The answer is yes.  However, it is not a right and rests firmly within the discredtion of the Court to grant the motion after a hearing.

Crim.R. 32.1 provides that a motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice, the court, after sentence, may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.

“Crim.R. 32.1 does not prescribe a time limitation on filing a motion, but an undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and militating against the granting of the motion.” State v. McMahon, 2010-Ohio-2055, CA2009-06-008 (OHCA12).

“[A] presentence motion to withdraw a guilty plea should be freely and liberally granted. Nevertheless, it must be recognized that a defendant does not have an absolute right to withdraw a plea prior to sentencing. Therefore, the trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.” State v. Xie (1992), 62 Ohio.St.3d 521, 527.

“Some of the factors that are weighed in considering the trial court’s decision on a presentence motion to withdraw a plea are as follows: (1) whether the state will be prejudiced by withdrawal; (2) the representation afforded to the defendant by counsel; (3) the extent of the Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to withdraw; (5) whether the trial court gave full and fair consideration to the motion; (6) whether the timing of the motion was reasonable; (7) the reasons for the motion; (8) whether the defendant understood the nature of the charges and potential sentences; and (9) whether the accused was perhaps not guilty or had a complete defense to the charge.” State v. Griffin (2001), 141 Ohio.App.3d 551, 554.

The Court in Griffin granted the defendant’s motion where they found that: a) the prejudice to the state was not articulated and will not be presumed; b) a timely motion to withdraw was filed two weeks after defendant pled guilty and more than a month before the scheduled sentencing hearing; c) defendant’s motion stated that he is not guilty and sets forth the reasons for plea withdrawal; d) defendant alleged that his attorney failed to properly investigate the case in that he failed to interview the eyewitness; e) defendant claimed that he felt pressured to plead by his attorney, f) defendant claimed self-defense; g)          defendant told the court that he felt pressure from his attorney to plead guilty.

Time is always important in legal matters and could be critically short in your case acting as a complete bar to your objectives.  Contact us immediately if you have a question about your case.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - call me, ROBERT HEALEY, or one of my 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 TWO FORMER PROSECUTORS to work….for you!

One of the rights that you give up upon entering a plea is the right to remain silent.  You should be aware that what you say can still cause the Judge to increase your sentence.

Most Judge’s will ask a defendant if they want to say anything.  Other Judge’s will start asking you questions whether you want to answer them or not.

A defendant will rarely better their situation by speaking to the Judge before sentencing.  I recommend that a defendant tell the Judge that they have no comment about their actions.

The practical reality is that most Judge’s will accept that and not push the issue.  The risk of speaking will most often outweigh any benefit of trying to explain your actions to a Judge.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - call me, ROBERT HEALEY, or one of my 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 TWO FORMER PROSECUTORS to work….for you!

A  felony DUI is charged when the offense is a fourth or more in six years or a sixth offense in the last twenty.  This is a felony of the fourth degree.

Among all the other serious penalties that go along with a felony DUI, the most serious is that all future DUIs will be a felony even if the person maintains a prolonged period of sobriety.

“An offender who previously has been convicted of or pleaded guilty to a violation of division (A) of this section that was a felony, regardless of when the violation and the conviction or guilty plea occurred, is guilty of a felony of the third degree.” 4511.19(G)(1)(e)

This is all the more reason not to enter an unevaluated plea in your DUI case.  You need a lawyer that limits his practice to DUI defense that can complete a through examination of your case and avoid any conviction for DUI if possible.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - call me, ROBERT HEALEY, or one of my 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 TWO FORMER PROSECUTORS to work….for you!

Crim.R. 11 requires that a trial court advise a defendant of all of her rights in felony cases prior to accepting a guilty or no contest plea to ensure that the plea is entered into knowingly, intelligently and voluntarily.  However, most trial courts have adopted the felony standard even for serious and petty misdemeanors. 

