Herking Law
Child Support and Job Loss

Many of my clients are ordered by the Court to make child support payments, as they rightfully should be obligated to support their children.  However, with the decrease in jobs and increase in layoffs, many of my clients have lost their jobs.  This is one changed circumstance that may justify a modification in their support payment.  Without filing for a modification, the amount you are ordered to pay stays the same, even while you have no income.  This could lead to contempt hearings and criminal charges for nonsupport being levied.  It could also lead to the loss of your driver’s license.  If you have experienced a job loss that was through no fault of your own, and are court ordered to make child support payments, contact an attorney as soon as possible so that the necessary steps can be taken to help you. 

Rob Herking
(513) 659-8892
herkinglaw.com

Marijuana

Possession of Marijuana is often viewed as just a payout ticket.  However, it does carry some additional penalties that should be considered before quickly pleading guilty to “just get it over with.”  First, the fine and court costs can be a couple hundred dollars.  But more importantly, there is a minimum 6 month driver’s license suspension that you must contend with.  While privileges can be granted, they aren’t automatic.  Further, it may be reflected on a prospective (or current) employer’s background investigation.  So before you walk into court alone, you may want to contact an experienced criminal defense attorney to discuss your options, and all potential penalties.


Rob Herking
The Herking Law Firm
(513) 659-8892

Fourth Amendment - Your Friend

The Fourth Amendment to the United States Constitution provides that searches and seizures of citizens are illegal unless a well-defined exception is found.  There are several exceptions, including exigent circumstances (evidence may be lost or destroyed), “hot pursuit” (police may enter a residence if they reasonably believe a suspect they were chasing entered the residence), or “automobile exception”.  These exceptions to the general rule that a search warrant is necessary are constantly evolving and changing.  The U.S. Supreme Court just changed the general rule that police can put gps tracking devices on automobiles in the past year (before they were generally allowed, but now they are not).  There are nuances to these above general rules, but the bottom lline is this = if you are charged with a crime, an experienced attorney will be able to guide you and ensure your rights were protected during your interaction with law enforcement. 

Bottom line, you don’t have to let the police into your residence, nor allow them to search your car.  Typically you have the right to refuse, and your refusal (and their ultimate search) will be tested in court should you be arrested.  There are always exceptions to every rule, especially the general rules outlined above, but you should know the founding fathers sought to protect you from unwarranted government intrustion by way of the Fourth Amendment.

The above is given for information purposes.  Only a detailed discussion with an experienced attorney, explicitly discussing the intricacies of your case, will provide you with legal advice. 

Rob Herking

The Herking Law Firm

(513) 659-8892

rherking@herkinglaw.com

DUI (OVI) consequences….again!

I know I have written about DUI law and DUIs in Cincinnati before, but the topic is important.  It is important because the DUI laws in Ohio are constantly changing as new cases are decided, and the legislature updates the statutes to appease lobbyist and constituents.  While these laws are often made with the public’s safety in mind, the real consequences of these modifications are not fully investigated.  What about the mother or father who made a mistake and drove after drinking too much (an isolated incident), or had a glass of wine or two and thought they were fine but tested over the legal limit of .08 BAC (if over 21).  What happens is they lose their license for a minimum of six months (they often will be provided with driving privileges), face incarceration, and hefty fines.  In this economy, the fines alone could devastate a family trying to survive.   

The worst consequence is the loss of a job or a job prospect.  Employers these days are using background investigations, including criminal history checks, with more frequency.  Even though you may not utilize your license for your job, a DUI / OVI conviction on your record could mean the difference between keeping your job and house, or losing everything.  At the rate we are going, it may be tough for employers in some industries to fill open positions with qualified individuals.  DUIs are not uncommon, as any observer in a municipal court will see on a daily basis. 

As stated previously, the first attack is against the probable cause for the stop and the tests that were performed (assuming the individual performed the requested tests).  If the state properly conducted these tests, and probable cause was found, the next is to negotiate with the State for a reduction, or to take the case to trial.  A lot of people ask if they will be able to get a reckless operation plea bargain.  Reckless operation is just that, recklessly operating a motor vehicle (see below for the statutory elements).  However, many times Judges will treat a reckless operation plea as an OVI / DUI plea for purposes of sentencing, and will impose the 3 day jail/RDIP course, fines consistent with OVI / DUI, and driving suspension.  The positive to this type of plea is that it is not a DUI, which has elevated penalties for subsequent convictions. 

So, what is the best advice….hire an attorney that handles DUI / OVI cases frequently in the county where you are charged.  These attorneys will be able to answer a lot more questions than someone who doesn’t consistently practice in that county.  If you are in need of legal advice concerning an OVI / DUI or other criminal offense, contact me today for a free initial cosultation. 

