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Expungement: A Gateway to Moving On?

What is expungement?

Expungements are a legal process that can clear arrests, charges and minor convictions from someone’s record. Never heard of it? You’re not alone. See, that’s the thing about expungement: many people don’t even know it exists, let alone if they’re eligible, and of those who do, many don’t know how to get it.

Though “expunge” and “seal” are often used interchangeably, but they mean very different things. Expungement is to erase such documents while “sealing” simply means they’re no longer public record.

Am I Eligible to have my record expunged?

The law on who is eligible for either varies state by state, and there is no encompassing federal law on expunging adult crimes. In Ohio, the maximum allowable expungements, according to Ohio law, is one felony and one misdemeanor, or two misdemeanors. However there have been some changes in recent years, so the best way to know if you are eligible for records expungement by contacting a legal professional to review your case.

(Contact Criminal Defense Attorney Terry Sherman)

The difference between record expungement and record sealing.

There are some things you should know about expungements and sealed records. In the age of the Internet, expungement only goes so far. If your record is approved for expungement, the court will agree to toss out its records…but what about Google? How about news archives? Mugshots.com? It’s nearly impossible to expunge information in this cyber age. But that doesn’t mean expungements aren’t still an important step. You can still pare down someone’s record which helps them gain access to employment or housing. It’s vital.

An expunged record can still hurt your chances of landing a job. Beyond doing a simple Internet search, employers often turn to private information providers to run background checks on job candidates. Sometimes companies have downloaded the databases of the courts periodically, and they have them stored on their own databases.

The REDEEM Act.

Congress is considering whether to make more people eligible for expungement. The highly publicized REDEEM Act introduced by Senators Cory Booker, Democrat of New Jersey, and Rand Paul, Republican of Kentucky, stands for “Record Expungement Designed to Enhance Employment.” Under the proposal, those convicted of nonviolent federal crimes could apply to have them sealed, and all nonviolent juvenile offenses would automatically be expunged or sealed, depending on age when the crime took place.

While a lawyer is not required, legal expertise can help navigate a complicated process.

6 Tips to Avoid an Underage Drinking Conviction

by Terry Sherman | All, Underage Drinking

Fall is almost here and school is back in session. Many college students pack their bags and move away from home, possibly for the first time. They get ready to go out and experience college nightlife, a preconceived notion of what that means likely already formed in their mind. Underage drinking is an extremely common problem, not just in college, but in high school as well.

I’m going to explain what steps you can take in the instance you have contact with the police related to an underage drinking or a public drunkenness investigation. Let’s be clear, I’m not encouraging you to drink underage. I am merely going to enlighten you as to your rights.

In Columbus, underage drinking charges are common. However, you can take steps to avoid an underage drinking conviction.

1. Immediately talk to an Attorney.

My first tidbit of advice applies to all charges. If you receive a summary offense citation, the very first thing you should do is speak to an attorney! The fact that you may be factually guilty doesn’t mean that an attorney can’t help you. It’s far easier to nip these types of things in the bud than to try to get them off your record later.

2. “I would rather not answer”.

You have he right to remain silent. This next tip should be fairly obvious, but most people charged with underage drinking fall into this trap. If a cop asks you whether you have been drinking, don’t say yes! You have a right to remain silent and not incriminate yourself. It becomes much more difficult to win a case at trial where there is a confession to one of the major elements of the offense.

However, I suggest that you not lie to the police if you were, in fact, drinking. You can either say, “I would rather not answer” or “I would like to invoke my Fifth Amendment right to remain silent.” At that point, the police officer is supposed to cease any further questioning.

3. “Just say no”….to a breathalyzer.

My next tip…don’t agree to submit to a breathalyzer test. Lots of people have a misconception that they have to submit to a breathalyzer test any time a police officer asks them to do so. That’s simply not true. What is true is that a motorist suspected of driving under the influence must submit to a chemical blood test or a certified breath test, or he’ll lose his driver’s license for a year for the refusal. You’re NEVER required to submit to a breath test while under investigation for underage drinking or public drunkenness.

