Monday, May 8, 2017

Daniel Gigiano Reviews Lower DUI Limits

Will Ohio Lower DUI Limit To .05?

 
Will Ohio lower DUI limit to .05?  In March 2017, Utah’ legislature set up the state to become the first state to lower the legal threshold for drinking and driving to .05 blood alcohol concentration.  While states are looking to get more aggressive with DUI laws, such efforts can result in problems in the actual application of the law.  This articles examines the law and the impracticality of enforcing the law on the street and in the courtroom.



Proposed DUI Law Criticized


Critics have said the bill fails to address the real problem, which are the 77% of alcohol-related traffic
deaths in Utah caused by drivers with a blood-alcohol content of 0.15 and above.  The proponent of the law said the problem with the 0.08 BAC law is that “it send the message that you can drink up to a certain point and then drive.”  The proponent then noted that several foreign countries have a 0.05 limit. 

Proposed DUI Law Problems


The field sobriety tests were designed to determine if someone is at a 0.10 BAC or above.  When states lowered the limit to 0.08, that already signaled a move away from criminalizing driving under the influence and towards outlawing drinking and driving.  A 0.05 BAC limit is simply another step in that direction.  Someone at 0.05 could very well pass the field sobriety tests.  If the person is not under the influence of alcohol, can that person be arrested?  If the person cannot be arrested, the request for a breathalyzer does not occur. 

Attorney Daniel Gigiano.  Experienced.  Aggressive.  Dedicated.



Attorney Daniel Gigiano was admitted to the practice of law in Illinois in 1993.  He immediately
began practicing as an assistant prosecutor working in a courtroom that focused on major traffic cases, such as DUI and driving under suspension, spending over one year focusing on the many issues in these cases.  Attorney Daniel Gigiano then spent the next five years of his government practice working on misdemeanors, felonies, grand jury and preliminary hearings, juvenile delinquency cases, and abuse and neglect cases.  In 1999, he was admitted to practice in Ohio.  In 2000, he took his experience to a private practice in Wadsworth, Medina County, Ohio.  Attorney Gigiano has maintained his private practice in Wadsworth since that time.  Call now at 330-336-3330 if you need the services of an experienced Medina criminal defense attorney in Wadsworth.             

Sunday, March 19, 2017

Daniel Gigiano Reviews Ohio Felony Theft Laws

In this article, Attorney Daniel Gigiano reviews Ohio felony theft laws.  Unless otherwise specified by law, theft is a misdemeanor in Ohio.  Theft of property one thousand dollars or more is a felony in Ohio.  Theft of certain listed items also elevate theft to a felony in Ohio.  This article examines how Ohio defines felony theft.

Ohio Felony Theft Values


Ohio Felony Theft Laws are defined in Ohio Revised Code 2913.02.  If the value of the items total one thousand dollars or more but less than seven thousand five hundred dollars, then the offense is theft, a felony of the fifth degree.  This offense has a maximum prison term of twelve months.  If the value of the items total seven thousand five hundred dollars or more and less than one hundred fifty thousand dollars, the offense is grand theft, a felony of the fourth degree.  This offense has a maximum prison term of eighteen months.  If the value of the items total one hundred fifty thousand dollars or more and is less than seven hundred fifty thousand dollars, the offense is aggravated theft, a felony of the third degree.  If the value of the property is seven hundred fifty thousand dollars or more and is less than one million five hundred thousand dollars, the offense is aggravated theft, a felony of the second degree.  If the value of the property is one million five hundred thousand dollars or more, the offense is aggravated theft of one million five hundred thousand or more, a felony of the first degree. 

Ohio Felony Theft For Specified Items 


Theft of certain items are automatically felony offenses, regardless of the value of the property.  These specific offenses are set forth in Ohio Revised Code 2913.02 (R.C. 2913.02) and Ohio Revised Code 2913.71 (R.C. 2913.71).  Fifth degree felonies include: theft of a credit card; theft of a license plate; and theft of a blank motor vehicle certificate of title.  Fourth degree felonies include: motor vehicle theft and theft of a dangerous drug.  Third degree felonies include: theft of a police dog, theft of a firearm and theft of anhydrous ammonia.  This last item has been a hot topic in Medina County over the past five years, as farmers commonly use or store increasingly larger amounts of anhydrous ammonia for use as a fertilizer.  Anhydrous ammonia is also an ingredient in methamphetamines, which makes it a theft target.  Finally, theft of a firearm from a federally licensed firearms dealer is a felony of the first degree.

