CHILD ENTICEMENT STATUTE HELD UNCONSTITUTIONAL
The Ninth District Court of Appeals has joined two other appellate districts in Ohio in concluding that Ohio’s Child Enticement Statute, O.R.C. §2905.05(A), is unconstitutional.[1] In State v. Goode,[2] the appellate court ruled that the statute “prohibits a wide variety of speech and association far beyond the statute’s purpose of safeguarding children.” Id. at ¶8. Because the statute does not require that a person have any illicit purpose in soliciting, coaxing, enticing, or luring “any child under fourteen years of age to accompany the person in any manner,” the court found that the statute penalizes innocent conduct. As an example, the Ninth District pointed to the scenario where parents picking up their child from school would theoretically violate the statute simply by asking their child’s friend if he or she wanted a ride home.
The appellate court noted that other states with similar statutes at least require an illicit purpose or intent. For example, the Florida legislature enacted a statute that prohibits a person from luring a child “into a structure, dwelling, or conveyance for other than a lawful purpose * * * .” Id.
The Ninth District also concluded that the affirmative defense to the statute did not save it from being overbroad. The affirmative defense provided that an actor who undertook the activity in response to a bona fide emergency situation, or undertook the activity in a reasonable belief that it was necessary to preserve the health, safety, or welfare of the child, would be shielded from criminal liability. The court rejected the affirmative defense, reasoning:
However, even if the affirmative defense would arguably protect Good Samaritan parents, it still would not protect a child asking another child to go to an after-school event or on a bike ride. These are very basic societal interactions going to the very idea of speech and association. By prohibiting these, the statute necessarily infringes on protected speech and conduct.
Id. at ¶9.
The Ninth District Court of Appeals noted that the intent of the legislature was admirable by attempting to prevent child abductions or the commission of lewd acts with children. However, the need to protect our children cannot be accomplished at the sacrifice of our constitutional freedoms.
The court spelled out a simple remedy to the members of our legislature to bring the statute within constitutional muster. The statute needs to be amended by adding the additional element of illegal purpose or intent. Thus, if a “person, by an means and without privilege to do so, knowingly solicits, coaxes, entices, or lures any child under fourteen years of age to accompany the person for other than a lawful purpose, including entering into any vehicle or onto any vessel, whether or not the offender knows the age of the child,” then that person may be found guilty of violating the statute.
Three Ohio appellate courts have found the statute unconstitutional. How long will it take for our legislature to amend the statute and protect our children?
[1] The other two appellate districts that have held the statute unconstitutional are the Second and Tenth Appellate Districts. State v. Chapple, 175 Ohio App. 3d 658 (2008); State v Romage, Franklin App. No. 11AP-822, 2012-Ohio-3381 (2012).
[2] State v. Goode,Summit App. No. 26320, 2013 Ohio 556 (February 20, 2013)
THE MANY MYTHS OF A DUI TRAFFIC STOP
(1) When the officer approaches your car and asks you for your identification, i.e., driver’s license, you must produce it or you will be guilty of obstructing official business. FALSE.
Under Ohiolaw, the mere refusal by an individual to produce a driver’s license at the request of a police officer, or to answer questions, does not amount to obstructing official business. An individual must commit an affirmative act, i.e., turning up the stereo so loud that the officer can’t hear anything other than the music, in order to commit such an offense.
(2) When a police officer requests you to perform field sobriety tests, you must comply. FALSE.
Again, as in the answer to No. 1, there is no obligation of a motorist to step outside of his vehicle and give the officer evidence to convict him. Refusing to perform field sobriety tests is not obstruction of official business. Rather, it may be one of the smartest things to do, especially if you feel you may have had one too many at the local bar.
(3) If I tell the officer I only had one or two beers, he is more likely to believe me and let me go than if I tell him I had 6 or 7. FALSE.
