Jon Horwitz's Blog Posts

Fifth District Court of Appeals Holds that Consent Search Invalid

On March 22, 2017, the Fifth District Court of Appeals issued a decision affirming the Perry County Common Pleas Court’s ruling suppressing evidence obtained from the consent to search a suspect’s purse.

[Read more…]

6 Urgent Questions Answered About Civil Demand Letters

This issue comes up quite frequently.  A person gets caught shoplifting from a store.  He is detained by loss prevention officers.  The stolen property is recovered.  He is served with a trespass notice, barring him from returning to the store.  In some cases, the police are not contacted.  The person goes home angry with himself, but relieved that he does not have a criminal case to worry about.  In other cases, the police are contacted and criminal charges are filed.  The person goes to court, gets the case resolved.  The person pays fines, court costs, and restitution for any items that were damaged or not recovered and thinks that the case is finally over and that he can put this incident behind him. [Read more…]

Tenth District Court of Appeals Upholds Trial Court’s Decision Invalidating OVI Arrest

On February 28, 2017, the Tenth District Court of Appeals issued a decision affirming the Franklin County Municipal Court’s ruling suppressing evidence and invalidating an OVI arrest, due to the lack of probable cause.

In the case of State v. Bracken, 2017-Ohio-721, the Tenth District issued a rather brief decision explaining its reasoning.  The relevant portions state as follows: [Read more…]

Ohio Supreme Court Reconsiders Its Previous Decision and Holds that the Level of Offense for Cocaine Possession is Determined by the Total Weight of the Drug Involved, Including Filler Materials

On March 6, 2017, the Ohio Supreme Court did an “about face”, a “180”, a “flip-flop”, or whatever you want to call it, and vacated its landmark decision issued on December 23, 2016, in the case of State v. Gonzales. As you may recall, I wrote a blog post (//horwitzlawsite.com/ohio-supreme-court-holds-cocaine-cases-state-must-prove-weight-actual-cocaine-excluding-weight-filler-materials/) regarding this important decision. The December 2017 decision required the State in cocaine possession cases to prove the weight of actual cocaine in determining the level of the offense, independent of any filler materials. It acknowledged that modern technology now makes “purity analysis” possible. All seemed just in the world, as people possessing a small amount of actual cocaine mixed in with a large amount of filler material, would be prosecuted based upon the actual amount of illegal substance they possessed. [Read more…]

Stop & Search of Bicyclist

On December 16, 2016, the Second District Court of Appeals issued a decision affirming the Montgomery County Common Pleas Court’s ruling suppressing evidence seized by police from a bicyclist.

In the case of State v. Swift, 2016-Ohio-8191, Defendant Swift was riding his bicycle in the “travel part” of East Fourth Street in Dayton, Ohio, when Dayton Police officers observed him from their marked cruiser.  The police did a U-turn and approached Swift [Read more…]

Ohio Supreme Court Holds that Prior Juvenile Adjudications are not Prior “Convictions” for Subsequent Adult Offenses

Ohio Revised Code section 2901.08(A) states:

If a person is alleged to have committed an offense and if the person previously has been adjudicated a delinquent child or juvenile traffic offender for a violation of a law or ordinance, except as provided in division (B) of this section, the adjudication as a delinquent child or as a juvenile traffic offender is a conviction for a violation of the law or ordinance for purposes of determining the offense with which the person should be charged and, if the person is convicted of or pleads guilty to an offense, the sentence to be imposed upon the person relative to the conviction or guilty plea. [Read more…]

Ohio Supreme Court Holds that a Person is not subject to Criminal Prosecution in a Child Support Arrearage-Only Case

On December 23, 2016, the Ohio Supreme Court issued an important decision in the case of State v. Pittman, Slip Opinion No. 2016-Ohio-8314 involving the non-payment of a child support arrearage, thereby settling a dispute among various appellate courts.

In that case, Pittman was ordered to pay child support for his two children in 1988.  In 2006, the Family Court issued a judgment finding the children to be emancipated, as they had turned 18 years old and were no longer in high school.  As a result, the order of current child support terminated.  However, over the period between 1988 and 2006, Pittman fell behind in his child support obligation by approximately $34,000.  This $34,000 arrearage was addressed by ordering Pittman to pay approximately $237 per month until the arrearage was satisfied.  Pittman failed to make the $237 monthly arrearage payment as ordered.  [Read more…]

Ohio Supreme Court Holds that in Cocaine Cases the State Must Prove the Weight of Actual Cocaine, Excluding the Weight of Any Filler Materials

On December 23, 2016, the Ohio Supreme Court rendered a landmark decision in State v. Gonzales, settling a dispute amongst appellate courts regarding the interpretation of Ohio Revised Code section 2925.11, as it pertains to the determination of weight in cocaine cases. [Read more…]

Ohio Supreme Court Invalidates Portion of Statute Permitting Consecutive Sentences for Felony and Misdemeanor Offenses

 

On February 25, 2016, the Ohio Supreme Court issued a decision in State v. Polus that invalidated a provision of Revised Code section 2929.41, which pertains to Concurrent and Consecutive Sentences. (Concurrent Sentence = more than one sentence served at the same time; Consecutive Sentence = more than one sentence served one after the other.) [Read more…]

FAQS About Expungement

Expungement – FAQs

(UPDATED TO INCLUDE SENATE BILL 66 AMENDMENTS TO 2953.31 & 2953.32, EFFECTIVE 10/29/18)

What is an “Expungement”?