Attorney Daniel Gigiano Reviews And Articles


To learn more, read my other related posts, where I wrote about will that Ohio judge go along with my agreed sentence, not all fifth degree felonies are alike in Ohio, how to keep from going to jail, make sure you do not serve the same time twice in Ohio jail, Ohio DUI laws have new changes, the price of Ohio shoplifting, and sealing Ohio convictions.  I have successfully defended individuals for both misdemeanor and felony offenses, including felony theft, as set forth in the case highlights section.  This success is reflected in the following links to my reviews:  Daniel Gigiano reviews; Daniel Gigiano ratings; and Daniel Gigiano work.    

Attorney Daniel Gigiano.  Experienced.  Knowledgeable.  



Attorney Gigiano’s office is located at 102 Main St., Ste. 200,  just a short distance from Medina, Ohio.  If you have questions about this or other questions you need answered by an experienced Wadsworth criminal defense attorney in Medina County, please call Attorney Daniel F. Gigiano at 330-336-3330.  Attorney Gigiano has tried over thirty-five jury trials to a verdict, many of them in Medina County, Summit County and Wayne County.  There is no substitute for experience and a record of success.         

Daniel Gigiano Reviews Ohio Court Personnel

Ohio Courts And The People Who Work There


Wayne County Court of Common Pleas
Wayne County Courtroom
Identifying courts and court personnel in Ohio requires the right resources.  There are trial courts,
courts of appeals, supreme courts, and the people who work at these courts.  In this article, Attorney Daniel Gigiano reviews the people who work in some of the most common types of courts in Ohio.  

Ohio Courts: Trial Courts


Medina County Court of Common Pleas
Medina County Courthouse
These courts are where evidentiary hearings, or trial are held.  News reports of someone pleading not guilty or a jury trial are referring to activities in trial courts.  In Ohio state courts, trial courts include municipal courts and courts of common pleas.  In the courts of common pleas, there are several divisions: general division, domestic relations, juvenile, and probate.  The general division handles felony cases and civil cases, such as personal injury and foreclosure cases.  In federal courts, the district court handles criminal and civil cases, while the bankruptcy courts handle all matters falling under the bankruptcy code. 

Ohio Courts: Courts of Appeal

Ninth District Court Of Appeals
Ninth District Court Of Appeals

If you disagree with the trial court’s decision, you can appeal it.  Courts of Appeal review the actions,
procedures and decisions of the trial court.  Ohio courts of appeal hear appeals from Ohio trial courts, usually after a final appealable order has been issued.  Federal courts of appeal hear appeals from federal district court.  Federal courts of appeal also hears appeals from bankruptcy court, usually after an intermediate bankruptcy appeals court hears the case.

Ohio Courts: Supreme Courts


United States Supreme Court
U.S. Supreme Court
The Ohio Supreme Court usually hears cases from the Ohio courts of appeal.  In certain instances, it hears appeals directly from the trial court.  This court serves the same function as the courts of appeals.  However, this court, in its decisions, keeps an eye on policy issues important to the State of Ohio.  This court also drafts rules for the lower courts to follow.

The United States Supreme Court hears appeals from federal courts of appeals and state supreme courts, including the Ohio Supreme Court.  The United States Constitution sets forth the limited times that this court will serve as the trial court.

Ohio Courts: Court Personnel


Some of the people who work in these courts include:
Summit County Court Of Common Pleas
Summit County Courthouse

Justice:  a term that refers to an appellate or supreme court judge.

Judge:  presides over trials and makes decisions in trial courts. 
Bailiff:  the judge’s assistant; in many courts, serves people with court documents, such as subpoenas.

Clerk of Courts:  keeps records of cases, accepts filings and payments on behalf of the court. 

Daniel Gigiano Reviews And Bio


Attorney Daniel Gigiano Reviews Ohio Court Personnel
Attorney Daniel Gigiano
Attorney Gigiano is an experienced Medina County lawyer in Wadsworth.  His positive work is reflected in the following links to his reviews: Daniel Gigiano ratings; Daniel Gigiano; Work of Daniel Gigiano; Daniel Gigiano work; Daniel Gigiano reviews.  Call Attorney Gigiano at 330-336-3330 if you need the services of a Wooster lawyer near Orrville, a Massillon lawyer near Canal Fulton, or an Akron lawyer near Barberton, please call Attorney Daniel F. Gigiano at 330-336-3330.    


         

Sunday, March 12, 2017

Daniel Gigiano Reviews Ohio Public School Student Searches

Ohio Public School Student Searches


When Ohio public school student searches occur, those Ohio students are protected by the Fourth Amendment to the United States Constitution.  The Fourth Amendment protects people in the United States from unreasonable searches and seizures.  Students can be searched if there are reasonable grounds for suspecting the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.    