If you do submit to a breathalyzer and test positive for alcohol, especially if your BAC is high, the officer will then try to manipulate you into a confession. The cop is just doing his or her job by using a tried and true police tactic. That being said, you aren’t obligated to make the cop’s job any easier.

4. Leave your ID at home.

Next, you need to be aware that you don’t have to show the cop your ID when you’re stopped, for the simple reason that in the United States, citizens are not required to carry identification with them….unless you’re driving.

In that case, you must present your driver’s license. But, if you’re just walking back to the dorms or standing around an OSU tailgate, you are not required to carry an ID with you just in case a cop happens to ask to see it.

This is really important for the simple reason that the crime of underage drinking in Ohio is defined as possession, consumption or the attempt to purchase alcohol while being less than 21 years of age. Meaning that the arresting officer, at trial, has to prove beyond a reasonable doubt that you were, in fact, less than 21 years of age.

The mere fact that you really are 18, 19 or 20 years old is not enough for a conviction. The officer has to prove it. Typically at trial, the officer will testify that he or she observed your ID and noted your date of birth.

5. Don’t lie to the police.

While we’re on the subject of IDs, I should make it perfectly clear that you should NEVER lie about your identity or date of birth to the police. If you’re under an official police investigation for a crime like underage drinking, and you give the officer a fake name or date of birth, you could be charged with false identification.

6. Be polite.

Now for my final tip, which may be the most useful of all. You should never be rude or combative with the police. Expressing your frustration by being obnoxious to the police never does anyone any good. Being polite and cooperative will go a long way. Remain polite while explaining that you left your ID at home, declining a breath test or refusing to answer whether you have been drinking or not.

If you’ve been charged with underage drinking, public drunkenness, disorderly conduct or related offense, call Terry Sherman at (614) 444-8800 for a free consultation.

9 Tips to Help You Win Your DUI Case

by Terry Sherman | All, DUI

Don’t ever assume that your DUI case is unbeatable.
These are very complex matters, and there is a wide range of defense strategies that have proven extremely effective in these types of cases.

While there are many effective defense strategies, here are 9 ways to win a Columbus DUI case.

1. The Traffic Stop Was Illegal And Wasn’t Supported By Probable Cause

A police officer needs to have a reasonable suspicion to pull a driver over. If the police officer can’t explain why he or she reasonably suspected the driver had broken the law, then the traffic stop may be declared unconstitutional and the DUI charge may be dismissed.

2. The Arrest Was Illegal And Not Supported By Probable Cause

An officer needs to have probable cause to arrest someone. If the officer didn’t have sufficient evidence to merit probable cause, the arrest may be declared unconstitutional. The drunk driving charge could be dismissed.

3. The Field Sobriety Tests Were Administered Improperly

Field sobriety tests are always voluntary. If a police officer forced the driver to take a sobriety test, the accused individual’s Fourth Amendment rights might have been violated which means the test results could be thrown out.

Furthermore, it’s important these tests are administered properly. For example, if the tests are conducted on uneven ground, they could be considered invalid.

4. The Breath Test Was Administered Improperly Or With Faulty Equipment

There’s a right way and a wrong way to use a breath test machine. If an officer uses the machine incorrectly, the results could be thrown out. Additionally, mechanical issues may impact the accuracy of the results.

Some machines are affected by temperature. For example, if the machine is stored in the trunk on a cold day and not allowed to warm up prior to being used, the results might not be accurate and should be considered invalid.

5. A Medical Issue Or Some Other Factor Interfered With The Breath Test

Several everyday issues can lead to false positives on a breath test. Let’s say a person burps after recently consuming alcohol and then takes a breath test, the results might show a higher blood alcohol content (BAC) than normal. Or, if a person is running a fever when they take the test, the results may also be skewed.

Your lawyer will review the case to determine if any interfering factor was present and seek to have results thrown out.

6. The Blood Test Was Administered Improperly Or The Equipment Was Faulty

While blood tests are typically conducted in a more controlled environment than breathalyzers, there is still the possibility of errors. For example; Was an alcohol swab used on the draw site? Was the sample handled correctly during the testing process? Any issue that might interfere with the accuracy of the results could lead to the results being considered invalid.

