I’ve just been charged with a crime, can I still keep my firearm?
One of the most common questions that we receive as defense attorneys often concerns the lawful use of firearms. What most people do not know is that in Ohio, there are a number of crimes, even misdemeanors, that can theoretically ban someone from ever owning a firearm for the rest of their life.
In Ohio, if you have plead guilty to or have otherwise been convicted of a crime that carries a potential punishment of incarceration of over one year it can lead to a potential lifetime ban of lawful firearm possession.
Misdemeanors in Ohio are only punishable by up to six months, but a Domestic Violence conviction can impose the lifetime ban just like most felonies. More often than not, individuals who have simply been charged with Domestic Violence must give up any and all firearms pursuant to the temporary protection order that is automatically issued, and/or as a condition of one’s bond.
What happens if one has already plead or been convicted of such a crime? Is there any hope to regain those second amendment rights? As it turns out there are several mechanisms provided within the law that can restore an individual’s right to lawful gun ownership. Expungement and sealing of the recording, setting aside a criminal conviction, and even applying to a court for relief from a firearm disability are all avenues that and can and should be explored when dealing with such an issue.
What is the correct way to transport a firearm in Ohio?
In our practice we have seen countless otherwise completely law abiding citizens be charged with serious crimes from improperly transporting their firearms. Simply having a concealed carry license does not give an individual absolute freedom to transport a firearm as they see fit.
If a person does not have a concealed carry license, (In Ohio it’s referred to as a Concealed Handgun License, or CHL), they may not transport a loaded firearm in a vehicle when the firearm is accessible to that person without having to leave the vehicle. A person may however transport an unloaded firearm anywhere in the vehicle if the person may lawfully posses it to begin with, and the gun is in a closed package, box, bag, or case, or it is in a compartment that can only be reached by leaving the vehicle. We recommend that when a firearm needs to be transported, that the firearm be unloaded, in a closed box or case, and in the vehicle’s trunk.
If an individual does have the CHL, they may transport a loaded firearm on or about their person in a motor vehicle but additional duties apply. The individual must PROMPTLY inform any law enforcement officer who approaches the vehicle for any reason that they are in possession of a loaded firearm. An individual can be charged for failure to promptly notify. Secondly, that individual must follow each and every order from the officer, remain in the vehicle at all times unless directed otherwise, and must absolutely keep their hands in plan site. Failure to comply with any of duties can net an individual a criminal charge despite that person having a CHL.
It is Ohio law that no person shall have a loaded firearm in the vehicle if that person is intoxicated with either alcohol, drugs, or a combination of both. The standard is not impairment like in a DUI. Even one drink can be enough to be in violation of this Ohio provision. A positive urine or blood test for marijuana, cocaine, or any other controlled substance can run an individual afoul of Ohio’s gun laws.
What if I was unaware that a gun was in the vehicle?
Let’s say that you had to borrow a friend’s car to take a quick trip down the street. A officer pulls you over for a traffic violation, and in the process a loaded firearm that was not yours was discovered under the driver’s seat.
Although the statute the governs improper handling of firearms states that there is a “knowingly” element to the offense, in our experience the likely thing to happen would be for the officer to issue the criminal charges and let the courts sort out the situation. That is why it is imperative that you consult with an attorney experienced in these situations before setting foot in a court house.
What if I possess the firearm in a vehicle on my own private property?
There is an affirmative defense, meaning a set of facts that an individual charged with a crime must prove at trial, that the person had the firearm in a motor vehicle for a lawful purpose while the vehicle was on the own person’s property. This defense is only available if the person did not illegally transport the firearm immediately before arriving on their own property. If the person is under the influence of drugs, alcohol, or a combination of both, they can still be charged with a crime despite being on their own private property.
I am an avid hunter, are the rules different for transporting a rifle or shotgun?
Generally speaking we always recommend that any firearm be kept in a area separate from the passenger compartment of the vehicle, such as the trunk. However with rifles and shotguns an individual may transport a long gun if it is plain sight with the action open or stripped.
What happens if I am pulled over for DUI and I have my gun on me?
Cases that involve both a felony gun charge and an OVI are not unusual, but they can be very difficult cases to handle. Even if you are tested and the result is under the legal limit, just the fact that the chemical test was positive for alcohol or drugs of abuse can be enough for a felony indictment.
The Ohio Rules of Criminal Procedure state that any misdemeanor charges arising out of the underlying felony must be bound over, or carry over, to the court where the felony will be litigated. Handling an OVI in felony court can be a difficult task. For staters most felony court personnel such as the judges and prosecutors are not as familiar with all the nuances of OVI law. Specialized legal procedures unique to OVI cases such a administrative license suspension appeals or motions for prior convictions not to enhance the current case will be unfamiliar at best to the judge. Even common procedures such as requesting driving privileges are often met with opposition from both the prosecutors and judges.
