumstances, the Fourth Amendment requires the police to obtain a search warrant in order to conduct a search. While there are a few exceptions to this rule, the one in question today is one that applies to cars, known as the “automobile exception.” This gives the police the ability to search a vehicle without a warrant as long as they have probable cause to believe there is evidence of a crime inside and if the car is what they call “readily movable.”

As previously mentioned, the Supreme Court of Virginia believed that the officer’s actions fell under the automobile exception and were therefore justified. However, the Supreme Court of the United States declined to extend the exception to justify intrusions made on the curtilage (The area immediately surrounding a home) and reversed the decision made by the Supreme Court of Virginia.

It seems that the Court was trying to find a balance between the right to privacy within the curtilage of one’s home and the justification for the automobile exception of “ready mobility” of cars. As a result, the majority ruled that the right to privacy is not displaced by a police officer’s need to search a vehicle when it is within the curtilage of a home. The Fourth Amendment’s purpose is to protect the interest and privacy of the home and its curtilage first and foremost. Not even the justifications for the automobile exception can trump that.

WHY DOES THIS MATTER?

This was a huge win for advocates of the Fourth Amendment because it is keeping the protections given to us as citizens broad and the exceptions the police can use limited. As for this case, Collins isn’t entirely in the clear. While the Court reversed the decisions made by the lower courts, they also sent it back to the state courts for more proceedings. Virginia will have another chance to win its case against Collins, but it would have to be under another theory – possibly a different exception to the warrant requirement. If anyone is interested in reading the full opinion of the court, the case name is Collins v. Virginia and you can find the court opinion here.

EDITOR’S NOTE: I want to thank our Summer extern, Ashlyn Gallant for all her research and writing of this blog article! Ashlyn is in her third year of law school at the University of Dayton School of Law.