7. A Medical Issue Interfered With The Blood Test

There is an enzymatic method is typically used for determining alcohol content in blood tests. However, this method may lead to inaccurately high readings that confuse serum alcohol, which might be produced by tissue trauma, like bruises, with ethyl alcohol. If there’s reason to believe that such a factor interfered with the blood test, the results should be thrown out.

8. The Accused Was Not Operating The Vehicle

Occasionally, a person will be charged with DUI even though he or she was merely caught sitting or sleeping in the vehicle. If the police officer did not personally witness the individual driving while intoxicated, the case can be dismissed.

In cases like these, the court must determine whether the evidence establishes beyond a reasonable doubt that the defendant was either in actual control of the vehicle (keys in ignition or engine running) or driving.

9. Jurisdictional Issues And Speedy Trial Issues

The location of the DUI dictates which courts will hear the case and which police officers can conduct the arrest. In some cases, if an officer makes an arrest outside of his or her jurisdiction, it can be used as part of a defense strategy. The prosecution has a limited amount of time to try your case. If the Commonwealth fails to prosecute during the allotted time frame, the case can be dismissed.

If you’ve been accused of DUI, take action to ensure that it doesn’t impact your life. Columbus DUI defense attorney Terry Sherman will help you secure the results that you need to be able to move forward with your life. Schedule your free consultation

Should Kids Be Allowed To Waive Their Miranda Rights?

by Terry Sherman | All, Juvenile

Chances are that you’ve heard some version of the Miranda Rights before. You don’t have to be involved in a crime to have heard it, thanks to crime TV shows.

The Miranda Rights start with the famous “You have the right to remain silent…” It’s likely that you can recite the rest, but surprisingly, a lot of people don’t understand what the Miranda rights actually protect.

Protection Offered by the Miranda Rights

By law, a law enforcement officer is supposed to read the Miranda rights to the suspect at the time of his/her arrest. The major benefits include:

That you’re not required to speak to the police
That you are permitted to have an attorney advocate on your behalf at all times throughout police questioning

A defendant may choose to uphold these rights or waive them. In the event that the defendant chooses to waive his or her Miranda rights, and chooses to speak directly to officers in the absence of an attorney, then under the law, such correspondence is not coerced or involuntary.

Miranda Rights and Juveniles

Law enforcement officers also read Miranda rights to juveniles if they’re suspects. The issue is that juveniles often don’t fully understand the rights read to them, or even worse, the implication of waiving their Miranda rights. Because of this, the rate of waivers among juveniles is alarmingly as high as 90 percent.

This makes us question…Why?

One reason is of course understanding or lack thereof. In 2014, the Harvard Medical School and others identified 371 variations of the wording of Miranda rights. Of this number, an impressive 52 percent required at least an eighth-grade reading level for proper understanding. Comprehension becomes even more difficult once you factor in the added stress that plagues juveniles under arrest.

Another reason is the limited memory of all the rights that are included in Miranda. Taking advantage of one’s Miranda Rights goes far beyond understanding the verbiage. It’s equally, if not more important to remember all the rights later, after the arrest and during the interrogation.

Waiving of Miranda Rights by Juveniles

On the heels of these shocking stats are several cases relating to the waiving of Miranda rights by juveniles. On one hand are cases that dispute whether a juvenile actually waived his or her Miranda rights at all. On the other hand are cases that dispute whether the rights were stated in a way to make the juvenile understand what rights were protected.

A number of states are currently considering adopting a revised Miranda standard. This would address many of the concerns regarding Miranda rights and juveniles. Proposed processes that would address some of these concerns include:

Implementing a version of Miranda specifically for juveniles that are easier to understand.

Stipulating a minimum age requirement, meaning that juveniles below the age limit would be legally unable to waive their Miranda rights, make a confession or even speak to a police officer in the absence of a parent or guardian.

The foremost importance of Miranda rights is to protect against self-incrimination during questioning. Therefore, it’s critical to consult an experienced defense attorney like Terry Sherman if you or a loved one is of the belief that Miranda warnings were not properly provided or were improperly or unfairly waived. Call us now.