Police officers have heard “I only had two drinks” or “I had one beer” so many times that they assume you are probably lying to them. If you are going to lie to the officer, why would you tell him that you had anything to drink? Moreover, the officer may think you had two 24 oz drafts just one hour ago, and therefore you are probably over the limit. The more information you give him, the more potential evidence the State has to use against you at trial. So, to avoid lying to the officer, you are probably better off saying nothing for the reasons stated above.
(4) If I do well on the field sobriety tests, he will let me go. FALSE.
First, your definition of well and the officer’s definition are probably not one and the same. You are at a clear disadvantage. You don’t know how well you will do on the tests even if you feel you are fine. In my experience, I have yet to see a situation where my client did great on field sobriety tests and the officer let him go. The officer will inevitably tell you that you didn’t do well. You will be arrested. So, should you do the field sobriety tests???
(5) If he arrests me, I am better off testing because if I don’t, I will lose my license for a year.[1] PARTIALLY TRUE BUT MISLEADING.
You will lose your license for 1 year if you don’t blow. But you may also seal your fate and be convicted of OVI by giving the State convincing evidence of your intoxication. Further, you may win an ALS appeal of the 1 year suspension of your license if the officer didn’t have reasonable grounds to believe your were operating a vehicle under the influence of alcohol or if he failed to properly advise you of the consequences of testing or refusing to test. You may also obtain driving privileges even though your license is suspended for a year.
(6) If I’m operating my ATV on my property and I’m intoxicated, I can’t be convicted of OVI. FALSE.
Under Ohiolaw, you can be convicted anywhere in Ohio, on public or private property, for operating a vehicle under the influence of alcohol.
(7) If I’m riding my bicycle under the influence of alcohol, I can’t be charged with OVI. FALSE.
Unfortunately, bicycle is still included in the definition of “vehicle” in the OhioRevised Code. However, you cannot be convicted of OVI for riding a horse while under the influence of alcohol. Other types of vehicles that you can be convicted for OVI: snowmobiles, farm tractors, golf carts.
[1] On a first offense in six years, it is 1 year. If it is a second refusal in 6 yrs, then it is 2 years.
NEW JUVENILE REFORM LAW RELAXES RESTRICTIONS ON SEALING JUVENILE AND ADULT CRIMINAL RECORDS
Our elected representatives in Columbus have passed a new reform law that will make it easier for juveniles and adults to put their criminal past behind them.
Senate Bill 337 takes effect on September 17, 2012. The new law provides sweeping changes to the sealing of juvenile and adult records. In the area of juveniles, the law now allows records to be expunged after six months instead of two years except in cases involving murder, attempted murder, or rape. Two sex offenses that could not be sealed in the past—sexual battery and gross sexual imposition—can now be sealed.
The law also is designed to help young offenders obtain employment and other opportunities once they are released from prison by eliminating various restrictions and limitations for individuals with misdemeanor and felony convictions.
Additionally, young adults can stay in juvenile confinement up to age 21 instead of being detained with adult criminals and teenagers will receive credit for time served. As part of the legislation, the Department of Youth Services will mandate minimum training standards for juvenile probation officers.
Among the important provisions that apply to adults are:
-
Adult offenders can now apply to seal one felony conviction and one misdemeanor conviction, or two misdemeanor conviction
-
Penalties for driving under suspension are reduced when that offense is not a key factor in the crime and the Ohio Bureau of Motor Vehicles will allow a repayment plan for license reinstatement fees
-
Courts may grant limited driving privileges when a license is suspended for failing to pay child support
-
Judges may consider a parent’s incarceration when determining earning capacity for child support
-
The Board of Cosmology many no longer deny a license based on a prior conviction
-
The penalty for possession of drug (marijuana) paraphernalia is decreased from a misdemeanor of the fourth degree to a minor misdemeanor
OHIO SUPREME COURT RULES THAT AUTOMATIC LIFETIME NOTIFICATION AND REGISTRATION REQUIREMENTS FOR JUVENILES TRIED IN JUVENILE SYSTEM VIOLATE DUE PROCESS AND CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT
In a 5-2 opinion, the Supreme Court of Ohio held on April 3, 2012 that an Ohio law that imposes automatic, lifelong registration and notification requirements on juvenile sex offenders tried within the juvenile system violates the Eighth Amendment’s and Ohio Constitution’s prohibitions against cruel and unusual punishment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Ohio Constitution, Article I, §16.[1]
The Athens County Prosecutor filed a complaint in juvenile court against C.P., who was 15-years-old at the time, alleging that he was a delinquent child for committing two counts of rape and one count of kidnapping with sexual motivation. Each count was a first-degree felony if committed by an adult. The victim, a 6-year-old boy, was a relative of C.P.
