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!

This week’s blog post revolves around the concept of knowledge vs. what can be done in Court.  Everyone wants to know if their lawyer knows the law.

That is typically a low threshold of proof to a client that is not a lawyer.  However, it is also important that your lawyer be able to tell you what can or will be done with your case despite the law.

Part of your lawyer’s job should be to keep you informed with your case as it progresses.  Another and more valuable skill is to be able to accurately predict what can and will happen the next time you go to court. 

Ethically, a lawyer cannot guarantee an outcome in a criminal case.  However, your lawyer should be familiar enough with the law, court, prosecutor, police, etc., to give you enough information to satisfy your fears of the unknown. 

“The only thing we have to fear is fear itself.” -Franklin Delano Roosevelt, 32 president of the United States.  A great lawyer will make you feel this way before, during, and after the representation.

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!

Fear of a DUI should be enough motivation to refrain from drinking and driving.  However, for those that need additional motivation to refrain from drinking to excess, please note the following excerpt from an article written by Sally Squires in 2005 and published in the Washington Post.

Squires claims that alcohol packs seven calories per gram, falling just short of the nine calories found in a gram of fat and nearly twice that in a gram of protein or carbohydrate. The addition of fat-filled or sugary mixers can cause the calories to peak at over 500 per drink.

Here are some sample calorie counts from drinks listed in her article: Beer 150, Light beer 110, Dark beer 168, Distilled spirits (Scotch, vodka, bourbon, gin etc.) 100, Red wine*** 105, White wine*** 100, Amaretto sour** (Sweet and sour mix, almond amaretto liqueur, tequila, orange juice)  421, B-52** (Kahlua coffee liqueur, amaretto almond liqueur, Bailey’s Irish Cream) 191, Bloody Mary** (Vodka, tomato juice, lemon juice, Worcestershire sauce, Tabasco sauce, lime)  120, Chocolate martini** (Vodka, Creme de Cacao)  188, Cosmopolitan** (Vodka, Triple Sec, Rose’s lime juice, cranberry juice)  131, Daiquiri** (Light rum, limes, powdered sugar) 137, Gin and tonic** (Gin, tonic water, lime)  189, Hurricane** (Dark rum, light rum, orange juice, pineapple juice, Grenadine, 151 proof rum, cherries, pineapple and sugar 384, Irish coffee** (Irish whiskey, coffee, sugar, whipped cream) 159, Mai Tai** (Dark rum, light rum, sweet and sour mix, grandaine, 151 proof rum, ice)  306, Manhattan** (Whiskey, Vermouth, Bitters) 132, Margarita** (Coarse salt, lime, white Tequila, Triple Sec, lime juice, crushed ice)  327, Martini** (Gin, dry Vermouth)  119, Mudslide** (Vodka, coffee liqueur, Irish cream, vanilla ice cream)  820, Pina colada** (Malibu run, pineapple juice, cream 312, Rum and coke****) 361.

**SOURCE: 2005 U.S. Dietary Guidelines Advisory Committee, * Caloric content will vary by recipe, **Drinkmixer Web Site, drinksmixer.com, ***Calorie King, calorieking.com, ****Recipe provided by webtender.com as “typical rum and Coke recipe.” Serving size is based on the recipe and calorie information was calculated with Coca-Cola calorie information and rum.

Now, for the calorie conscious it would seem that distilled spirits in shot form or mixed with low calorie mixers (like diet soda), or a glass of wine are the top choices.  In the alternative, Distilled spirits with high calorie mixers like the Mudslide can tip the scales at over 800 calories.

Assume the following simple model.  A non-drinker is burning all the calories she consumes.  Her weight should stay constant.  If that same non-drinker starts to drink alcohol and fails to increase the calories she burns the result is excess calories. 

Excess calories can cause weight gain.  It is common knowledge that it takes an additional 3500 unburned calories to gain a pound of fat. 

Assume that if a person consumes 4 drinks a day and each drink is between 100-800 calories.  That can range from 400-3200 additional calories per day or 2800-22400 per week. 

This means that a person that drinks four 100 calorie drinks every day would gain 1 pound every 1.25 weeks.  At the other end of the spectrum, the person that can drink four mudslides per day can gain about 6.4 pounds every week.

Although each person is different, these are linear equations.  So in theory, that means a person consuming 8 drinks per day will experience double the calorie intake and double the weight gain in our theoretical model.  That is an excess fat gain of 2 pounds per 1.25 weeks up to 12.8 pounds per week!

If the words think before you drink did not mean anything to your before, this article will give you some more food for thought.

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 law in Ohio prohibits driving under the influence of alcohol, drugs of abuse, and a combination of the two.  Drugs of abuse DUI charges are less common than alcohol and are more likely to happen to someone who did not know they were violating the law.

 Ohio Revised Code (ORC) 3719.011 defines controlled substances as used in the ORC.  These definitions are as follows:

 “Drug of abuse” means any controlled substance as defined in section 3719.01 of the Revised Code, any harmful intoxicant as defined in section 2925.01 of the Revised Code, and any dangerous drug as defined in section 4729.01 of the Revised Code.

You can see the potential for confusion when the definition itself refers to three other code sections and lists three new terms: controlled substance, harmful intoxicant, and dangerous drug.  We will look at each in turn.

 CONTROLLED SUBSTANCES

ORC 3719.01 defines controlled substance in section C as a drug, compound, mixture, preparation, or substance included in schedule I, II, III, IV, or V.  Section BB tells us that schedule I-V are established in ORC  section 3719.41, as amended pursuant to section 3719.43 or 3719.44 of the Revised Code.

Section 3719.41 if fully reprinted here would need 34 pages.  In summary it includes the following: SCHEDULE I examples include but are not limited to: Heroin, LSD, Marihuana, Mescaline, Peyote, Hashish, and Salvia divinorum. 