An expungement is the legal process in which a criminal offender (usually a first-time offender, or sometimes a second-time offender) seeks to have the records of his/her prior conviction(s) sealed, erased or destroyed.   Ohio law refers to expungements as the “sealing of record of conviction”.

What is the effect of having a record expunged?

The trial court would order that all the official records pertaining to the case be sealed, and all index references to the case deleted.  “The case shall be considered not to have occurred.”  Inspection of the sealed records is tightly restricted by the court.  The offender’s name would be removed from the clerk of court’s and other governmental agency’s public websites.

Who can apply to have a conviction (or convictions) expunged?

Prior to October 29, 2018, anyone who has been convicted of an offense who has not more than one felony conviction, not more than two misdemeanor convictions if the convictions are not of the same offense, or not more than one felony conviction and one misdemeanor.  Certain types of convictions cannot be expunged.

Effective October 29, 2018, “Anyone who has been convicted of one or more offenses, but not more than five felonies, in this state or any other jurisdiction, if all of the offenses in this state are felonies of the fourth or fifth degree or misdemeanors and none of those offense are an offense of violence or a felony sex offense and all of the offenses in another jurisdiction, if committed in this state, would be felonies of the fourth or fifth degree or misdemeanors and none of those offenses would be an offense of violence or a felony sex offense.”

What types of convictions cannot be expunged?

(A)   Convictions when the offender is subject to a mandatory prison term;

(B)   Convictions of the following:

  1. Convictions of any of the following sex offenses:
    1. Rape
    2. Sexual Battery
    3. Unlawful Sexual Conduct with a Minor
    4. Gross Sexual Imposition
    5. Sexual Imposition
    6. Pandering Obscenity Involving a Minor
    7. Pandering Sexually Oriented Material Involving a Minor
    8. Illegal Use of Minor in Nudity-Oriented Material or Performance
  2. Convictions for Motor Vehicle and Licensing Laws, such as:
    1. Convictions under Ohio Revised Code Chapter 4507: Driver’s License Law
    2. Convictions under Ohio Revised Code Chapter 4510: Driver’s License Suspension, Cancellation, or Revocation Laws
    3. Convictions under Ohio Revised Code Chapter 4511: Traffic Laws – Operation of Motor Vehicles
    4. Convictions under Ohio Revised Code Chapter 4549: Motor Vehicle Crimes
    5. PLEASE NOTE: Although convictions under this section are ineligible to be expunged, so long as they are minor misdemeanor violations, they DO NOT count towards the one felony/one misdemeanor or two misdemeanor case limits set forth above.

(C)   Convictions of an offense of violence when the offense is a misdemeanor of the first degree or a felony;

  1. However, the following violent offenses are still be eligible for expungement:
    1. Rioting
    2. Assault (misdemeanor of first degree version only)
    3. Inciting to Violence (misdemeanor of first degree version only)
    4. Inducing Panic (misdemeanor of first degree version only)

(D)   Convictions for Importuning on or after October 10, 2007;

(E)    Convictions on or after October 10, 2007 for the following offenses IF THE VICTIM OF THE OFFENSE WAS UNDER EIGHTEEN YEARS OF AGE:

  1. Voyeurism
  2. Public Indecency
  3. Compelling Prostitution
  4. Promoting Prostitution
  5. Enticement or Solicitation to Patronize a Prostitute
  6. Procurement of a Prostitute for Another
  7. Disseminating Matter Harmful to Juvenile
  8. Displaying Matter Harmful to Juvenile
  9. Pandering Obscenity
  10. Deception to Obtain Matter Harmful to Juveniles

(F)    Convictions of an offense in circumstances in which the victim of the offense was under eighteen years of age AND THE OFFENSE IS A MISDEMEANOR OF THE FIRST DEGREE OR A FELONY;

  1. This does not include convictions for Nonsupport or Contributing to Nonsupport of Dependents.

(G)  Convictions of a felony of the first or second degree;

(H)   Bail forfeitures in a traffic case as defined in Traffic Rule 2.

How long must a person wait before filing to have a criminal record expunged?

Prior to October 29, 2018, three years after the offender’s final discharge (completed all terms and conditions ordered by the trial court) if convicted of a felony, or at the expiration of one year after the offender’s final discharge if convicted of a misdemeanor.

Effective October 29, 2018, at the expiration of three years after the offender’s final discharge if convicted of one felony.  If the offender has been convicted of no more than five felonies, at the expiration of four years after the offender’s final discharge if convicted of two felonies, or at the expiration of five years after final discharge if convicted of three, four, or five felonies.  At the expiration of one year after the offender’s final discharge if convicted of a misdemeanor.

