Snow Emergency Follow-up

If I didn’t know better I would think the Dispatch was following me! Here’s the story about snow emergencies (and arrests) that posted January 24, 2019 - 3 days after I posted about snow emergencies. https://www.dispatch.com/news/20190124/who-sets-those-leves-for-snow-emergencies-and-does-anyone-ever-get-arrested
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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

You Can Be Arrested For Driving During a Level 3 Snow Emergency

The past two weekends have brought us plenty of snow and plenty of snow emergencies with some counties reaching Level 3. And every time the media starts reporting snow emergencies they dutifully recap the various levels and, when discussing Level 3 Snow Emergencies, always inform us that it is illegal to be on the roads during a Level 3 and drivers could be arrested. But is it true - could you really be arrested for driving home from work during a Level 3 snow emergency? Yes, you could.

Ohio Revised Code 311.07 and 311.08 give the county sheriff broad powers and duties, including the authority to declare a snow emergency and temporarily close roads. Ohio Attorney General Opinion 86-023 confirmed this authority for county and township roads. The question was later posed to the Attorney General whether the authority to close roads extended to state and municipal roads. Ohio Attorney General Opinion 97-015 concluded the authority to temporarily close roads extends to all roads within the county. Relying on Opinion 86-023, it was noted that "the sheriff is the chief law enforcement officer in the county, with jurisdiction coextensive with the county, including all municipalities and townships" and that "there is no reasonable basis for distinguishing between the different types of roads and streets that are located within the county." Plainly stated - the sheriff can close the roads in the county to preserve the peace and safety.

So, if you are driving during a Level 3 Snow Emergency - the roads are closed - what can you be charged with and will you be arrested? Most likely you will charged with "Misconduct at an Emergency" in violation of Ohio Revised Code 2917.13 (or a similar local ordinance). Revised Code 2917.13(A)(3) prohibits a person from knowing failing to obey a lawful order of a law enforcement officer at an emergency. "Misconduct at an Emergency" is a M4, which carries a potential maximum of 30 days in jail, unless the misconduct "creates a risk of physical harm to persons or property" and then a violation is a M1 with a potential maximum of 180 days in jail. With the potential of jail upon conviction, it is an arrestable offense.

In practice, officers have discretion and usually understand snow emergencies sometimes occur quickly, people are delayed in getting home, or may be deemed "essential" employees required to work even during emergencies. If you're driving during a Level 3 Snow Emergency and you're stopped by an officer, politely let him/her know why you are out driving. If you are running for a pizza or beer, you will likely get a ticket (or maybe arrested - but likely just a ticket to appear in court later) but if you have a good reason, you may get a warning.

No matter your reason for driving during a Level 3 Snow Emergency, if you are cited (or arrested) for "Misconduct at an Emergency" or any other charges for being on the roads, you need to protect your rights and consult counsel. Politely take your ticket, get home as quickly and safely as possible, and give us a call. 

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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

Another Motion to Dismiss for Delayed Prosecution

Nine months ago I posted about a client charged with escape in 2005 but not brought before the court and indicated on the charge until 2017. During those intervening years my client was incarcerated. That case was dismissed and you can read about it here.

In late 2018 I started representing a client charged with assault in 2014. A review of the court docket makes it appears as if my client simply absconded from the court. But nothing could be further from the truth.

On the date of the alleged assault, my client was not arrested. Law enforcement responded to an incident after the incident allegedly occurred. Officers took statements from the alleged victim and my client. My client was not arrested at that time.

Several days later the State filed an assault complaint against my client. The State attempted to serve a summons via mail to my client's last know address but service failed. My client did not appear for his arraignment and the court issued a warrant for his arrest. It wasn't until over four years later he was arrested on the warrant.

So what's the issue? On the same day the State filed the assault complaint, my client was incarcerated in another county. He was subsequently sentenced to two years incarceration. My client was in the State's custody for two years while they supposedly had an active warrant for his arrest and no one ever served it on him. To make matters worse - for the State - he was released from prison after serving his two years while there was an active warrant for his arrest on the assault charge without anyone notifying him of the pending case. The State absolutely failed to notify my client of the pending charges.

I recently filed a Motion to Dismiss the case against my client based upon the State's delay in prosecuting the case. I fully expect at the hearing on the motion the case will be dismissed as the State, no matter how hard it may try, can justify delaying execution of a warrant and prosecution of this matter when my client was in the State's custody for two years and then released him from prison with an active warrant.

I have yet to receive a date for the hearing - assuming the State even wants to proceed with one and doesn't just dismiss the case (as they should). I will update this post once a hearing is held and decision by the court has been issued.

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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

Misdemeanor or Felony - What's the difference?

What's the difference between a misdemeanor crime and felony crime? Depending on who you ask it could be the seriousness of the crime, what court can hear the case, or the potential penalties. I always use the potential penalties (and court jurisdiction) explanation - if incarcerated as part of the sentence upon conviction, a person can only serve local jail time for misdemeanors but incarceration for a felony is served in prison. Only the common pleas court can hear felony cases.

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.


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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

2018 Year In Review

2018 was a good year - starting with a jury trial not guilty in January and ending with a not guilty in a vehicular manslaughter jury trial in December. But not all successes end in jury trial and are often resolved through motions and oral arguments. Such was the case for a client charged with F2 aggravated trafficking (mandatory prison time) that was dismissed. There are simply too many successful resolutions for client matters this year to detail them all but here are some statistics for the year:

• Opened in 2018: 93 criminal matters, 122 total;
• Closed in 2018: 96 criminal matters, 113 total;
• 57 matters both opened and closed in 2018;
• 45 criminal matters remain pending; and
• New Clients in 2018: 70.

As part of my criminal defense practice, I accept both felony and misdemeanor court appointment cases. In 2018 I provided over 700 hours of indigent criminal defense representation.

Thank you to all the clients that trusted the Nicodemus Law Office with your legal matters in 2018. I look forward to continuing to provide legal representation to the residents of Fairfield County in 2019.

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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

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.