SCHEDULE II examples include but are not limited to: Opium, Codeine, Hydrocodone, Morphine, Oxycodone, Fentanyl, Methadone, Amphetamine, Methamphetamine, and PCP.  SCHEDULE III examples include but are not limited to: Ketamine, Lysergic acid, Anabolic steroids, and Testosterone.

SCHEDULE IV examples include but are not limited to: Alprazolam, Barbital, Clonazepam, Diazepam, Lorazepam, Nitrazepam, Nordiazepam, Phenobarbital, and Phentermine.  SCHEDULE V examples include but are not limited to: Ephedrine, except as provided in division (K) of section 3719.44 of the Revised Code, and various other drugs in compound form.

 HARMFUL INTOXICANTS

Next we can look at ORC 2925.01 where it defines harmful intoxicants. Harmful intoxicant does not include beer or intoxicating liquor but means any of the following:

Any compound, mixture, preparation, or substance the gas, fumes, or vapor of which when inhaled can induce intoxication, excitement, giddiness, irrational behavior, depression, stupefaction, paralysis, unconsciousness, asphyxiation, or other harmful physiological effects, and includes, but is not limited to, any of the following:

Any volatile organic solvent, plastic cement, model cement, fingernail polish remover, lacquer thinner, cleaning fluid, gasoline, or other preparation containing a volatile organic solvent; any aerosol propellant; any fluorocarbon refrigerant; any anesthetic gas, Gamma Butyrolactone; 1,4 Butanediol.

 DANGEROUS DRUGS

Finally, the last drug of abuse category is dangerous drugs as defined in section 4729.01 of the ORC.  This says that a dangerous drug is any of the following:

Drugs listed in the Federal Food, Drug, and Cosmetic Act that is required to bear a label containing the legend “Caution: Federal law prohibits dispensing without prescription” or “Caution: Federal law restricts this drug to use by or on the order of a licensed veterinarian” or any similar restrictive statement, or the drug may be dispensed only upon a prescription;

Drugs may be dispensed only upon a prescription, any drug that contains a schedule V controlled substance and that is exempt from Chapter 3719 of the Revised Code, or to which that chapter does not apply; any drug intended for administration by injection into the human body other than through a natural orifice of the human body.

The term drug of abuse can include a broad spectrum of substances.  Not all of them are readily identifiable as something that can subject you to a DUI. 

Everyone knows if you do 20 lines of coke and drive that you can get a DUI.  Less well know is that prescription medication, even if taken as directed, can expose you to a DUI. 

And lastly, and most surprisingly, is that exposure to fumes or vapor from cleaning fluids, even if it happens in the course and scope of your employment, can cause you to become impaired and have exposure to a DUI.

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 Ohio Jury Instructions give us the definition that a jury would hear in a DUI case.  It also defines what a DUI is.  The following is an excerpt from the Ohio Jury Instructions:

The defendant is charged with operating a (vehicle) (streetcar) (trackless trolley) while under (the influence of alcohol) (the influence of a drug of abuse) (the combined influence of alcohol and a drug of abuse). Before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about the ___________________ day of ___________________, ___________________, and in ___________________ County (other jurisdiction), Ohio, the defendant operated a (vehicle) (streetcar) (trackless trolley) while under (the influence of alcohol) (the influence of [specify drug of abuse]) (the combined influence of alcohol and [specify drug of abuse]).

The term “operate” means to cause or have caused movement of a (vehicle) (streetcar) (trackless trolley).

The classification of a particular substance as a drug of abuse is a question of law. The identity of a particular substance, whether or not the defendant had ingested that substance and its affect, if any, upon him are questions of fact. For the definition of “drug of abuse” see R.C. 2925.01(B), 3719.01, 3719.011(A), 3719.41 and 4729.01(E).

“Under the influence” means that the defendant consumed some (alcohol) (drug of abuse) (combination of alcohol and a drug of abuse), whether mild or potent, in such a quantity, whether small or great, that it adversely affected and noticeably impaired the defendant’s actions, reaction, or mental processes under the circumstances then existing and deprived the defendant of that clearness of intellect and control of himself/herself which he/she would otherwise have possessed. The question is not how much (alcohol) (drug of abuse) (alcohol and a drug of abuse) would affect an ordinary person.

The question is what effect did any (alcohol) (drug of abuse) (alcohol and a drug of abuse), consumed by the defendant, have on him/her at the time and place involved. If the consumption of (alcohol) (drug of abuse) (alcohol and a drug of abuse) so affected the nervous system, brain, or muscles of the defendant so as to impair, to a noticeable degree, his/her ability to operate the vehicle, then the defendant was under the influence.

The Ohio jury Instruction cites language from State v. Hardy (1971), 28 Ohio St.2d 89, 57 O.O.2d 284, 276 N.E.2d 247; and State v. Steele (1952), 95 Ohio App. 107, 52 O.O. 488, 117 N.E.2d 617.

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!

There are several good reasons to appear at the arraignment, or first appearance.  You can make objections to the ticket and suspension, address the release of an impounded car, and obtain any evidence that might be in the file.

 Your attorney should be able to tell you when it is necessary to appear.  There are also reasons not to appear. 

 If your attorney reviewed the ticket and administrative suspension prior to court he can tell you if there are any defects in the documents.  Police do not impound all vehicles especially on a first offense.

 You may not want to appear if you will lose your job.  Your lawyer can evaluate the facts and documents particular to your case in advance of your first court appearance.

 There is a good chance that no compelling reason to appear exists.  In that case, your attorney can file a written plea of not guilty and reset the next hearing on a date as convenient as possible for you.

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!