Is the trial court required to grant an expungement?

No.  Just because an offender is eligible to file for an expungement, does not mean that the trial court is required to grant the motion.

What findings must the trial court make before ruling on an expungement motion?

  1. The Court must determine whether the applicant is an eligible offender.
  2. The Court must determine whether criminal proceedings are pending against the applicant.
  3. The Court must determine whether the applicant has been rehabilitated to the satisfaction of the court.
  4. If the prosecutor has filed an objection, consider the reasons against granting the application specified by the prosecutor in the objection.
  5. Weigh the interests of the applicant in having the records pertaining to the applicant’s conviction sealed against the legitimate needs, if any, of the government to maintain those records.

Is there any reason not to have a criminal conviction expunged?

Absolutely not.  All eligible offenders should seek to have a conviction expunged at the earliest opportunity.  In today’s day and age, online court dockets make it rather easy for prospective employers and nosey neighbors to uncover negative information about a person.  Removal of a criminal record allows a person who has changed and learned from their past, to have a clean slate without the stigma of criminal conviction.

What if I don’t have a prior criminal conviction because the case was dismissed?

You should still seek to have that record sealed or expunged, as it is still out there publicly.  With dismissed cases, the law allows you to apply to have a dismissed case sealed immediately after the case is dismissed.

Who can view my expunged criminal records?

According to Revised Code 2953.32(D), “[i]nspection of the sealed records included in the order may be made only by the following persons or for the following purposes:

  1. By a law enforcement officer or prosecutor, or the assistants of either, to determine whether the nature and character of the offense with which a person is to be charged would be affected by virtue of the person’s previously having been convicted of a crime;
  2. By the parole or probation officer of the person who is the subject of the records, for the exclusive use of the officer in supervising the person while on parole or under a community control sanction or a post-release control sanction, and in making inquiries and written reports as requested by the court or adult parole authority;
  3. Upon application by the person who is the subject of the records, by the persons named in the application;
  4. By a law enforcement officer who was involved in the case, for use in the officer’s defense of a civil action arising out of the officer’s involvement in that case;
  5. By a prosecuting attorney or the prosecuting attorney’s assistants, to determine a defendant’s eligibility to enter a pre-trial diversion program established pursuant to section 2935.36 of the Revised Code;
  6. By any law enforcement agency or any authorized employee of a law enforcement agency or by the department of rehabilitation and correction as part of a background investigation of a person who applies for employment with the agency as a law enforcement officer or with the department as a corrections officer;
  7. By any law enforcement agency or any authorized employee of a law enforcement agency, for the purposes set forth in, and in the manner provided in, section 2953.321 of the Revised Code;
  8. By the bureau of criminal identification and investigation or any authorized employee of the bureau for the purpose of providing information to a board or person pursuant to division (F) or (G) of section 109.57 of the Revised Code;

This covers persons seeking employment as:

  • Teachers and school employees
  • Adult care and hospice positions
  1. By the bureau of criminal identification and investigation or any authorized employee of the bureau for the purpose of performing a criminal history records check on a person to whom a certificate as prescribed in section 109.77 of the Revised Code is to be awarded;

This covers persons seeking employment as:

  • Law enforcement or peace officers
  1. By the bureau of criminal identification and investigation or any authorized employee of the bureau for the purpose of conducting a criminal records check of an individual pursuant to division (B) of section 109.572 of the Revised Code that was requested pursuant to any of the sections identified in division (B)(1) of that section;

This covers persons seeking employment as:

  • Employees of state treasurer’s office
  • Persons seeking issuance or transfer of license, permit, or certificate of registration through department of commerce
  • Ombudsman or direct-care providers through department of aging
  • Directors or managers of various financial institutions
  • Real estate appraisers
  • Medicaid providers
  • Nursing home employees
  • Health care services (i.e., nurse, physician, etc …)
  • Attorneys
  • Casino or gambling house employees
  • Department of Developmental Disabilities employees
  • The care, custody, and control of children
  • Child day care providers
  • Home health care workers
  • Children services workers
  1. By the bureau of criminal identification and investigation, an authorized employee of the bureau, a sheriff, or an authorized employee of a sheriff in connection with a criminal records check described in section 311.41 of the Revised Code;

This covers persons seeking CCW licenses

  1. By the attorney general or an authorized employee of the attorney general or a court for purposes of determining a person’s classification pursuant to Chapter 2950. of the Revised Code;

This covers persons subject to sexual offender registration requirements

  1. By a court, the registrar of motor vehicles, a prosecuting attorney or the prosecuting attorney’s assistants, or a law enforcement officer for the purpose of assessing points against a person under section 4510.036 of the Revised Code or for taking action with regard to points assessed.

When the nature and character of the offense with which a person is to be charged would be affected by the information, it may be used for the purpose of charging the person with an offense.