Criminal Law FAQs
Criminal law is full of questions
What’s the difference between a misdemeanor and a felony? How likely is it that your case will go to trial? From the initial consultation to closing your case file, Yavitch & Palmer is here to help you every step of the way.
To find answers to the frequently asked questions listed below, click the respective category link. Still have questions? Contact us today. Our Columbus criminal defense attorneys look forward to sitting down with you to discuss your case and help resolve your legal situation.
What To Expect
What is the fee for a consultation?
We provide a free consultation with no obligation to hire our law office. Your initial appointment is an opportunity for our attorneys to gather information about your situation and answer your questions. This consultation also provides you an opportunity to meet the lawyers in person. It is important that you are comfortable with your Ohio criminal defense attorneys and the office in general. At this consultation, we can help analyze your problem, discuss your options, and discuss legal fees.
How much will it cost for you to handle my criminal law case?
We typically assess legal fees on a flat rate basis. The amount of the flat rate depends on many factors, such as type of charge, jurisdiction, and prior criminal record. Sometimes the fee will be graduated. In this situation, there will be minimum fee, with additional fees in the event of motion hearings or trials.
In certain circumstances we bill on an hourly basis. Hourly billing is common for white collar defense. We also engage in hourly billing in situations where the status of the case is uncertain. This is common where there is a police investigation but no charges pending.
We usually request advance payment of fees. Client funds are placed in a trust account, where they are held until dispersed under the fee agreement.
Where appropriate, we sometimes accept partial payment of fees and discuss a payment plan for the balance.
We accept all forms of payment cash, check, money order, and most major credit cards.
Fees are discussed in detail during your initial consultation. It is helpful for everyone to understand the payment arrangements before representation begins.
What is going to happen in court?
Traffic and misdemeanor offenses
Your first court appearance is generally an arraignment. If the case cannot be resolved at the arraignment stage, we will likely enter a plea of not guilty. The case will then be assigned to a judge for further proceedings.
Many courts schedule various pre-trial hearings. Pre-trial hearings are often informal conferences between your attorney, the prosecuting attorney, and the judge. These hearings provide an opportunity for plea negotiations, discovery conferences, and possible resolution. You should assume that you must attend all court hearings, including pre-trial hearings.
Some cases typically require motions hearings. These are more formal hearings that may require testimony from police and witnesses. In rare situations, the defendant may be called to testify at a motion hearing. Prior to any testimony, we will spend time preparing you and reviewing the required testimony.
When required by the facts and circumstances of the case, you may consider a trial. Minor misdemeanor violations are tried to the court (judge). All other misdemeanors provide the right to a jury trial. Given the option, we almost always choose to have a jury trial. Sometimes, depending on circumstances, we may suggest that you waive your right to a jury trial and instead try your case to the judge. Trials are complicated matters that involve testimony, exhibits, and legal arguments.
Trials are generally considered only as a last resort. At all stages of the process, cases can be resolved by plea negotiations. We will spend a significant amount of time discussing your options as the case progresses. We believe that our clients should participate in the decision-making process. In some situations, trials are necessary. In others, they should be avoided. We will help you make these complicated decisions.
Felony offenses in Ohio are handled in county courts of common pleas. But they often start in city municipal courts upon the filing of a criminal complaint. When a police agency files a felony complaint in a city court, the case is scheduled first for an initial appearance before a judge or magistrate. This is not an arraignment and we do not enter a formal plea at this stage. The purpose of an initial appearance is to address bond. Depending on the nature of the case, bond types and amounts may vary. Many defendants are released on their own promise to appear at later proceedings (on their own recognizance). Others are released on the condition that they post money to secure their appearance. But sometimes in the most severe cases, courts will hold a defendant without bond.
Once the judge or magistrate sets a bond, the case is typically scheduled for a preliminary hearing before a judge or magistrate in the city municipal court. This is sometimes referred to as a probable cause hearing. The purpose of this hearing is to determine whether the state or prosecution has sufficient evidence to charge and hold a defendant on a felony offense.
There are few, if any, preliminary hearings in our court system. Prosecutors typically do not want to conduct these hearings, as they require a showing of evidence at an early stage in the process. To avoid having a preliminary hearing, prosecutors have two options. First, they can simply dismiss the case in municipal court with plans to present the case to a grand jury for indictment in the future. We often hear the term dismissed for future indictment. Second, prosecutors have the option to present the case to a grand jury prior to the preliminary hearing. If the grand jury returns an indictment, then the preliminary hearing becomes irrelevant, as the case is already initiated in the county common pleas court. The municipal case is then dismissed for a direct indictment.
