The First One - Again!

About a year ago I published the first post in this blog. For the next few months I managed to publish a few posts - and then there were none. It's not because there is a lack of legal articles and topics to discuss, there just was not always enough time. So, here I am again, publishing another "first" post with the hopes that I will be more consistent in my posts.

In the event you want to read the real "First One" here's the quick link to it: https://nicodemuslawoffice.blogspot.com/2018/01/the-first-one.html.

I am marginally better at posting to social media so you can always follow the practice and my thoughts and musing on legal issues on Facebook and Twitter.

• Facebook: https://www.facebook.com/NicodemusLaw/
• Twitter: https://twitter.com/Nicodemus_Law

Thanks for reading and I promise I will try to post more!

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The Nicodemus Law Office, LPA
Phone: 740-422-9280
Website: www.nicodemuslaw.com
Facebook: https://www.facebook.com/NicodemusLaw/
Twitter: https://twitter.com/Nicodemus_Law

Criminal Pre-Trial Delay Leads to Dismissal

Ohio law is favorable to the State when it comes to Statute of Limitations, tolling of time, and pre-trial delay. The burden, even though technically shifted to the State in Motion to Dismiss for Pre-Trial delay, is often still on the defendant. A recent case of mine addressed the issue of pre-trial delay and highlights why everyone deserves a high-quality defense and why justice demands it.

In June 2017 my client was charged with F5 Escape, i.e., alleging he was arrested for a misdemeanor crime and escaped from police custody after his arrest. At arraignment and subsequent bond hearing (which was denied) I raised the issue of pre-trial delay which violated my client's rights guaranteed under the Sixth Amendment. I subsequently filed a Motion to Dismiss and had the matter set for a hearing. Prior to the hearing - and I must give credit to the prosecutor for reviewing the case and determining they could not justify the delay - the case was dismissed. So what happened that someone arrested for an alleged crime and then allegedly escaped custody would then have the case dismissed? It all started over 11 years ago.

In December 2005 my client was allegedly arrested for a misdemeanor for which he could have been jailed upon conviction for up to 6 months. Once arrested and in police custody, he allegedly escaped the police cruiser and was not able to be re-apprehended by the police. In January 2006 a complaint for escape was filed and a warrant for his arrest was issued. That warrant was not executed until late May 2017 and was indicted for escape in June 2017.

In the intervening 11 years, my client was arrested, indicted, and convicted on numerous other charges in numerous counties throughout the state. In all, he was convicted in at least two other counties of numerous felonies for which he served the better part of five years in prison. After his release from prison - while the escape warrant was still active - he was indicted on new state felony and federal firearms offenses which he was convicted of and served another five years in federal prison. After his release from federal custody - again while the escape warrant was active - he was again arrested, jailed, and released, on new charges, in the same county that had the active escape warrant. It wasn't until he was arrested for a failure to appear warrant on pending charges that he was finally served the 2006 warrant for escape.

So what's the problem - there was an active warrant for escape and now he was going to be accountable for the allegations against him. Luckily for all of us we have rights guaranteed by the United States Constitution and Ohio Constitution. Eleven years, with all the intervening arrests and imprisonments when the State could have easily brought the defendant before the court to answer for his crimes, was simply too long and prejudicial against the defendant's rights.

Eleven years of delay undoubtedly prejudiced – i.e, impaired the ability of the defendant to adequately to prepare his case and skewed the fairness of the entire system – leaving the only question for the court to determine if the delay was justifiable. Barker v. Wingo, 407 U.S. 514, 532 (1972). Generally, there are two scenarios that result in an unjustifiable delay as a matter of law – where the state acts intentionally to disadvantage the defendant and where the state ceases an investigation and later resumes its case based upon the same information. State v. Luck, 15 Ohio St.3d 150 (1984).

In this case, the Court did not need to make a determination regarding the eleven year delay. After laying out the evidence I intended to introduce at a hearing on this matter to the prosecutor, and he evaluated it, it was determined that the State could not sufficiently prove justification for delaying prosecution for 11 years. Subsequently, the indictment against my client was dismissed and he was released from custody.

Without investigating my client’s past, his prior convictions, developing a timeline of all the occasions the State could have brought him before the court for his alleged crimes but did not and, reviewing dozens of similar cases, my client may still be in jail with an escape charge.

