Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense other than self-defense, defense of another, or defense of the accused rebels residence as described in a following paragraph, is on the accused.
A person is allowed to act in self-defense, defense of another, or defense of that person’s residence.
A person is presumed to have acted in self-defense or defense of another when using defensive force that is intended or likely to cause death or great bodily harm to another if the person against whom the defensive force is used is in the process of unlawfully and without privilege to do so entering, or has unlawfully and without privilege to do so entered, the residence or vehicle occupied by the person using the defensive force.
The presumption of having acted in self-defense or defense of another does not apply if : the person against whom the defensive force is used has a right to be in, or is a lawful resident of, the residence or vehicle or the person who uses the defensive force uses it while in a residence or vehicle and that person is unlawfully, and without privilege to be, in that residence or vehicle.
Residence means a dwelling in which a person resides either temporarily or permanently or is visiting as a guest.
Vehicle means a conveyance of any kind, whether or not motorized, that is designed to transport people or property.
Something to keep in mind in today’s social environment. If you have any questions or you want further clarification consult an attorney.
People often talk about Marsy’s Law. Here’s somethings you should know:
If you are a victim of crime you have the right:
To fair and respectful treatment which includes your safety, dignity and privacy
Upon request to notice of and the right to be present at all proceedings that involve the alleged accused in your case
The right to be heard In any public proceeding in which your rights are implicated.
To reasonable protection from the alleged accused or people acting on his/her behalf(family and or friends)
Upon request to reasonable notice of any release or escape of the alleged accused
To refuse discovery requests made by the alleged accused except as authorized by law (the Ohio Constitution)
To full and timely restitution
To proceedings without unreasonable delay
Upon request to confer with the government’s attorney.
This is not meant to be an exhaustive list but rather an attempt to give you enough information so that you have a better idea where you stand if you ever become the victim of a crime. For specific answers to specific question talk to the prosecutor who is handling your case.
BAC or Blood Alcohol Concentration is a measure of alcohol in the body. It is measured by testing the
breath, urine and saliva.
In Ohio you are considered impaired if you test .08 which is 8/10 of a drop of alcohol for every 1000
drops of blood. If you are under 21 and you test at .02, or if you are a commercial driver and you test at
.04, you are considered to be impaired.
Several factors affect a person’s absorption of alcohol. They include: weight, gender, amount of food
you’ve eaten and the time spent drinking ( how much and how often for how long).
Driving skills are impaired, especially judgment, in most people before they exhibit visible signs of being
intoxicated. For example at .03 your divided attention, choice reaction time, visual function, tracking and
steering, standing and steadiness will be affected. At .05 your information processing, judgment and
coordination will be impaired and at .08 your concentration and speed control will be impaired. These
impairments are cumulative meaning that the impairments you exhibited at .03 and
.05 will also be exhibited at .08. This is what the field sobriety test will be looking for.
So, if you’re going to drink spread it over the evening, limit the amount you drink and if you’re not sure
you should drive you probably shouldn’t.
breath, urine and saliva.
In Ohio you are considered impaired if you test .08 which is 8/10 of a drop of alcohol for every 1000
drops of blood. If you are under 21 and you test at .02, or if you are a commercial driver and you test at
.04, you are considered to be impaired.
Several factors affect a person’s absorption of alcohol. They include: weight, gender, amount of food
you’ve eaten and the time spent drinking ( how much and how often for how long).
Driving skills are impaired, especially judgment, in most people before they exhibit visible signs of being
intoxicated. For example at .03 your divided attention, choice reaction time, visual function, tracking and
steering, standing and steadiness will be affected. At .05 your information processing, judgment and
coordination will be impaired and at .08 your concentration and speed control will be impaired. These
impairments are cumulative meaning that the impairments you exhibited at .03 and
.05 will also be exhibited at .08. This is what the field sobriety test will be looking for.
So, if you’re going to drink spread it over the evening, limit the amount you drink and if you’re not sure
you should drive you probably shouldn’t.
A Civil Stalking Protective Order or a Civil Sexually Oriented Offense Protective Order can be brought by someone who is being menaced by stalking or victims of a sexually oriented offense. Filing criminal charges is not required. The person being stalked or menaced can seek relief on their own behalf.
Any parent or adult household member may seek relief on behalf of any other family or household member.