The Court of Appeals of Ohio for the Seventh District issued an opinion in on March 15, 2010, that provides a nice overview of various rights waived upon entering a plea.  The rights are divided into constitutional and nonconstitutional as follows:

The constitutional rights waived are: 1) a jury trial; 2) confrontation of witnesses against her;  3) the compulsory process for obtaining witnesses in her favor;  4) that the state must prove the defendant’s guilt beyond a reasonable doubt on each element of the offense against her, and 5) that the defendant cannot be compelled to testify against herself.  Stave v. Heverly, 2010-Ohio-1005.

The nonconstitutional rights are that: 1) the defendant must be informed of the nature of the charges; 2) the defendant must be informed of the maximum penalty involved, which includes an advisement on post-release control, if it is applicable; 3) the defendant must be informed, if applicable, that she is not eligible for probation or the imposition of community control sanctions, and 4) the defendant must be informed that after entering a guilty plea or a no contest plea, the court may proceed to judgment and sentence.  Id.

Failure to strictly comply with the constitutional rights and substantially comply with the nonconstitutional rights will invalidate the plea.  This means that the invalid plea can subsequently be withdrawn and is often grounds for an appeal.

Also, all this might be avoided by hiring a competent DUI Lawyer to thoroughly evaluate your case.  There can be defenses to your case that you are not aware of.  The more defects we can discovery in your case the better chance of being found NOT guilty!

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - call me, Robert Healey, or one of my 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 TWO FORMER PROSECUTORS to work….for you!

The answer is no.  But first, I want to tell you a little about the assessment and its role in a DUI case.

 An assessment for drugs and alcohol will be completed by a physician, or person licensed to evaluate your risk for alcohol and drug addiction.  The assessment will also relate the potential risk to an appropriate level of treatment to minimize a relapse related to drug and alcohol abuse.

 Your lawyer may decide to refer you for a drug and alcohol assessment when you are charged with a DUI.  This is often done when the client has a prior DUI conviction, a high-tier test, or is under age.

 It is important that you get the assessment.  Your lawyer will give you advice on where to find providers that can give you an assessment in your area.

 It is important that you ask the person giving the assessment to copy it to your lawyer.  The assessment can be used in negotiations or mitigation if favorable, but there is no obligation to disclose it if it is not helpful.

 If the assessment recommends further treatment, your lawyer will ask that you comply.  That brings us to the topic of this blog.

 It does not matter where you receive the recommended treatment.  What matters is that you comply with the recommendation.

 A recommendation can range from no care needed, 1-2 times a week for several weeks of outpatient meetings with a licensed counselor, 2-3 times a week for several weeks of intensive outpatient care, 30-60 days of inpatient treatment and counseling, to the extreme of late state addiction where you need to check yourself into a detox program for up to a week in a hospital under the care of a physician to be weaned off the substances you are using with medication so that your body will not go into organ failure during withdraw.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - call me, Robert Healey, or one of my 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 TWO FORMER PROSECUTORS to work….for you!

A first offense DUI in Ohio has the following penalties:

ALS (Administative License Suspension) for test refusal = one year license suspension.  ALS for a prohibited BAC (Blood Alcohol Content) = 90 day license suspension.

Jail – Minimum of three consecutive days or 3-day driver intervention program.  Fine – Minimum $375 and not more than $1,075.

Court License Suspension – 6 months to 3 years, ignition interlock device may be ordered by the Court.  Up to 5 years on probation. 

If there was a high tier BAC result, an additional 3 days in jail and restricted license plates.  These are very serious penalties.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - give our office a call 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 TWO FORMER PROSECUTORS to work….for you!

The Court maintains jurisdiction over you with a period of probation.  This means they can impose any jail time or fines that were initially suspended for a violation of the terms and conditions of your sentence or probation.

You can hire an attorney to mitigate your sentence if you pay the fines and costs, go to the intervention program, and stay out of trouble for a period of time.  This has a good chance of success if done six months after sentencing on a first offense.

