June 13, 2006
Arguably, the Rubik’s Cube of Ohio law is determining whether a conviction for simple assault can be expunged, the difficulty resulting from the fact that the statutory provision on that is worded worse than anything this side of the IRS regulations.
RC 2953.36 provides that the expungement statutes "do not apply to any of the following:"
(C) convictions of an offense of violence when the offense is a misdemeanor of the first degree or a felony and when the offense is not a violation of section 2917.03 of the Revised Code and is not a violation of section 2903.13, 2917.01 or 2917.31 of the Revised Code that is a misdemeanor of the first degree;
Anyone know what that means? Anyone? Bueller? Bueller?
Well, let’s break it down. Of all those sections in Paragraph (C), the only one that we have to worry about is 2903.13, which defines assault. Assault is indeed a crime of violence; it says so in RC 2901.01(9)(a).
But the assault statute is a bit of a brainteaser, too. It provides that assault is a first-degree misdemeanor, except for a whole raft of exceptions: it’s a fifth degree felony if committed on the grounds of a correctional institution, a fourth degree felony if committed by a the caretaker of an impaired person, or if the victim is a school bus driver, or an employee of a private child placing agency, and it’s a third degree felony if committed on a Tuesday by someone of Belgian extraction. Okay, I made that last part up, but I didn’t make up the part about the bus driver or the employee of the private child placing agency, so you get the idea.
So, when you strip out all the excess verbiage, what you wind up with in the expungement statute is
You can’t expunge convictions of an offense of violence when the offense is a misdemeanor of the first degree and is not a first-degree misdemeanor under 2903.13.
Or, taking out the double, triple, and quadruple negatives, assault can’t be expunged unless it’s a first-degree misdemeanor.
Essentially, simple misdemeanor assault is an exception to the exclusion. Keep in mind that it’s not the only first-degree misdemeanor that’s a crime of violence but is expungeable: so is riot, and inciting to violence and inducing panic under certain circumstances. (And if you want to lose your will to live, go read the statute on inducing panic, RC 2917.31.) A misdemeanor domestic violence conviction can be expunged if it’s just based on threats (which is a fourth-degree misdemeanor), but not if it’s based on actual or attempted harm (a first-degree misdemeanor). But any conviction for domestic violence is a crime of violence.
Now, obviously, when you go into court to get your client’s assault conviction expunged, you want to be able to tell the judge more than "I read on a blog that you can do this." So you can just site them this case from the 12th District, this one from the 2nd District, or this one from the 8th District. Those cases have the added advantage of not digressing into discussions of crimes committed by people of Belgian extraction.