Scott M. Kuboff, Esq.
Northeast Ohio Trial Attorney

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Ohio Expands Expungement Eligibility on October 29, 2018

For those in Ohio who have a criminal record — and certainly those who were previously ineligible to have their record expunged — please know that, effective October 29, 2018, Ohio has greatly expanded the eligibility requirement for criminal expungements.

An “expungement” is the legal process for which an individual’s criminal record of arrest or record of criminal conviction is sealed. It’s important to know that the record is not destroyed but, rather, sealed. Meaning the record is maintained, however, is not subject to public disclosure. The legal effect of having your record “sealed” or “expunged” is that the crime for which you were charged or convicted did not happen. It is wiped clean.

In Ohio, three statutes are important to know and understand if you are interested in having your criminal record or criminal conviction expunged.   First, R.C. § 2953.31(A) defines who is an “eligible offender.”  Next, R.C. § 2953.32(A) sets forth the waiting period before someone can file for an expungement.  Finally, R.C. § 2953.36 sets forth various offenses are simply ineligible to be sealed. 

R.C. § 2953.31(A) – NEW LAW GREATLY INCREASES ELIGIBILITY

Perhaps the most significant change in Ohio’s new expungement law is the definition of “eligible offender.”  Previously an eligible offender was a person who had not more than “one felony conviction, not more than two misdemeanor convictions , or not more than one felony conviction and one misdemeanor conviction.”  If you had two felonies, you were ineligible.  If you had a felony and two misdemeanors, you were ineligible.  If you had three misdemeanors, you were ineligible.      

Now, a person can have up to FIVE felonies and UNLIMITED misdemeanors and still be ELIGIBLE.   If you have a felony conviction or convictions, those convictions must ALL be of the fourth degree (F4) or fifth degree (F5), must be non-violent, and must not be sexually-oriented in order to have ANY conviction sealed.  So, if you have not more that five non-violent, non-sexual felonies, that are all F4 or F5, you can get those, as well as ALL of your misdemeanor convictions, if any, sealed.       

R.C. § 2953.32(A) – WAITING PERIOD TO FILE

Under the old law, an eligible offender had to wait one year upon the conclusion of a misdemeanor sentence or three years for a felony.   Under the new law, the “waiting period” is:

  • ONE year – Misdemeanor convictions

  • THREE years – One felony conviction

  • FOUR years – Two felony convictions

  • FIVE years – Three, four, or five felony convictions

The waiting period starts to run once the sentence has expired; meaning you’ve satisfied all conditions of the sentence, probation, post-release control, or otherwise discharged.

 R.C. § 2953.36 – CONVICTIONS THAT CANNOT BE SEALED

Although there were major changes in terms of eligibility, certain offenses simply cannot be sealed:

  • Convictions for first degree (F1) and second degree (F2) felonies

  • Most sexually oriented offenses and those that are otherwise not excluded but where the victim is under the age of 18

  • Sexually oriented offenses otherwise not excluded where the victim is

  • Convictions under chapter 4507, 4510, 4511, or 4549 of the Revised Code

  • Felony and misdemeanor offenses of violence (with the exception of assault, riot, inducing panic, and inciting violence)

  • Felony or first degree misdemeanor (M1) convictions where the victim of the offense was less than 16 years old (with the exception of Criminal Non-support)

  • Offenses that carry mandatory prison sentences

Want to find out if you’re eligible to have a conviction, or convictions, sealed? Please contact Scott for a no cost, no obligation consultation and case evaluation.

New OVI/DUI Law In Effect

Ohio H.B. 388, known as "Annie's Law," modifies Ohio's OVI/DUI sentencing in significant ways and is effective April 6, 2017.  Most notably, Annie's Law provides the following changes:

Unlimited Privileges with Ignition Interlock 
Under former OVI/DUI law, courts granted "limited" driving privileges for work, school, medical appointments and court.   These privileges restricted people's ability to drive except for the limited times on specified days.  

Under Annie's Law, first-time OVI/DUI offenders can now obtain "unlimited" driving privileges provided, of course, that an ignition interlock device is installed in their car.   An ignition interlock is, for lack of a better description, a portable breathalyzer that is connected to your car.   In order to start the car, you must pass a breath test.

Jail Suspended for First Offenders with Ignition Interlock
Under former OVI/DUI law, a first offender had to serve a minimum of 3 days in jail.   Most had the privilege to do so at a 3-day Driver Intervention Program (DIP) which are hosted in local hotels. 

Under Annie's Law, if the first offender has "unlimited" privileges with the interlock device, the court must suspend all jail during the period of the license suspension.  

Longer License Suspensions
Annie's Law increased the license suspensions for all offenders:

1st OVI/DUI:  1 to 3 years (was 6 months to 3 years)
2nd OVI/DUI: 1 to 7 years (was 1 to 5 years)
3rd OVI/DUI: 2 to 12 years (was 2 to 10 years)

1/2 License Suspensions for First Offenders with Ignition Interlock
For first offenders with "unlimited" privileges and an interlock device, the court can reduce the license suspension by half.  In other words, a 1 year suspension would be 6 months with an interlock device.  

10-Year "Look-Back" Period
OVI/DUI are "enhanceable" offenses; meaning each subsequent offense comes with increased penalties.   The "look-back" period is the time between (1) date of old conviction and (2) date of new charge.  Under former OVI/DUI law, the "look-back" period was 6 years.  Under Annie's Law, the "look-back" period is 10 years. 

For More Detailed Information
Garfield Heights Municipal Court Judge Jennifer Weiler publishes the gold-standard for OVI/DUI sentencing and penalties.   I do not know any OVI/DUI lawyer who doesn't have a copy of this guide in his or her briefcase.   Check it out here.  

If you have been charged with an OVI/DUI, want a comprehensive defense, and need immediate driving privileges, contact Scott, for a no cost, no obligation consultation and case evaluation. 

UYR: NCAA Tournament Brackets

Let’s face it, at some time or another we have all filled out a NCAA tournament bracket. If you’re doing it for “fun” – e.g. not paying to be in a pool – you don’t have to worry, there is nothing illegal about filling out a bracket. However, most people pay some type of fee to participate in a larger pool of friends or co-workers hoping that their bracket earns them some loot. Is this illegal? Well, if you’re in Ohio – and just about every other State – absolutely, it is considered “bookmaking” and it is an illegal. 

        The Ohio Revised Code defines “bookmaking” as “business of receiving or paying off bets.” R.C. § 2915.01(A). A “bet” is defined as “hazarding of anything of value upon the result of an event, undertaking, or contingency, but does not include a bona fide business risk.” R.C. § 2915.01(B). Furthermore, R.C. § 2915.02(A)(1) prohibits “[e]ngag[ing] in bookmaking, or knowingly engage in conduct that facilitates bookmaking.” A person “facilitates bookmaking” if they “plac[e] a bet with a person engaged in or facilitating illegal bookmaking.” R.C. § 2915.02(B). 

        So your co-worker who is responsible for collecting the fees is, legally speaking, engaged in illegal bookmaking. And you, by paying your fee to participate, are facilitating bookmaking. Both acts are illegal. In Ohio, it is a misdemeanor of the first degree carrying a potential jail sentence of six months and a possible fine of up to $1,000.00. 

        That being said, the likelihood of the police knocking on your door or arresting your entire office is remote. With the widespread social acceptance of NCAA pools, and very minor wagers involved, it is unlikely the state will invest resources in investigating and prosecuting these crimes.