In probably the most important Ohio Supreme Court decision pertaining to sex offenders, the state’s highest court announced on July 13, 2011 that Senate Bill 10, effective January 1, 2008, is unconstitutional as applied to offenders who committed their offenses prior to the effective date. The Supreme Court of Ohio held that application of the law to offenders who committed their offenses prior to its enactment violates the Ohio Constitution’s prohibition against the passing of retroactive laws.
In State v. Williams (2011), 129 Ohio St. 3d 344, ¶22, Justice Pfeifer, writing for the majority, opined: “We conclude that S.B. 10, as applied to Williams and any other sex offender who committed an offense prior to the enactment of S.B. 10, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from enacting retroactive laws.” The Court determined that S.B. 10 is punitive and imposes “new and additional burdens, duties, obligations or liabilities as to a past transaction.” Id. at ¶9.
Subsequent to its decision in Williams, the Ohio Supreme Court applied its holding to juvenile sex offenders whose offenses occurred prior to the enactment of S.B. 10. In re D.J.S. (2011),130 Ohio St. 3d 257.
This type of law is commonly referred to as an “ex post facto” law, which means, “after the fact.” The United States Constitution also contains prohibitions against the enactment of ex post facto laws. The Court’s ruling has tremendous implications for sex offenders.
The most important effect is that any sex offender, adult or juvenile, who was sentenced under the registration provisions of S.B. 10 and whose offense occurred prior to the effective date has an immediate remedy in the court of his/her conviction or disposition. That remedy is a motion for re-sentencing or a motion for new disposition hearing.
The Supreme Court’s ruling means that the law is a null and void as applied retroactively. Any offender who is currently reporting under the provisions of S.B. 10 for an offense committed prior to the effective date should seek redress in the court of conviction or juvenile disposition.[1] The offender should be re-sentenced under the registration provisions that were in effect at the time he/she committed the sex offense. The offender may want to consult with an attorney about filing the motion for re-sentencing.
[1] This procedure is unnecessary if the offender has already been notified by the court of conviction/disposition that he is being re-sentenced and will be notified of a new sentencing/hearing date.
DRAM SHOP/LIQUOR LIABILITY—OHIO LAW
If you have been seriously injured by a drunk driver, you may have a cause of action for damages against the seller of alcohol who sold intoxicating beverages to the drunk driver. Under Ohiolaw, a person may sue and recover damages from a licensed provider of alcoholic beverages that sells/furnishes alcohol to an intoxicated person under certain circumstances.[1]
A person is entitled to recover against the seller if:
(A) The person suffered injury caused by the negligent acts of the intoxicated person;
(B) The seller or one or more of its employees furnished intoxicating liquor or beer to the patron, after it was known to the seller or any of the seller’s employees that the patron was noticeably intoxicated.[2]
(C) The intoxication of the patron (drunk driver) proximately caused the person’s injuries and damages.[3]
A plaintiff can establish a defendant’s actual knowledge of one of its patron’s intoxication through either direct or circumstantial evidence that the liquor permit holder or it’s employee’s relation to, control over or direction of the patron’s condition was such as to give him actual personal information concerning that condition. A plaintiff can establish a defendant’s actual knowledge of intoxication through direct testimony that the patron in question acted intoxicated or expert testimony that the patron would have given off noticeable signs of intoxication based on the amount of alcohol consumed.[4]
A liquor permit holder has a statutory duty to observe and know when a patron is intoxicated.[5]
I have handled many of these cases and have obtained successful results (see Case Highlights page). It is imperative that you speak with an attorney about potential bar/restaurant liability when you have been seriously injured by a drunk driver. You must be proactive and ask the police if they investigated where the drunk driver consumed alcohol prior to the accident. The police have a responsibility to investigate whether a bar or restaurant owner violated Ohio’s Dram Shop law and, if so, provide you with an additional means of recovering damages for your injuries. Many bars and/or restaurants have large commercial liability policies that provide coverage for your injuries over and above what the drunk driver’s insurance may cover.
You must not hesitate. Act quickly. CALL NOW FOR A FREE CONSULTATION so I can help you obtain additional compensation for your injuries against the seller/furnisher of alcohol.
[1] O.R.C. §4399.18
[2] O.R.C. §4399.18(A)(1)
[3] O.R.C. §4399.18(B)
[4]Sullivan v. Heritage Lounge, 2005-Ohio-4675, Franklin App. No. 04AP-1261;
Bickel v. Moyer (Sept. 29, 1994), Hancock App. No. 5-94-14, 1994 Ohio App. LEXIS 4416;
Hlusak v. Sullivan (Cuyahoga 2000), Cuy. App. No. 74367, 2000Ohio App. LEXIS 2903.
[5] Lesnau v. Andate Enterprises, Inc. (2001),93 Ohio St. 3d 467, 469, Ohio Rev. Code §4301.22.
So the police are at your house and have some questions. They want to come inside and speak with you. The officer asks, "May I come in?" What should you do? Do you invite him in? Answer: NO. NO. NO. Are they conducting an investigation of you or a family member? You must find the answer to that question. If so, then the police are on a mission to solve a crime and obtain evidence. Your information may become evidence against you or someone else in your family. You have an absolute right to refuse entry into your home AND an absolute right to refuse to speak with the officer. What if the officer says if I refuse to answer questions he will charge me with obstruction of official business or obstruction of justice? WRONG. You have a constitutional right to refuse to answer questions and such a refusal is not a crime. In order to commit a crime, you must do an affirmative, positive act to impede the officer's investigation or obstruct his investigation. Silence, or the refusal to open a door, is not an affirmative act. There are plenty of cases that say a failure to speak or open a door when asked by an officer does not constitute a crime. So, politely tell the officer you are not going to allow him to enter your residence or answer any questions. As you close your door, you may want to add, "Have a nice day."