It’s not because the court personnel in felony court is universally nastier or tougher, it’s because there is much more of an unfamiliarity with the body of OVI law, and an unfamiliarity of how common and uncommon the range of BAC results can be. For example any chemical test that results in a BAC of over .17 carries a “high tier” designation with stiffer penalties. A high tier OVI test may seem incredulous to a judge who almost never or rarely sees OVIs whereas some municipal court judges might have hundreds of high tier OVI cases on their docket at a given time.
Furthermore, in most municipal courts, driving privileges are almost always given out with no opposition whereas in felony court, most prosecutors will oppose motions for driving privileges because they view them as unnecessary and clients as undeserving of them. Because there is no standardized procedure in place for diving privileges in felony court like there is in municipal court, some judges can take weeks or even months to rule on a motion for driving privileges.
Another challenge with these cases is resolution. Many fifth degree and fourth degree felony cases are eligible for a diversion program in which the client will undertake a series of tasks such as classes and community service and upon completion of the program with no issues the client is eligible to have the whole matter sealed, and they walk out of the court without a felony conviction on their record. It sounds great and it usually is, however OVI cases are ineligible for diversion programs in the State of Ohio.
This is where having a deep knowledge and familiarity of the criminal rules, applicable law, and underlying municipality is of the utmost importance. Sometimes in these cases it is possible to split the the case up and have the OVI recharged in the local municipal court and have the felony stay in place. With some maneuvering, it can be possible to resolve the OVI in a more streamlined and effective manner in the lower court while preserving more remedies in the felony court such as diversion.
Regardless of the facts of the case its is crucial to have a deep understanding of all the ins and outs of what makes a OVI tick. An experienced OVI practitioner can have an advantage when it comes to motion hearings in felony court on OVI cases especially with complicated issues such as blood and urine tests.
Getting served a felony indictment on what most people would think of as just a simple OVI is a tough pill to swallow, but with the right representation and diligence these cases can be handled in an effective and efficient manner.
One of the most common questions that I get asked as a DUI defense attorney is “Can anyone really pass those field sobriety tests?”. The simple answer is that the standardized field sobriety tests that an officer or trooper would typically give someone suspected of an OVI have been designed to detect impairment, and based upon my experience as a practitioner in this field, they can often be damning pieces of evidence used by the prosecution. One can’t simply beat the field sobriety tests much in the same way that one simply can’t beat a breathalyzer if that person has been consuming alcohol. Simply put, if someone is impaired, these tests can expose just how intoxicated one might be. However the flip side is true as well, and if a suspect appears to be sober, sometimes these tests can show the judge or jury that maybe there isn’t conclusive evidence that the suspect was in fact impaired.
Let’s start with the basics. Generally speaking there are only three “standard” or “standardized” field sobriety tests currently in use by Ohio law enforcement today. They are the horizontal gaze nystagmus test, the nine step walk and turn test, and the one legged stand test. They are “standard” in the sense that there is an actual standard that the tests must be conducted in. In Ohio, an officer while performing these tests must conduct these test in substantial compliance with their training.
More often than not the first test that is administered is the horizontal gaze nystagmus (HGN) test. This test is actually a physiological exam where the law enforcement officer is going to use a stimulus, typically a pen or his/her finger, and sweep that stimulus over an individual’s field of vision while the officer/trooper is looking for involuntary jerking of the suspect’s eyes. That involuntary jerking is called nystagmus. Independent studies have shown that this test can in fact accurately detect impairment in someone that has been consuming alcohol. However, this HGN test is only accurate when the officer conducts this test correctly, and secondly, when other causes of nystagmus can be ruled out. (These other causes can be head trauma, certain medications, and eye issues, to name a few.) Thus it is imperative when reviewing video evidence of this test the attorney must carefully watch every step of the process to ensure that it was administered properly.
The nine step walk and turn and the one legged stand are the next two tests. These tests are typically administered one after the other, as they are very similar. The nine step walk and turn test has a subject stand in a predetermined position in a particular way, walk down an imaginary line touching heel to toe the entire way down that line, turning around in a specific manner, and coming back down the same imaginary line in the same way. The suspect must also count each step out loud, and keep his/her hands planted on their sides as they are performing the test. Most lay people believe that this test is simply a test of one’s balance or coordination, but in reality, this test is referred to as a “divided attention” test and the subject’s ability to follow the very specific and detailed instructions can make a break an individual’s performance on the test.
I have many clients that come into my office and tell me that they feel that they passed the field sobriety tests because they “walked a straight line and didn’t stumble”. However the fact of the matter is that simply not following the officer’s instructions precisely can cause a “fail”. For example I can have an individual who might walk down the line very naturally, but fail to count each step out loud and fail to touch heal to toe on every step. Those two seemingly innocuous mistakes would be enough for an officer to determine that the individual has “failed” that particular field sobriety test.