All persons accused of crimes deserve this same level of representation. If you or someone you know has been charged with a crime, call the Nicodemus Law Office at 740-422-9280 or complete the contact form to schedule your consultation and protect your rights.

Police & Prisoners Sex Prohibited

As recent as January 2018, there were 35 states that permitted police officers can have sex with persons they have arrested and were in custody. “Permitted” might be the wrong adjective to describe the encounters but when the other 15 states describe sexual encounters between police and prisoners as sexual assault, it certainly isn’t prohibited.

In March the State of New York passed a law prohibiting sex between police officers and persons in their custody. In Ohio, sex between persons – even consensual sex – is illegal, and has been for years, if there is a power dichotomy between the persons. In 2014 the Eighth District Court of Appeals, in Cuyahoga County, upheld a sexual battery conviction of a probation officer that engaged in sex with a probationer.

Ohio Revised Code 2907.03 delineates sexual battery and includes numerous prohibitions between persons in authority positions and their subordinates. Health care professionals and patients, teachers and students, prison workers and prisoners, and police officers where the other person is in custody are all prohibited sexual encounters – even if all parties are adults.

In determining the probation officers committed sexual battery by engaging in sex with a probationer, the Court determined

R.C. 2907.03(A)(6) represents an exception to the general rule which permits sexual activity between consenting adults. As reflected in the committee comment, the section proscribes even voluntary sexual activity between an inmate and a person who has supervisory or disciplinary authority over the inmate. The purpose of the statute is to protect from sexual abuse those who come under the care and custody of the State. The statute is directed at those situations where the offender, through power conferred by the State, is able to coerce or force sexual activity by the misuse of that authority.

State v. Maresh, 2014-Ohio-3410, ¶ 41 (8th Dist. Cuyahoga)

Ohio Revised Code 2907.03 has effectively determined that a person cannot consent to sexual encounters with another person in certain situations.

OVI Overview

While Annie's Law may have changed some the sentencing requirements upon conviction of OVI, those changes still require a conviction. But how does an officer work towards obtaining evidence for a conviction?

From the moment an officer suspects you are driving impaired he is attempting to collect evidence against you. An officer may believe you to be impaired when he first notices your vehicle based on your driving (weaving, fluctuations in speed, etc) or during a traffic stop for other purposes (you're driving at 1AM on a Saturday with a license plate light out).

Your driving, your speech, the odor of your breath and clothes, and your ability to provide your driver’s license are all factors the officer will consider when determining whether or to ask you to submit to Standardized Field Sobriety Tests (FSTs).  After determining you are impaired based upon the FSTs, the officer will place you under arrest and transport you to a police station. At the station the officer will ask you to submit to another test – usually a breath test.

To blow or not to blow? Put simply, without a scientific test to prove your impairment the State has a harder time convicting you (though a jury can still find a person guilty based upon the FSTs). But there can be additional consequences if you don't blow - increases in driver's license suspension times and there may be professional ramifications for those with professional licenses, CDLs, etc. Additionally, some courts do not generally grant limited driving privileges during the pre-trial phase of the case if there is a refusal on a breath or other chemical test.

But just because the officer says you failed the FSTs or that you have a test result that indicates you over the legal limit, it does not mean you were impaired and guilty. Minor deviations in the FSTs can effect the results the officer observes and breath-testing machines and the officers that operate them have stringent guidelines that must be followed.

What surprises most people that take standardized field sobriety tests and a breath test (or other chemical test like urine or blood) is that they are charged with two OVI offenses. 

Ohio’s OVI laws are extremely specific and technical and it takes trained OVI attorneys to protect your rights. If you, or someone you know, has been charged with an OVI, you must obtain counsel to protect your rights. The Nicodemus Law Office will fully investigate your OVI charge and will protect your rights if you have been charged with an OVI. Call 740-422-9280 or complete the CONTACT FORM to schedule your consultation. 

Grandparent Visitation Rights - Overview

Ohio recognizes in the inherent right of parents to make decisions regarding their children's upbringing. But grandparents also have rights that are statutorily defined. If grandparents are prohibited from seeing their grandchildren the courts can become involved, in certain circumstances,  to determine if the statutory requirements are met for granting grandparent time.