Reckless Operation

4511.20 Operation in willful or wanton disregard of the safety of persons or property.

(A) No person shall operate a vehicle, trackless trolley, or streetcar on any street or highway in willful or wanton disregard of the safety of persons or property.

(B) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.

There is no attorney-client relationship formed or intended with this post.  This is strictly for information purposes.  Contact an attorney licensed in your state for legal advice.  Robert A. Herking is licensed in Ohio, Kentucky and United States District Court, Southern District of Ohio.  The above is based on Ohio law only.

Misdemeanor

If you ever read this post, then you will know that one of my biggest pet peaves is the fact that many people think misdemeanors are nothing to worry about.  I heard a woman today at court say that she was not rrepresented and just wanted to plead “not guilty and get this over with.”  I am not kidding.  She might as well said I just want to plead “no contest and not have a job” or “no contest and don’t care about my future.”  Seriously, most employers will do a background check and will not hire you should you have a conviction for a crime.  Job markets are tought, with supply outranking demand.  Shouldn’t you make the state prove their case if they want you to plead guilty as charged?   

Walking into a courtroom and saying I am guilty, which is what a “no contest” plea is the equivalent to, is just wrong.  If you are going to plead as charged, why not make the state prove their case?  Could you get a better deal if you were repreesneted by a compentent attorney?  If facing a misdemeanor of the first degree (0-180 days and up to a $1000 fine), wouldn’t you rather plead to a lower degree misdemeanor?  That is what an attorney who practices criminal law will work for, and if not, then you will know that your case is tried with your rights and interests protected.  For not too much money, or none at all (if represented by the public defender or an appointed attorney), that is what you should expect.

Before you walk in and say you just “want to get it over with,” take a moment and pause and think about your future.  Hire an attorney, or speak with a public defender.  Your future may just depend on it. 

Cincinnati Bankruptcy Information

Individuals facing financial hardship must confront a choice:  to file or not to file…bankruptcy that is.  Filing bankruptcy was once viewed as shameful and something to hide.  Today, you would be surprised at the number of, and types of, people filing for bankruptcy protection.  Our country is still facing an economic depression unseen since the Great Depression, and bankruptcy often allows for a clean start.  While this decision should not be entered into lightly, there are benefits to filing.  

There are two basic types of bankruptcy that an individual can consider: Chapter 7 and Chapter 13.  Very generally, Chapter 7 bankruptcy is when a person has a trustee take all non-exempt property they own and liquidate the assets to pay outstanding creditors.  It is usually rather short, and at the conclusion, the consumer walks away with no debt.  Chapter 13 is where a repayment plan is established, sometimes offering creditors pennies on the dollar of debt, and the repayment term could last as long as five years.  All creditor claims are accumulated, a repayment plan is finalized, and the creditors are stuck with what they get.  The consumer who makes their payments as indicated in the repayment plan will walk away at the end without any debt (all debt not paid is discharged).  If the consumer struggles with the repayment plan, the Chapter 13 case can be converted to a Chapter 7 case.    

Which Chapter you should choose is an independent decision to be made by you, after consulting with an attorney.  There are many factors that are to be considered before deciding to file for bankruptcy, and there are many factors to be considered when deciding what Chapter to file under.  But the bottom line is that all creditors must stop contacting you directly.  Or, in other words, all those phone calls about delinquent payments will stop.  

If you are receiving harassing phone calls from creditors, or facing foreclosure, contact your Cincinnati Bankruptcy Attorney at The Herking Law Firm to discuss which option is best for you.  

The Herking Law Firm

Robert A. Herking

(513) 659-8892

Sealing your record in Ohio

Do you have a conviction for a criminal offense that has plagued you while seeking a new job?  Are you worried that your current employer may find that old conviction for a misdemeanor you had when you were young and terminate you?  Why not get it sealed (or expunged)?  In Ohio, if you are considered an “eligible” offender, you may be able to get your prior conviction (or convictions) sealed, if you meet the definition.    Under ORC 2953.32, if you are a first time offender, a conviction can be sealed, but the hard part is figuring out if you are a first time offender or not.  The general rule is that if you have a prior OVI or crime of violence, then you are not a first time offender.  If you have multiple convictions, separated by a period of time, you will also not be deemed to be a first time offender.  However, most minor misdemeanors can be expunged, as well as offense that do NOT involve violence, if they are spatially related.  For example, two disorderly conduct convictions will typically allow for expungement if you have no other convictions that are higher rated misdemeanors.  If in doubt, call me for a free discussion.  