Once a felony case commences in the county common pleas court, it follows a path similar to misdemeanor cases. There is first an arraignment, followed by pre-trial and motion hearings. If the case cannot be resolved, it may be proceed to trial before a judge or a jury. A client’s appearance is required at all scheduled court proceedings.
What is “bond” and how does it work?
Courts always require some form of “bond” to secure a defendant’s appearance. Many defendants are not even aware that they are on bond, as most cases do not require any formal payment or signatures. We commonly see three general bond types throughout Ohio courts. While the types of bond are fairly consistent, courts sometimes use differently terminology to describe the bond. Read more
What time period does the government have to file an indictment?
Different offenses carry different statutes of limitations. There are sometimes long delays when felony cases are dismissed in the city municipal courts for a potential future indictment. If the delay exceeds the statute of limitations, there may be a defense. We can discuss the relevant time periods with you as the case progresses.
What kind of timetable can I expect for my case to be resolved?
The type of charge will determine the amount of time necessary for resolution. Minor traffic tickets can generally be handled with minimal court appearances. Misdemeanors may require several court dates in order to obtain the result in your best interest. Despite our best efforts to avoid unnecessary delays, you should expect continuances during the course of your case.
Will I be required to attend all court proceedings?
Your appearance is required at all court appearances unless someone from our law office specifically advises you otherwise. We appreciate your busy schedule and personal obligations, but all efforts should be made to attend all court proceedings. If you are aware of a scheduling conflict, please give us advance notice, and we will do our best to reschedule the matter. Courts frown upon a defendant’s failure to appear at a scheduled court hearing. Despite our efforts, courts often issue warrants to arrest for failure to appear.
What can I expect on the day of court?
Courts often schedule multiple cases at the same time and date. Depending on the jurisdiction, your case may not be heard exactly at the time scheduled and delays are inevitable. You will nonetheless need to be present at your scheduled time. Upon arrival, you should check in with court personnel and advise them that you are represented by Yavitch & Palmer. They will likely instruct you to wait inside or outside the courtroom. Do not worry if you do not see us right away. We often check in with the court prior to your scheduled time and begin working on your case before your arrival. We will make contact with you as soon as possible and provide updates and discuss the situation.
If I only have a speeding ticket, do I need to appear in court?
Depending upon your driving record, we may be able to handle your hearing without your presence if you complete an absentia form we provide. The form must be notarized and returned to us before your court date.
Can an old charge be removed from my record? What about Ohio’s expungement law?
Under Ohio law, records from certain convictions may be sealed and treated as if it never happened. When we help people clean or expunge their records, we start with some basic questions. The first is whether the particular offense is eligible to be sealed. Unfortunately, fewer and fewer offenses qualify under the law. For instance, any offenses of violence and most sex offenses (as defined by the Revised Code) cannot be sealed. And Ohio law does not permit traffic offenses (including OVI’s) to be sealed. Assuming the offense is eligible, the next question pertains to the prior and subsequent criminal record. Under the law, only first time offenders qualify. Other convictions on unrelated matters may render the person ineligible. Further, any OVI conviction (even though a traffic offense) precludes sealing of any other convictions.
Once we determine that the statutory criteria are met, we prepare a motion and application to have the record sealed. Depending on the circumstances, the prosecutor’s office may object to the application. The case will be scheduled before a judge, who will make the final determination. Once successfully sealed, the records of the conviction will be closed and cannot be accessed except in very limited situations.
How can I see my driving record?
The Ohio Bureau of Motor Vehicles allows online access to a driver’s record (called an “abstract”). This is technically an unofficial record, but it can be very helpful in determining driver’s license status. Go to Ohio’s BMV website and click on “BMV driving records”. Then click “Certified 3-Year Driving Record”. A $5.00 fee applies per the request. You will also need to know your driver’s license number and the last four digits of your social security number.
Navigating the Trial Process
How likely is it my case will go to trial?
Trials are rare, with just 2.5 percent of Ohio criminal cases going to trial in 2012. Most cases resolve by plea negotiations. But every case is unique. There is no definitive rule on this. The defendant needs to consider numerous factors in deciding whether to go to trial. The costs and risks of trial must be weighed against the likelihood of success. Sometimes the choice is easy, while other times it is far more difficult. We believe in representing clients, and clients have problems unique to their circumstances. We strive to work with the client intimately to help make this difficult decision. We do not start with the premise that all cases should go to trial. And we certainly do not believe that all cases should resolve in a plea bargain. Our job is to help unravel all the variables and make sure the client makes the best decision under their own circumstances.