The one-legged stand test is similar to the nine step walk and turn in that there are very specific and detailed instructions that must be followed when performing the test. It’s not simply standing on one foot, it’s actually standing with one foot raised six inches and kept parallel to the ground, while keeping arms at your sides and counting to thirty out loud. Again, it is possible to stand on one foot without it putting it down and “fail” that particular field sobriety test.
The nature of these tests is why it is imperative to make sure that you hire an attorney that is experienced with these issues. A good DUI defense attorney not only will know every single step, phase, and instruction of these tests from the officer’s perspective, but he or she must know and must be able to explain the total picture of these tests from the client’s position in a coherent and convincing fashion. For example, were these tests conducted on the side of a highway with cars buzzing past at over sixty miles an hour or on a flat parking lot? What was the condition of the ground that the tests were given on? Wet? Icy? Cracked and uneven pavement? Was the individual that was tested recently in a car accident? Does the client have any injury history that would impact the tests? Was the client nervous? Is English the client’s native language? Was the client informed that they did not in fact have to submit to these tests? These are just a few of the questions that have to be explored in order to provide a complete analysis of an individual’s performance on the field sobriety tests.
We here at Ruffa Grandinetti, Attorneys at Law have decades of combined prosecutorial and defense experience as it relates to field sobriety testing. Our process consists of carefully reviewing all video evidence, before, during, and after the tests are conducted. We look to see if the officers have in fact conducted these tests in substantial compliance. We speak with our clients to know what was going through their heads when they were taking the tests, and what was going on with their bodies as they were taking the tests. A good defense of field sobriety testing needs to rest on a strong foundation of knowledge that comes with the experience that we have at Ruffa Grandinetti, Attorneys at Law.
Getting charged with a DUI (In Ohio, they are known as OVIs) can be a traumatic experience. For starters, most people getting charged with an OVI have little to no experience with the criminal justice system, starting from their first investigative encounter with law enforcement to their first appearance in front of a judge.
Aside from being handcuffed, booked, and oftentimes placed in a cell, in most OVI arrests you can also expect to have your license taken away and your vehicle impounded.
It is imperative you hire attorneys who are familiar with all the ins and outs of these types of cases. At Ruffa Grandinetti, we make it a priority to get your life back to normal as soon as possible. We will ensure that we can get you back on the road at the soonest opportunity, as well as handling your case in an efficient manner.
At Ruffa Grandinetti we pride ourselves with our accessibility. We strive to ensure our clients know everything that is going on with their case every single step of the way.
As an established Broadview Heights, Ohio law firm, Ruffa Grandinetti, Attorneys at Law works to develop trusting, long-term relationships. This firm’s goal is to provide business clients with the guidance they need to achieve continued profitability and efficient operations. Whatever your legal needs may be, Ruffa Grandinetti, Attorneys at Law can offer you advice and tailored solutions that contribute to the security and exemplary performance of your company.
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If you’re in need of a business attorney, contact Ruffa Grandinetti, Attorneys at Law today to schedule your free initial consultation.
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Defend yourself and protect your future.
When you’re faced with criminal charges or an arrest, it’s only natural to feel scared, alone, and stressed out. There can be a lot of uncertainty when facing a criminal charge but you can put much of that uncertainty to rest once a competent criminal defense firm has been retained. If you’ve recently been charged with a crime, calm your fears and give yourself defensive options by turning to Ruffa Grandinetti, Attorneys at Law, headquartered in Broadview Heights, Ohio. Ruffa Grandinetti, Attorneys at Law can handle all types of criminal law cases, including:
- Violent crimes including domestic violence, assault, and felonious assault;
- Traffic tickets;
- Building Code Violations;
- Drug possession and paraphernalia;
You’re Not Alone
Whether you’re facing a traffic infraction at the state level or have been arrested for a federal crime, Ruffa Grandinetti, Attorneys at Law is prepared to litigate your case. During your legal proceedings, Ruffa Grandinetti, Attorneys at Law will serve as your advocate and offer you ongoing support. Ruffa Grandinetti, Attorneys at Law will fight for you to receive a fair trial, challenge any evidence that is illegally obtained, and make certain that your defense is presented as strongly as possible. Additionally, Ruffa Grandinetti, Attorneys at Law will:
- Carefully investigate your case to uncover evidence;
- Interview all parties involved, including police;
- Bring in witnesses, when appropriate, to testify on your behalf;
- Present you with defense options to help you combat your charges;
- Negotiate with prosecutors to have your charges or sentence reduced;
To learn more about Ruffa Grandinetti, Attorneys at Law’s criminal law services, call today to set up a free initial case evaluation.