Ohio human trafficking probes up 50% over last year.

by Terry Sherman | All, Sex Crimes

COLUMBUS — The number of investigations into suspected trafficking swelled last year to the highest level in Ohio’s history

Ohio’s state attorney general’s Human Trafficking Commission released a report on Monday that revealing police investigated 202 potential cases of human trafficking in 2017, up nearly 50 percent from the year before. The vast majority involved the sex trade.

But the number of arrests decreased to 70, the lowest since 2013 as reported a Toledo news agency The Blade.

“You may have investigations in one year, and then you may have a conviction in another year,” said Attorney General Mike DeWine. “I still believe that human trafficking convictions are being grossly underreported because, frankly, they’re not charging human trafficking. They’re charging something else.”

He said ultimately it doesn’t matter whether the suspect is prosecuted for the specific crime of “trafficking in persons.”

“The most important thing is the victim be saved and not have to exist under those circumstances,” Mr. DeWine said. “The second thing is the person is punished and segregated from society so that they won’t do this again.”

The Victims:

208 people were identified as potential victims. They were most likely to be female, white, and between the ages of 21 and 29. Thirty-eight people were minors under the age of 18. Two were 13 or younger.

The Suspected Traffickers:

221 suspected traffickers, all but 10 of them believed to be engaged in the sex trade. Ten were involved in forced labor. The traffickers were most likely to be male, black, and between the ages of 21 and 29. Four were minors themselves.

The Customers:

257 people identified as customers of the trafficking were overwhelmingly male, white, and between the ages of 41 and 59. Most of them, 183, were suspected of buying sex while 74 were consumers of forced labor.

Mr. DeWine said Ohio’s opioid addiction crisis and human trafficking go hand in hand. “Drugs are used to control,” he said. “Because opioids are so addictive, it makes it easier for a pimp, makes it easier for a human-trafficker to control a victim. They control a victim’s income, money, but they also control the drugs. The drugs are the most powerful.”

Ohio has been at the forefront of research and law enforcement since a federal sting in 2005 in Harrisburg, Pa., put Toledo on the map with cities like Miami and Las Vegas as major recruiting hubs for the sex trade. Statistically, 177 women and girls were caught up in that sting, 77 of the females were from the Toledo area.

Federal Judge calls opioid crisis ‘man-made’ and urges action

by Terry Sherman | All, Drug Charges

COLUMBUS (AP) – Tuesday, Federal Judge Dan Polster urged participants on all sides of the lawsuits against drugmakers and distributors to work toward a common goal of reducing overdose deaths. He stated that the lawsuits have come to his court “because other branches of the government have punted it”.

The judge currently oversees more than 180 lawsuits against drugmakers brought by local communities across the country; including those from Ohio. The Judge said that he believes everyone from drugmakers to doctors to individuals bears some responsibility for the crisis and hasn’t done enough to stop it.

*Published IrontonTribune.com – Published January 10, 2018

During a hearing in his Cleveland courtroom, Polster stated, “What we have got to do is dramatically reduce the number of pills that are out there and make sure that the pills that are out there are being used properly. Because we all know that a whole lot of them have gone walking, with devastating results.”

In 2016, the government registered 63,600 overdose drug deaths – another record. The vast majority of deaths involved prescription opioids, namely OxyContin, Vicodin, or related illicit drugs such as fentanyl and heroin. The epidemic shows little sign of abating. Hundreds of lawsuits filed by county and municipal governments could end up as part of a consolidated federal case overseen by Judge Polster, while others are unlikely to consolidate.

Some government bodies, including Ohio and at least 9 other states, are suing the industry in state courts. Additionally, most states have united in an investigation of the industry that could spark a settlement or even more litigation against the industry. Among the drugmakers targeted; Allergan, Purdue Pharma, and Johnson & Johnson. Also targeted are three large distributors; Amerisource Bergen, Ohio-based Cardinal Health, and McKesson. All parties named in these and other lawsuits have said that they don’t believe that litigation is the answer but have pledged to help solve the crisis.

Judge Polster likened this epidemic to the 1918 flu which killed hundreds of thousands of Americans, while pointing out the key difference. “This is 100 percent man-made. I’m pretty ashamed that this has occured while I’ve been around.”

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