This and that
Question for the day. A client comes in, tells you he's got a DWI and a felony theft. Can he have them expunged?
A year or so ago, you'd tell him no, and he'd be on his way. The law at that time allowed an expungement only for a "first offense," and the DWI was a double whammy: although minor misdemeanors and most traffic violations aren't considered an "offense" for purposes of determining whether someone is a first offender, DWI is, and that would've precluded expungement of the theft. And even if the client only had the DWI, there's nothing you could do: DWI, like certain other offenses (domestic violence, 1st and 2nd degree felonies) wasn't expungeable.
A lawyer called me up the other day and asked if SB 337 changes that, and I think it does. SB 337 (which I discussed here) was the revision to the expungement statute which was enacted last year, and allows you to expunge two offenses: two misdemeanors if they're not the same offense, or a felony and a misdemeanor.
So let's work through the DWI and the felony theft. You can't expunge the DWI; SB 337 didn't change that. But while an eligible offender used to be someone who had no prior convictions, it's now defined as someone who has "not more than one felony conviction and one misdemeanor conviction."
That doesn't mean you have to be able to expunge both of them. The DWI counts as the misdemeanor, and while it isn't expungeable, the felony theft is. The lawyer who called directed my attention to RC 2953.36, which says that the expungement statutes don't apply to certain convictions. But that's what keeps you from expunging the DWI (or domestic violence of a 1st or 2nd degree felony); it doesn't prevent you from expunging the theft.
That can be useful. A conviction for felony theft will probably have more dire consequences on a client's ability to get a job that a DWI. Unless it's a job as a taxi driver, and from my last few experiences on that score, it doesn't appear to be much of an employment barrier there, either.
McNeely update. The same lawyer told me that the Arizona Supreme Court had come down with a decision holding Arizona's implied consent law illegal following Missouri v. McNeely. That's the Supreme Court decision this year which rejected the idea that the natural dissipation of alcohol in the blood always constituted "exigent circumstances" allowing the police to do a blood draw without a warrant. When I discussed the decision (here and here), I posed the question of how it might impact implied consent laws. Obviously, it invalidated those laws to the extent that they allowed a warrantless blood draw because you had impliedly consented to that by driving. But what if you did consent to the blood draw? Could you later claim that your consent was invalid, because it was coerced by the fact that you'd be penalized if you withheld consent?
Unfortunately, the Arizona decision isn't that clear cut. The defendant in that case did indeed consent to the test, and then subsequently claim that his consent was not voluntary. The opinion does reject the argument that the voluntariness of the consent is not an issue because consent is "implied" under the statute. But there are two problems with reading it any more broadly than that. First, the defendant there was a juvenile, and that played a big factor in both the trial and supreme court's view of whether the consent was voluntary. Second, the trial court had suppressed the evidence, and the supreme court reviewed that only for abuse of discretion; in many other states, including Ohio, that would be a "mixed question of law and fact," probably resulting in de novo review. (As the concurring opinion noted, had the judge ruled the other way, that almost surely would have been upheld, too.) I'll keep my eye out for any other cases on this issue; I think it's an interesting one, and will develop in ways that might not have been anticipated by the majority in McNeely.
Overkill. I ran into Craig Weintraub, one of the attorneys for Ariel Castro, a week or so after Castro was originally indicted on 329 counts of aggravated murder, rape, kidnapping, and various other offenses stemming from his having held three girls in captivity for close to a decade, impregnating them on several occasions, and then forcing them to miscarry. "Hey, Craig," I comforted him, "once you get past those first hundred counts, it should be smooth sailing."
When I'd first discussed the case, I'd mentioned that County Prosecutor Tim McGinty had indicated that the indictment covered only the period up through February 2007, and the case was still being investigated, with additional charges likely. He proved true to his word; the other day Weintraub and his co-counsel, Jaye Schlachet, appeared for Castro's arraignment on the superseding indictment, which contained -- wait for it -- 977 counts.
I'm not sure how all this is consistent with McGinty's vow to make the criminal justice system more efficient, which I discussed yesterday. After all, everybody, including the defense team, agrees that whatever the outcome of the case, it does not include Castro ever wearing anything besides an orange jumpsuit. And everybody pretty much agrees that this case is never going to be tried, barring McGinty's forcing that issue by adding capital specifications to the aggravated murder charges in the indictment. To be sure, it's not unusual for a prosecutor to go overboard in indicting someone, especially in high-profile cases, but this seems to be a bit over the top.
I think the tendency for prosecutors to produce this kind of magnum opus could have been substantially reduced if Castro had been aware of one little procedural quirk in the arraignment process. You know the part where the judge asks the defendant if he'll waive reading of the indictment? I would've paid money to see Castro respond, "Well, judge, I've got nothing but time, so...."