The state, desiring that C.P. be sentenced as a serious youthful offender (“SYO”), sought and obtained an indictment against him with an SYO specification attached to each of the three counts.
On September 23, 2009, C.P. entered admissions to the three charges in the indictment. At a disposition hearing, the court found C.P. to be a SYO on each offense and imposed a three-year minimum commitment to the Ohio Department of Youth Services on each offense, to run concurrently. The court imposed three concurrent five-year prison terms as part of the SYO disposition and stayed all three terms pending successful completion of his juvenile disposition.
Pursuant to Ohio Rev. Code §2152.86(A)(1)&(B)(1), the court advised C.P. of his lifelong registration and notification requirements. C.P. was classified as a public-registry-qualified juvenile-offender registrant (“PRQJOR”). He was automatically classified as a Tier III sex-offender/child-victim offender. The judge advised C.P. of the draconian registration requirements that would follow him for the rest of his life:
(1) the duty to register in person with the sheriff of the county where he resides within 3 days of coming into that county or if temporarily residing in such county for more than 3 days;
(2) if you change residence address, you shall provide written notice of that change to the sheriff in the county where you reside and to the sheriff of the county where you intend to reside 20 days prior to that change of residence;
(3) you must provide the sheriff temporary lodging information including address and length of stay if your stay is more than 7 days;
(4) you must register in person with the sheriff of the county where you establish a place of education immediately upon entering that county;
(5) you must register with the sheriff of the county where you are employed for more than 3 days or for an aggregate of 14 days in a calendar year;
(6) you must provide written notice of change of address of your place of employment or place of education at least 20 days prior to any change and no later than 3 days after the change of employment;
(7) you must provide written notice within 3 days of any change in vehicle information, e-mail addresses, internet identifiers or telephone numbers (including cell phone) registered to or used by you to the sheriff with whom you are most recently registered;
(8) you must verify this information every 90 days for the rest of your life;
(9) failure to register, failure to verify on the specific notice and times will result in criminal prosecution.
C.P. appealed his automatic classification as a Tier III juvenile-offender registrant and his PRQJOR to the Fourth District Court of Appeals asserting that the statute violated his due process rights and his right to be free from cruel and unusual punishment. The appellate court affirmed the trial court’s judgment.
Justice Pfeiffer wrote the majority opinion when the case came before the Supreme Court of Ohio. He analyzed the significant differences between the registration requirements for PRQJORs and JORs. One of the key differences, he noted, is that for the majority of juveniles over age 14 who are adjudicated delinquent, they are not automatically classified as Tier III offenders. If the offender meets the definition of juvenile offender registrant (JOR), then the court must hold a hearing to determine the JOR’s tier classification. If the juvenile judge classifieds the JOR as a Tier III JOR, then he may impose certain notification requirements found in R.C. 2950.11.
Thus, JOR’s that are classified as Tier III registrants are subject to community notification only if the juvenile court orders it and to victim notification only if the victim requests it. Moreover, the JOR’s registration information is not disseminated on the Internet. On the other hand, for PRQJORs, the community and victim notification requirements are automatic. Additionally, the state is required to place PRQJORs on its public Internet database.