The most crucial requirement for the assertion of grandparent rights is there be a court action involving a "divorce, dissolution of marriage, legal separation, annulment, or child support proceeding" involving the child. Once a court has jurisdiction over a child, that court can also determine whether grandparents should be permitted visitation rights with their grandchild.


The Nicodemus Law Office has worked with both parents and grandparents in these matters. Whether you are a grandparent yearning to see your grandchild or a parent seeking to prohibit grandparent time, contact the Nicodemus Law Office at 740-422-9280 or complete the CONTACT FORM to schedule a consultation.

Misdemeanor v. Felony - What's the Difference

In Ohio, criminal offenses are classified as either misdemeanor or felony offenses (there's also unclassified misdemeanors and felonies but that is an entirely different discussion). Misdemeanor offenses are typically heard by the municipal or county court and may even be heard in a mayor’s court. Felony offenses are heard in a common pleas court. Some common misdemeanors are petty theft and OVI. Some common felonies are theft, forgery, aggravated drug possession, and drug trafficking.

Both misdemeanor and felony offenses are separated into degrees based on the severity of the offense with a minor misdemeanor being the least severe offense and a first degree felony being the most severe. In many instances a crime may be classified as either a felony or misdemeanor depending on the facts and circumstances of the alleged crime.

The potential maximum penalties for misdemeanors and felonies are:

Degree of Offense	Maximum Fine	Maximum Incarceration
Minor Misdemeanor (MM)	$150	None
Fourth Degree Misdemeanor (M4)	$250	30 days - local jail
Third Degree Misdemeanor (M3)	$500	60 days - local jail
Second Degree Misdemeanor (M2)	$750	90 days - local jail
First Degree Misdemeanor (M1)	$1,000	180 days - local jail
Fifth Degree Felony (F5)	$2,500	12 months - prison
Fourth Degree Felony (F4)	$5,000	18 months - prison
Third Degree Felony (F3)	$10,000	3 or 5 years - prison
Second Degree Felony (F2)	$15,000	8 years - prison
First Degree Felony (F1)	$20,000	11 years - prison

Some crimes, such as OVI, rape, and murder, have specified penalties outside the chart above. Other factors may also enhance the maximum penalties such as the use of a firearm, the age of the victim, or if the person is a repeat offender.

All criminal charges should be taken seriously. Even a minor misdemeanor can have an effect on your life. If you have been charged with a crime, or are a suspect in a criminal investigation, you should consult with an attorney.

The Nicodemus Law Office, LPA, regularly represents persons charged with all degrees of offenses, from minor misdemeanors to felonies. Call 740-422-9280 or complete this CONTACT FORM to schedule a consultation and protect your rights.

Divorce or Dissolution

The decision to end a marriage is never an easy one, even when both parties agree that the marriage should end. The decision, and the process is even more difficult when you and your spouse are less than amicable. Children, business interests, and long term marriages add additional stress and tension. Divorce and Dissolution are the two most common ways to terminate a marriage in Ohio. However, many people don't understand the difference between the two.

If you have been served with divorce papers or are contemplating ending your marriage, contact the Nicodemus Law Office at 740-422-9280 or by completing the CONTACT FORM to schedule a consultation to discuss your rights.

Divorce

Divorce is adversarial by nature - one spouse suing another. The State of Ohio has enumerated 11 specific reasons a person may file for and be granted a divorce (see RC 3105.01). Often the most contentious issues in a divorce are not the the reasons for the divorce but are instead the issues of custody of children and division of the marital property.

While it is true that most divorces are resolved prior to trial, that resolution only comes after the parties and their attorneys fully discuss and litigate all the issues. Litigating these matters may also include Guardians for the children or experts to place values on marital property and businesses. Divorces, even when they resolve without a trial, can take a year or more to complete.  

Dissolution

A Dissolution may be an appropriate way to terminate a marriage when both parties are aware and agree that a marriage needs to end and they believe they can resolve all marital matters between themselves amicably.  Sometimes, even when spouses haven't fully agreed on all issues, they may agree a dissolution is preferable (often when children are involved) and will engage an attorneys to help resolve any issues.

Dissolutions are often resolved much quicker than divorces. By law, once a Petition for Dissolution is filed, the court must hear the matter within 90 days.