Probation is the way the Court makes sure you comply with the sentence.  If you have done everything it shows the Court that you do not need further looking after.

Granting a motion for mitigation is discretionary.  However, if granted, it means that you are no longer under the authority of the Court.

This should be a reward for good behavior for someone who can show the Court they will not get in trouble again.  It will also have the added bonus of removing you from any risk of suspended jail time or fines that that can be imposed if you get in trouble again.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - give our office a call at 513.333.0014….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 two former prosecutors to work….for you!

First off, your DUI is not a simple matter.  It is complex, but not complicated.

A DUI is a misdemeanor of the first degree.  It is also the most serious of all misdemeanors’ of the first degree.

It is even more serious than some felonies!  Especially, a felony that is eligible for diversion and ultimately expungement. 

Even on a first DUI, you are exposed to the following consequences: mandatory jail, mandatory fine, mandatory license suspension, time where you can’t get driving privileges, up to 5 years probation, random drug/urine screens, fee for and attendance of a 72-hour driver intervention program, additional costs for probation, drug and alcohol treatment, ignition interlock, special red license plates, it can cause you to lose your job, limit your employment options in the future, it is not eligible for expungement, 6 points on license toward a 12-point suspension in any 24 month period, and 3 years for insurance premiums.

It requires diligent examination of police reports, statements, Miranda rights, validity of the stop, detention, and arrest, 911 records, police videos, checks of the calibration of the testing equipment, substantial compliance with standardized field sobriety tests, etc. 

This evidence is rarely prepared fully and hand delivered to the defense attorney in court.  Most times it requires careful evaluation for missing information leaving the diligent lawyer to seek it on his own.

It also requires evaluation of the State’s compliance with the Ohio Revised Code, Ohio Administrative Code, Ohio Department of Health Code, Field Sobriety Testing Standards, etc.

DUI defense is not something any lawyer can just show up and do.  It takes time and dedication to become familiar with the process.  It is always in your best interest to find out how many other areas your lawyer practices in.

Ask your attorney how many Motions to Suppress he has done on DUI cases.  Ask him how many cases he has tried.

All Ohio Lawyers have to maintain 24 hours of continuing education every two years.  You can ask your prospective lawyer how many of those hours were spent reviewing the area of DUI defense.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - give our office a call at 513.333.0014….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 two former prosecutors to work….for you!

The law in Ohio provides for limited driving privileges when you are under a suspension for a DUI.  You are eligible for privileges after any hard suspension time.

Once eligible, you can get privileges for the following reasons:  Occupational, Educational, Medical, and Vocational.

Part 4 of this blog series is devoted to clients who ask about whether they can get privileges for vocational reasons.  Privileges are given at the discretion of the Judge and there is no right to them. 

Privileges for vocational reasons will be granted on a case by case basis.  First though, we need to analyze what they are since this is a grey area in most Judges’ minds.

Black’s Law dictionary defines “vocation” as a person’s calling, business, occupation, or profession.  This does not give much guidance since we already know we can get privileges for occupational reasons.

 Merriam Webster’s online dictionary defines “vocational” as training in a skill or trade to be pursued as a career.  They define “vocation” as a divine call to the religious life, the work in which a person is employed, or a particular occupation. 

 This still does not help us fully understand what vocational privileges are more than something between a job, training for a job, and a calling wherein the person devotes time to something that does not necessarily result in income.

 My common advice to people is that it can be used for things that you do other than your job that is a benefit to the community.  Say for instance, volunteering at your local hospital, coaching, job training, etc.

 As with all privileges, they are discretionary.  The more a Judge finds the idea a benefit to other people, the more likely that they will be granted.  Understand that the more you stray from the common privileges for your job, school, and medical necessity, the less likely they are to be granted.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - give our office a call at 513.333.0014….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 two former prosecutors to work….for you!