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...."
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