Fourth Amendment To The United States Constitution


The Fourth Amendment To The United States Constitution states as follows:

“The right of the people to be secured in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Ohio Public School Student Searches Include Drug And Alcohol Tests


Ohio public school student searches include drug and alcohol tests.  These tests are searches limited by the Fourth Amendment.  Public schools can test students for drugs or alcohol if there is reasonable suspicion that the student has consumed alcohol or drugs.  Reasonable suspicion exists if the student looked impaired and there was reliable information the that the student recently consumed alcohol or drugs.

Random Drug Testing Of Students Is Limited


Ohio schools cannot have a random drug-testing policy for all students.  Ohio schools can have random drug-testing for students who participate in school activities, such as athletics, band and choir. 


Attorney Daniel Gigiano.  Experienced.  Aggressive.  Dedicated.



Attorney Daniel Gigiano was admitted to the practice of law in Illinois in 1993.  He immediately began practicing as an assistant prosecutor working in a courtroom that focused on major traffic cases, such as DUI and driving under suspension, spending over one year focusing on the many issues in these cases.  Attorney Daniel Gigiano then spent the next five years of his government practice working on misdemeanors, felonies, grand jury and preliminary hearings, juvenile delinquency cases, and abuse and neglect cases.  In 1999, he was admitted to practice in Ohio.  In 2000, he took his experience to a private practice in Wadsworth, Medina County, Ohio.  Attorney Gigiano has maintained his private practice in Wadsworth since that time.  Call now at 330-336-3330 if you need the services of an experienced Medina criminal defense attorney in Wadsworth.              

Daniel Gigiano Reviews Mental Capacity For Wills

Will Changing Mental Capacity


In 2016, the Ninth District Court of Appeals decided that a person under legal guardianship can
execute a valid will, ruling on will changing mental capacity.  Even more notable are the reasons: he suffered from schizophrenia, post traumatic stress disorder, had a low IQ and was a frequent drug user.  Using traditional analysis, the court determined that he had the capacity to execute a will. 

Will Changing Mental Capacity Factors


In order to have the capacity to execute a will, one must understand: (1) that he or she is drafting a will; (2) what he or she owns; (3) who his or her natural heirs would be without a will; and (4) his or her relation to the members of his or her family.  Such understandings are at the level of a layperson and not an attorney.  This means the person should be able to state whether or not he or she owns real estate, vehicles and other property.  The person should be able to recall all of his or her biological and adoptive children.  These are just a few examples, but the point is that this is not a highly complex level of understanding. 

Court Of Appeals Will Change Mental Capacity Decision


The court of appeals did note that being subject to guardianship creates a presumption that one lacks
the capacity to execute a will.  However, that presumption can be overcome by showing facts that support the four factors for capacity to execute a will. 

In the case at hand, the person changed his will and family members asserted that the will was invalid.  In reviewing the evidence, the Ninth District Court of Appeals decided that the presumption of lack of capacity was rebutted.  However, this does not end the inquiry, as this only rules out automatic lack of capacity.  Once this occurs, the court disregards the guardianship as evidence of lack of capacity and looks at other evidence of capacity to execute a will.  For technical reasons, the court sent the matter back to the probate court to consider conflicting testimony on competency, which could affect the capacity to execute a will.   
   
The Ninth District Court of Appeals also considered the issue of undue influence.  Undue influence is not the mere presence of some influence.  Undue influence occurs when the person’s will is so overpowered that he or she is no longer expressing free will in executing the will, but is expressing the will of another.  The factors are: (1) a susceptible person; (2) another’s opportunity to exert influence on the person; (3) attempted or actual improper influence; and (4) a result showing the effect of such influence. 

Attorney Daniel Gigiano.  Experienced.  Knowledgeable.


Attorney Daniel Gigiano is a Wadsworth probate lawyer, who serves the needs of clients in Medina County, Wayne County and Summit County.  Call now at 330-336-3330 if you need the services of an experienced probate attorney.      


         

Daniel Gigiano Reviews Ohio Felony Sentencing

Wayne County Court of Common Pleas
Wayne County Courtroom
Ohio felony sentencing laws place most Ohio crimes into five classes.  These range from the lowest (fifth degree felony) to the highest (first degree felony).  This article will focus on the basic sentencing scheme.  This article will not discuss specialized Ohio felony sentencing laws, such as the death penalty, life imprisonment, and mandatory additional prison time.  Rape and murder are crimes that fall into such specialized Ohio felony sentencing laws. 

Ohio Felony Sentencing Range


Medina County Court Of Common Pleas
Medina County Courthouse
The lowest offense is a fifth degree felony, which carries six to twelve months in prison.  Next, comes the fourth degree felony, which carries six to eighteen months in pris
on.  Third degree felonies have two tiers.  The upper tier carries one to five years in prison.  The lower tier carries nine to thirty-six months in prison.  Second degree felonies carry two to eight years in prison.  Finally, first degree felonies carry three to eleven years in prison. 