Reclassification is also significantly different, Justice Pfeiffer noted. Upon completion of his disposition, a JOR is entitled to a hearing by the juvenile court to determine whether the child should be reclassified. The juvenile may also petition the court for a reclassification hearing three years after the original classification hearing, a second petition three years later, and additional petitions every five years thereafter. PRQJORs, however, do not receive a reclassification hearing upon completion of their juvenile disposition. Instead, they are not eligible for a reclassification hearing until twenty-five (25) years after their duty to register began.
The majority of the court emphasized that the PRQJOR’s Tier III classification continues long after his juvenile disposition has been completed. The penalty of automatic registration is a consequence that the juvenile cannot remove or change even though he may benefit from rehabilitative opportunities.
The court then conducted a thorough and cogent analysis of the law regarding cruel and unusual punishment. The court noted that the “Constitution’s prohibition against cruel and unusual punishment is the ‘precept of justice that punishment for the crime should be graduated and proportionate to the offense.’”[2]
In reference to the nature of the offense, the court pointed out that the United States Supreme Court recently held that capital punishment is precluded for non-homicide crimes against individuals.[3] With respect to juveniles, the court eliminated the death penalty for defendants who committed their crimes before the age of eighteen.[4] In Graham v. Florida,[5] the court ruled that imposition of a life-without-parole sentence on a juvenile is prohibited by the Eighth Amendment.
The court employed a two-step process to determine whether a categorical rule should apply in regard to the automatic lifetime registration requirement: (1) whether there is a national consensus against the sentencing practice at issue, and (2) the court, in the exercise of its own independent judgment, determines whether the punishment in question violates the Constitution.
With respect to a national consensus against automatic lifetime registration, the court referenced the United States Attorney General’s promulgation of Supplemental Guidelines for Sex Offender Registration and Notification. These Guidelines became part of the Sex Offender Registration and Notification Act (“SORNA”). The Council of State Governments opposed application of SORNA to juveniles and urged Congress to revise the law.
In response to this reluctance by the states to implement SORNA, the U.S. Attorney General issued the Supplemental Guidelines. Those Guidelines allowed states not to publicly disclose information concerning persons required to register on the basis of juvenile delinquency adjudications. Based on these new Guidelines, the court found that a major policy shift reflective of a national consensus had taken place.
In conducting its own independent review of the automatic lifetime registration and notification requirements, the court began with the premise that “Ohio has developed a system for juveniles that assumes that children are not as culpable for their acts as adults.”[6] In commenting on the severity of punishment, the court cited a litany of problems the juvenile faces with lifetime registration and notification:
For a juvenile offender, the stigma of the label of sex offender attaches at the start of his adult life and cannot be shaken. With no other offense is the juvenile's wrongdoing announced to the world. Before a juvenile can even begin his adult life, before he has a chance to live on his own, the world will know of his offense. He will never have a chance to establish a good character in the community. He will be hampered in his education, in his relationships, and in his work life. His potential will be squelched before it has a chance to show itself. A juvenile—one who remains under the authority of the juvenile court and has thus been adjudged redeemable—who is subject to sex-offender notification will have his entire life evaluated through the prism of his juvenile adjudication. It will be a constant cloud . . . It will define his adult life before it has a chance to truly begin.[7]
The court, after addressing the rehabilitative goals and graduated sanctions and services of the juvenile system, and contrasting those against the severity of punishment of automatic lifetime registration and notification, concluded:
In sum, the limited culpability of juvenile nonhomicide offenders who remain within the jurisdiction of the juvenile court, the severity of lifetime registration and notification requirements of PRQJOR status, and the inadequacy of penological theory to justify the punishment all lead to the conclusion that the lifetime registration and notification requirements in R.C. 2152.86 are cruel and unusual. We thus hold that for a juvenile offender who remains under the jurisdiction of the juvenile court, the Eighth Amendment forbids the automatic imposition of lifetime sex-offender registration and notification requirements.[8]
The court, in addition to finding that the statute violates the federal constitution’s ban against cruel and unusual punishment, held that the automatic lifetime registration and notification requirements “are contrary to the rehabilitative goals of the juvenile system. We conclude that they ‘shock the sense of justice of the community’ and thus violate Ohio’s prohibition against cruel and unusual punishment.’”[9]
Finally, the court addressed whether the statute violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 16. The court found that the statute eliminates the significant role of the juvenile court’s discretion in the disposition of juvenile offenders and thus “fails to meet the due process requirement of fundamental fairness.”[10] Because of this failure, the court concluded that it violates both the federal and state constitutions’ due process clauses.