What kinds of crimes go to trial?
Any case can go to trial. Although we often see the most serious matters in trial, that is not always the case. Sometimes the more serious offenses carry the risk of greater consequences. We commonly have trials on all matters, including OVI, traffic, and complex criminal cases. Each client’s case must be assessed individually, considering the evidence, the consequences, and (most important), what is best for the client.
Criminal Defense Laws
What’s the difference between a felony and a misdemeanor?
A misdemeanor is less serious and carries a lighter punishment than a felony. In Ohio, the maximum penalty for a misdemeanor is up to six months in jail and/or a $1,000 fine.
Felonies are more severe. And depending on the crime, punishment can result in significant periods of imprisonment, or even the death penalty. Felonies also carry other collateral consequences, which can jeopardize firearm rights, limit employment opportunities, and hinder other freedoms.
What’s the difference between federal and state white-collar crimes?
The difference between Ohio state and federal white-collar crimes is based on whether you have violated an Ohio state or federal law. Similar to other types of criminal law, if your crime involves a federal agency then you have committed a federal crime. There are specific federal agencies that are often affected by white collar crimes, such as the IRS, United States Postal Service, Securities and Exchange Commission and United States Treasury. Often conduct results in a violation of both federal and state law. It is up to the authorities, sometimes with the input of the defense attorney, where the case will be prosecuted. And, in some circumstances, crimes can be prosecuted on both the federal and state levels.
If you have been convicted of a white-collar crime, at the state or federal level, you could face:
- Giving back any monies or property you have unlawfully taken
- Surrender money and/or property
- Remain on home detention
- Released under strict supervision
Keep in mind that your lawyer is able to engage in negotiations with federal prosecutors if you have been charged with a federal offense. The federal prosecutor will likely refer to sentencing guidelines and suggest penalties without taking into consideration any extenuating circumstances.
How does the expungement law process work?
Under Ohio law, records are sealed not expunged. In practical terms, there may not be much difference. But the nomenclature in Ohio is different than most other states.
Once a record is sealed, it is removed from the purview of the general public. It can, however, be viewed under limited circumstances. For instance, certain government employers may consider and/or view the record. And generally any sealed records can be considered for other employment positions involving teaching minors, law enforcement, and specific licensed positions (such as attorneys).
Aside from these exceptions, Ohio law permits a person to treat a sealed record “as if it never happened.” And, under some circumstances, it can be a crime for someone to consider a sealed record.
Eligibility is the first question in the sealing process. Not all crimes are eligible to be sealed, depending on classification by degree and the nature of the offense. Ohio law has recently changed for the better. And certain convictions can now be sealed even for multiple offenders. So even if a particular case was not eligible in the past, it may be worth a second look under the new expungement law.
Timing is the next issue. For misdemeanors, eligible convictions can be sealed one year from the date of discharge from the court sentence. This means that a record cannot be sealed until one year after the jail sentence is served, the fine is paid, and probation is completed. For felonies, the wait is three years from the date of final discharge. If the original charge, complaint, or indictment was dismissed or there was a not guilty verdict, there is no waiting period. An application can be filed immediately.
Once it is determined that a conviction is eligible and the appropriate time period has elapsed, the offender may file the appropriate paperwork in the court that had original jurisdiction over the case. Most courts charge a filing fee, sometimes even on dismissed cases.
Once filed, courts will typically conduct a background check to verify eligibility. The prosecutor will also have an opportunity to respond in writing.
Once the process is complete, the court will likely schedule the case for a hearing. The standard requires the court to balance the defendant’s interest in having the record sealed against the government’s interest in maintaining it. Sometimes there is a full blown hearing with witnesses and arguments. Other times the matter is resolved by paperwork only.
At some point after the hearing, the court will issue an order either granting or denying the application. If the records are sealed, the court’s entry should be sent to various on-line reporting agencies. It is impossible to catch all references to the records, but we can typically eliminate the most common reporting services. And, in time, we can quash other reports of the record if they emerge.
Can I appeal my criminal conviction?
When a jury or judge renders a decision in a criminal trial, the defendant has the right to appeal the decision. Many criminal cases that result in litigation go on to the appellate process.
On appeal, a higher court reviews the lower court’s judgment. Unlike other forms of litigation, in appellate law there is no discovery. The appellate record is limited to the facts presented during the original trial. In Ohio, appeals are presented to a three-judge appellate panel. Because appeals are decided almost entirely on the written briefs, a compelling appellate brief and a powerful oral argument are the vital tools of a successful legal advocate’s appeal.