Right To Remain Silent At OVI Sentencing

One problem I come across from time to time arises at sentencing on a DUI or OVI.  Picture this, I have worked out a plea and have a good idea what the sentence will be based on the facts in the report.

 Sometimes I have seen this delicate house of cards come crashing down when the Judge wants to talk with my client after my mitigation, where I tell the Judge all the good things about my client, is complete.  

 The problem is that no matter how much I counsel my client; most times they say something they think sounds good.  The reality is that they just made the Judge mad and talked themselves into a worse sentence than if they just remained silent.

 Some Judges want to ask them why the DUI happened, what they drank, where their family was, what they were doing.  These are facts that are rarely in the police report.

 Sometimes this can work to our advantage by bettering a situation that has terrible facts to begin with, but it is a long shot.  That begs the question of how can it be handled.

 Some Judge’s think that the right to remain silent at trial, which is waived by entering a plea, also waives the right to remain silent at sentencing.  That is not the law.

 In 1999, the Supreme Count of the United State held that a guilty plea does not waive the self-incrimination privilege at sentencing in a case called Mitchell v. US, 526 U.S. 314 (1999), 119 S.Ct. 1307.  The Court based its rational on the Fifth Amendment where its terms prevent a person from being “compelled in any criminal case to be a witness against himself.” U.S. Const., Amdt. 5.

 This holding has also been adopted by Ohio Courts.  In State v. Blackmon, Cuyahoga App. No. 88512, 2007-Ohio-3068, this is a good example about how a person can worsen their situation by telling the Judge what they thought the Judge wanted to hear instead of staying silent.  

 Another Ohio case that adopted Mitchell is State V. Betts, Cuyahoga App. No. 88607, 2007-Ohio-5533.  This Court quoted the holding in Mitchell to show that, if invoked, a defendant’s silence may not be used against him in fashioning a sentence.   Specifically, the Court in Betts held the following:

…In this matter, however, defendant did not exercise his Fifth Amendment right to remain silent at the sentencing hearing. Instead, he voluntarily responded when the judge gave him the opportunity to speak prior to sentencing. Moreover, the record clearly reflects that the court’s determination that defendant did not accept responsibility was a reference to this pre-sentence statement. State V. Betts, Cuyahoga App. No. 88607, 2007-Ohio-5533.

These cases show that you will need an experienced lawyer that can advise you what rights you have.  More importantly, you will need a lawyer that can tell you how and when to use those rights, and when to waive them as it can directly influence the outcome of your case.

And remember, if you or a family member has been arrested for OVI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties – call me, ROBERT HEALEY, or one of my qualified associates at 513.333.0014.  We are available 24-hours a day, 7 days a week.  Because now is the perfect time to put a team that includes a FORMER POLICE OFFICER and a FORMER PROSECUTOR to work….for you!

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