While the conviction may be sealed, it is not always guaranteed, and the prosecutor can fight the expungement.  While you can do it yourself, an attorney can review the statute for you and make sure you are eligible before wasting your money on the costs.  Most attorneys will do this for a small fee, and it will benefit you tremendously when seeking employment (or trying to retain employment).  Call me today to find out if you are eligible under Ohio law.  Everyone’s prior criminal history is different, and a careful reading of the statute with your history in mind is necessary. 

Robert A. Herking

The Herking Law Firm

8595 Beechmont Avenue

Cincinnati, Ohio 45255

(513) 659-8892

OHIO OVI INFORMATION

Many people do not know that you can get a DUI even if you test under .08 blood alcohol content. That is because in Ohio there are two separate provisions under 4511.19. The one most people are familiar with is a “per se” violation, which is where you test at above .08 blood alcohol content. However, there is another provision under 4511.19 where an officer can arrest you for operating a motor vehicle while intoxicated even if you do not test, or do test but your BAC reading is below .08.  

The penalties for both are the same, and can have lasting and very detrimental effects on your future.

Ohio currently recognizes three standard field sobriety tests under the law.  The first is the walk and turn test, where the officer will request that you walk  along an imaginary line (or sometimes an actual painted line on the surface of the roadway) a certain number of steps, turn, and walk back, all the while counting the steps. The second test is the one leg stand, where the officer will have you put your hands to your side, raise one foot approximately 6 inches from the ground, and count aloud.  In both of these tests the officer is looking for swaying , failure to follow directions, though your to appropriately count, or other deviations ( or “clues”) . A final standard field sobriety test is called the horizontal gaze nystagmus (HGN), where the officer will use an object (commonly a pen) to look for involuntary twitches in your eyes as you follow the pen/object to 45 degrees and back.  If in the officer’s opinion you fail any of these test, or all of them, he will most likely place you under arrest for OVI.

It is important that you hire an attorney who is trained in field sobriety testing to ensure all tests were administered in substantial compliance.  Further, an attorney will work to minimize the impact a conviction will have on your professional and personal life. 

Robert Herking is a former police officer and prosecutor who has experience challenging the field sobriety test and the evidence the State of Ohio will attempt to use against you in an OVI/DUI case.  There are many time limits for motions and other procedural matters that must be satisfied quickly, and for this reason, it is encouraged you contact your DUI/OVI attorney as soon as possible.  

Robert A. Herking

The Herking Law Firm

8595 Beechmont Avenue

Suite LL6

Cincinnati, Ohio 45255

Serving Hamilton, Clermont, Brown, Butler and Warren counties in Ohio. 
 

Jury v. Bench?

Criminal defendants, at least for now, enjoy the opportunity to select whether they want their case heard by a judge, or a jury (however, the Ohio Prosecutors are pushing for them to be the deciding force behind this constitutionally guaranteed right - whether it survives court review is another question). 

For municipal/misdemeanor cases, the default is bench trial (heard by a judge), unless and until the defendant files a request for a jury trial.  For common pleas/felony cases, the default is a jury trial, unless and until the defendant waives his/her right to a jury trial.

Which should you decide?  A careful review by you and your attorney of the facts, defenses, and strategy for the case, will decide.  There are many reasons you may want to pursue a bench trial, and there are many reasons you may want to have a jury decide your case.  I believe the decision will be case specific, so general guidance is inappropriate.  Credibility determinations, complexity of the issues, the state’s evidence, all play a role in this decision.

Either way, it is important that you speak with your attorney early and often to make sure he or she is aware of all issues in your case, and a proper defense strategy can be created.

Robert A. Herking

The Herking Law Firm

(513) 659-8892 

Misdemeanor Convictions and Employment
Do you need an attorney to represent you if you are charged with a Misdemeanor? Yes.

Misdemeanor court is typically referred to as “met ‘em and plead ‘em lawyering” or “assembly line justice,” because some in the criminal justice system do not think they are serious crimes that need much attention or work. However, try getting a job after a misdemeanor conviction. It is currently an “employer’s market,” meaning employer’s can be picky with who they hire, and many are not hiring those with criminal convictions. This includes misdemeanor convictions.

An attorney will review your case and make sure all civil rights were protected during the course of the police department’s investigation, and will ensure you receive the guidance necessary to make an informed decision. Your attorney should sit with you and go over all the facts of your case, and these facts should be reviewed before your first court appearance. Most courts will allow a continuance for several weeks so that the facts of your case, and any defenses you may have, are properly investigated. While many think it is “only a misdemeanor,” a misdemeanor conviction can still have a tremendous impact on your life.

I treat any criminal charge as a serious matter. In the end, not only will your future depend on it, but your continued freedom will also. This is because misdemeanor convictions can and do result in local incarceration.

If you find yourself charged with a crime, call The Herking Law Firm today for a free initial consultation.