If the respondent (the accused) is 18 or older the Court of Common Pleas is where you go to seek the order. An Ex Parte Order (meaning only the complaining party was present at the time) may be signed(granted) by a Magistrate. If an Ex Parte Order is granted there will be a hearing within ten court days of the order being granted. If an Ex Parte Order is not granted the case will follow the normal civil action proceedings
The Common Pleas Court that you should go to get this Order is the Common Pleas Court where you, the petitioner, resides.
The Order will be in effect for a specified period up to five years and it may be renewed. Objections to the Order may be filed after the Court has issued a final appeal able order. Violation of the Order can result in either a criminal charge being filed or a contempt of court being filed.
Any parent or adult household member may seek relief on behalf of any other family or household member.
If the respondent (the accused) is 18 or older the Court of Common Pleas is where you go to seek the order. An Ex Parte Order (meaning only the complaining party was present at the time) may be signed(granted) by a Magistrate. If an Ex Parte Order is granted there will be a hearing within ten court days of the order being granted. If an Ex Parte Order is not granted the case will follow the normal civil action proceedings
The Common Pleas Court that you should go to get this Order is the Common Pleas Court where you, the petitioner, resides.
The Order will be in effect for a specified period up to five years and it may be renewed. Objections to the Order may be filed after the Court has issued a final appeal able order. Violation of the Order can result in either a criminal charge being filed or a contempt of court being filed.
As a parent, you cannot give alcohol to your teen’s friends under 21. Not even in your own home even with the permission of the friend’s parents.
You cannot knowing allow a person under 21 who isn’t your child to remain in your home or property while they are consuming or possessing alcohol.
If you get caught you could face a maximum sentence of six months in jail and a $1000 fine.
You could be sued if you gave alcohol to anyone under 21 and they hurt someone, hurt themselves or damaged property.
The police can take any alcohol, money or property they find that was used in committing the offense.
Play it safe, refuse to supply alcohol to anyone under 21; be home when your teen has a party; make sure alcohol isn’t brought into your home or onto your property by your teen’s friends and if it is occurring despite your best efforts either bring it immediately to an end or report it.
You cannot knowing allow a person under 21 who isn’t your child to remain in your home or property while they are consuming or possessing alcohol.
If you get caught you could face a maximum sentence of six months in jail and a $1000 fine.
You could be sued if you gave alcohol to anyone under 21 and they hurt someone, hurt themselves or damaged property.
The police can take any alcohol, money or property they find that was used in committing the offense.
Play it safe, refuse to supply alcohol to anyone under 21; be home when your teen has a party; make sure alcohol isn’t brought into your home or onto your property by your teen’s friends and if it is occurring despite your best efforts either bring it immediately to an end or report it.
No one wants to be arrested, but an unpleasant experience can become worse if you take any action to worsen the situation. Therefore, it’s generally advisable to follow the officer’s requests.
In Ohio you resist arrest when you recklessly or forcibly resist or interfere with your arrest or the arrest of another. The arrest has to be lawful, if not you may be able to use that as a defense in your case.
Other possible defense could be self defense, police misconduct, that the officers did not identify him or herself, that the person making the arrest was not a law enforcement officer. Inasmuch as resisting arrest can be either a misdemeanor or a felony.
In Ohio you resist arrest when you recklessly or forcibly resist or interfere with your arrest or the arrest of another. The arrest has to be lawful, if not you may be able to use that as a defense in your case.
Other possible defense could be self defense, police misconduct, that the officers did not identify him or herself, that the person making the arrest was not a law enforcement officer. Inasmuch as resisting arrest can be either a misdemeanor or a felony.
A Domestic Violence Temporary Order (DV TPO) can be sought when a criminal charge of domestic violence, stalking, criminal damaging, criminal endangering, criminal mischief, burglary, aggravated trespass, a sexually oriented offense or any offense of violence has been perpetrated against a family or household member. The criminal charge can be either a misdemeanor or a felony.
The Municipal Court, the County Court or the General Division of the Court of Common Pleas has jurisdiction over the case.
The Order will remain in effect for the duration of the criminal case or until a DV CPO is issued that arose out of the same activity.
The Municipal Court, the County Court or the General Division of the Court of Common Pleas has jurisdiction over the case.
The Order will remain in effect for the duration of the criminal case or until a DV CPO is issued that arose out of the same activity.