[1] In Re C.P. (2012),131 Ohio St. 3d 513.
[2] Id. at 520, citing Weems v. United States (1910), 217U.S. 349, 367.
[3] Kennedy v. Louisiana (2008), 554U.S. 407, 437.
[4] Roper v. Simmons (2005), 543U.S. 551.
[5] (2010), __U.S. __,130S. Ct. 2011
Can a police officer stop the driver of an automobile who is reportedly armed and contemplating suicide?
In a 6-1 decision (Pfieffer, J, dissenting), the Ohio Supreme Court answered yes, that a police officer may perform a warrantless stop of a motorist when objectively reasonable grounds lead the officer to believe that there is an immediate need for his or her assistance to protect life or prevent serious injury. The case, State v. Dunn (2012), 131 Ohio St. 3d 325, involved a police dispatch that described a suicidal male operating a tow truck and that he was planning to kill himself when he arrived at a certain address on Helke Road in Vandalia. The dispatcher gave the driver’s name (Richard Dunn) and indicated that he had a weapon. The dispatcher also provided a general description of the tow truck and the company’s name (Sandy’s). Shortly after receiving the radio broadcast, a Vandalia police officer spotted the tow truck about two miles from the address. The officer followed the driver until another back-up unit arrived, and together the two police officers executed a traffic stop. The driver emerged from the truck with his hands up. He was crying. The officers took Mr. Dunn into custody and placed him in the cruiser. While the office was walking him to the cruiser, Dunn told him, “it’s in the glove box.” The officer asked him if he was referring to a gun, and Dunn said yes. The officer then searched the glove box and found the gun.
Dunn was later indicted for one count of improperly handling a firearm in a motor vehicle. He filed a motion to suppress the gun, claiming that the stop violated his constitutional rights against illegal seizures. The trial court conducted a hearing on the motion and ruled that the stop was a legitimate response to an emergency situation and overruled the motion. Dunn appealed to the Montgomery County Court of Appeals. The appellate court reversed. The appellate judges held that the state failed to show that the dispatcher had a reasonable basis for sending out the dispatch that caused the officers to stop Dunn’s truck.
The Ohio Supreme Court reversed the court of appeals. The Court explained that the community caretaking or emergency aid exception to the Fourth Amendment warrant requirement allows police officers to stop a driver based on a dispatch that the driver is armed and intends to commit suicide. The Court rejected the appellate court’s analysis that the dispatcher’s information was not based on sufficient facts to support its reliability. The reliability of the information from a police dispatcher, the Court noted, is only relevant to an investigative Terry stop. The proper analysis, according to the Court, is whether the officer acted reasonably in believing that emergency aid was necessary to protect life or limb and therefore acted in accordance with that belief. The Court reviewed several prior United States Supreme Court and federal appellate court cases that applied the emergency aid exception. “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Dunn, at 329, citing Wayne v. United States (D.C. Cir. 1963), 318 F. 2d 205, 212. The Court also ruled that Dunn’s spontaneous statement that the gun’s in the glove box was not the result of custodial interrogation and therefore Miranda warnings did not apply.
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."