Ohio Prison Presumption


Summit County Court Of Common Pleas
Summit County Courthouse
Unless certain factors apply, Ohio law guides judges against imposing prison time for fourth and fifth degree felonies.  There is no presumption for third degree felonies.  There is a presumption for imposing prison time for first and second degree felonies. 

Ohio Felony Sentencing Chart


Felony classification
Presumption
Sentencing Range
Fifth degree felony
Against prison
6-12 months
Fourth degree felony
Against prison
6-18 months
Third degree felony-lower
None
9-36 months
Third degree felony-higher
None
12-60 months
Second degree felony
For prison
2-8 years
First degree felony
For prison
3-11 years



Attorney Daniel Gigiano.  Experienced.  Aggressive.  Dedicated.

Attorney Daniel Gigiano Reviews
Attorney Daniel Gigiano
Attorney Daniel Gigiano was admitted to the practice of law in Illinois in 1993.  He immediately began practicing as an assistant prosecutor working in a courtroom that focused on major traffic cases, such as DUI and driving under suspension, spending over one year focusing on the many issues in these cases.  Attorney Daniel Gigiano then spent the next five years of his government practice working on misdemeanors, felonies, grand jury and preliminary hearings, juvenile delinquency cases, and abuse and neglect cases.  In 1999, he was admitted to practice in Ohio.  In 2000, he took his experience to a private practice in Wadsworth, Medina County, Ohio.  Attorney Gigiano has maintained a practice in Wadsworth since that time.  Call now at 330-336-3330 if you need the services of an experienced Medina DUI attorney in Wadsworth.      


         

Daniel Gigiano Reviews DUI Blood Tests

Mandatory DUI Blood Tests Unconstitutional


Mandatory DUI Blood Tests Unconstitutional
DUI Blood Tests
Many states, including Ohio, criminalize the refusal to submit to alcohol testing after being arrested for DUI.  The United States Supreme Court, in ruling mandatory DUI blood tests unconstitutional, imposed severe limits on such state laws.

In its 2016 decision, the U.S. Supreme Court upheld warrantless breathalyzer tests but struck down warrantless blood tests for DUI investigations.  The Supreme Court concluded that breath tests are not very intrusive and that state have a compelling interest in preventing
drunk driving.  Obtaining blood draws are more intrusive, as they involve piercing the skin and extracting a part of the subject’s body. 

Background


States used to just impose license suspensions for refusing tests for measuring blood alcohol levels.  States began passing tougher DUI laws by increasing penalties for higher blood alcohol levels.  Faced with greater criminal penalties, suspects had a lot of motivation to refuse a test measuring blood alcohol if they felt it would result in high enough levels to require such increased penalties.  The states responded by making refusal of alcohol tests a crime. 

Impact on Ohio DUI law


Horizontal Gaze Nystagmus Test
Horizontal Gaze Nystagmus Test
Ohio DUI laws make it a crime to refuse any testing for alcohol or drugs if one is also guilty of DUI.  In other words, refusal of alcohol testing is not a crime in Ohio if one is not operating a motor vehicle while impaired. 

Due to the U.S. Supreme Court decision, Ohio’s law criminalizing refusal to take blood tests is unconstitutional.  If law enforcement wants a blood tests, they will have to get a warrant.  However, I believe it is no longer a crime to refuse a blood test after being arrested for OVI in Ohio.  This does not mean that some police officer, prosecutor and court will not try to enforce this invalid law.  It simply means that I believe, in the end, one would prevail on this issue.  

If you would like to read more about Ohio OVI laws, take a look at my white paper on Ohio OVI law. 

Attorney Daniel Gigiano.  Experienced.  Aggressive.  Dedicated.


Attorney Daniel Gigiano was admitted to the practice of law in Illinois in 1993.  He immediately began practicing as an assistant prosecutor working in a courtroom that focused on major traffic cases, such as DUI and driving under suspension, spending over one year focusing on the many issues in these cases.  Attorney Daniel Gigiano then spent the next five years of his government practice working on misdemeanors, felonies, grand jury and preliminary hearings, juvenile delinquency cases, and abuse and neglect cases.  In 1999, he was admitted to practice in Ohio.  In 2000, he took his experience to a private practice in Wadsworth, Medina County, Ohio.  Attorney Gigiano has maintained a practice in Wadsworth since that time.  Call now at 330-336-3330 if you need the services of an experienced Medina DUI attorney in Wadsworth.