Occasionally you may hear about a person having to make restitution in other words pay someone for something they lost e.g. a gun taken during a burglary.
In general restitution is discretionary with the trial court it must be considered but the court doesn’t have to order it. The amount ordered must be a part of the sentencing order. The order must be made with the defendant present and on the record.
The Court cannot modify the amount of the restitution after the sentence is imposed. The Court can modify the payment terms. The amount ordered must be reasonably related to the offense. The amount must be based upon the amount of loss incurred by the victim. Restitution cannot be ordered on charges on which the defendant was found not guilty.
Restitution can be ordered for pretrial diversion programs, intervention in lieu of conviction and post release control.
A restitution order is mandatory in:
In my next blog I’ll talk about the amount, the hearing and who can be the recipient.
In general restitution is discretionary with the trial court it must be considered but the court doesn’t have to order it. The amount ordered must be a part of the sentencing order. The order must be made with the defendant present and on the record.
The Court cannot modify the amount of the restitution after the sentence is imposed. The Court can modify the payment terms. The amount ordered must be reasonably related to the offense. The amount must be based upon the amount of loss incurred by the victim. Restitution cannot be ordered on charges on which the defendant was found not guilty.
Restitution can be ordered for pretrial diversion programs, intervention in lieu of conviction and post release control.
A restitution order is mandatory in:
- Human Trafficking Specification
- Kidnapping
- Abduction
- Compelling Prostitution
- Promoting Prostitution
- Illegal Use of a Minor in Nudity
- Oriented Material or Performance
- Endangering Children Engaging in Pattern of Corrupt
- Activity
- Theft in Office
In my next blog I’ll talk about the amount, the hearing and who can be the recipient.
A criminal protective order can be sought when the criminal charges of felonious assault; aggravated assault; assault; aggravated menacing; menacing by stalking; aggravated trespass; menacing or a sexually oriented offense is committed against someone who is NOT a family or household member. The offense can be either a misdemeanor or a felony.
The Court that has jurisdiction over the case be it a municipal court or a common pleas case can hear the case.
The order once it is granted will remain in effect for the duration of the criminal case or until a Criminal Stalking Protective Order or a Civil Sexually Oriented Offense Protective Order is issued arising out of the same activities.
The Court that has jurisdiction over the case be it a municipal court or a common pleas case can hear the case.
The order once it is granted will remain in effect for the duration of the criminal case or until a Criminal Stalking Protective Order or a Civil Sexually Oriented Offense Protective Order is issued arising out of the same activities.
1. The economic tables have been updated. Unlie the old tables these new tables are based upon real numbers, like actual earnings.
2. The guideline tables now begin at a combined gross annual income of $8400 and they max out at $300,000.00 The new minimum support order has been increased from $50.00 per month to $80.00 per month.
3. The new guidelines eliminates the current deductions from a parent's gross income for amounts paid for children under pre-existing support orders and amounts for amounts for children from another parent not involved in the current support case. This eliminates the result of giving the first child to file for child support the highest order.
4.. Parenting time Adjustments- the new law provides a 10% parenting time adjustment for all parenting time orders if the parent paying support has 90 overnights a year which is roughly every other weekend and one night per week. If the parenting time exceed 147 overnights per year the court Shall consider a deviation and the court Must issue findings and recommendation if the court chooses not to allow a deviation.
5. There's a cap on child care credit.
6. Imputing income - if the following factors exist, the court or the CSEA is prevented from determining that a parent is voluntarily underemployed or unemployed:
- the parent is receiving recurring money from general assistance
- the parent is approved for Social Security Diability
- it is determined that the parent cannot work based upon medical documents that include a physician's diagnosis of physical or mental disability that prevents the parent from being able to work
- the parent has proven that he or she has made a continuous and diligent effort, without success, to find and accept employment including temporary, part time or employment as less than his or her previous wage
- the parent is complying with court ordered family reunification efforts in a child abuse, neglect or dependency proceeding that limits that parent's ability to earn income
7. Medical Support- the obligee is rebuttably presumed to provide coverage but the presumption can be rebutted if:
- the obligor already has health insurance coverage available at a reasonable cost
- the obligor has coverage, while not reasonable in cost, that he or she wishes to continue to provide
- the Obligor can obtain coverage that is reasonable in cost (consideration must be given to the length of the employment and the stability of the insurance if it is employer based)
- the obligee is a non-parent or agency.