omyerslaw

HOUSE BILL 37: THE HARSH NEW SANCTIONS IN OHIO’S NEW OVI LAW

Mon, 17 Mar 2025 19:59:20 GMT

HOUSE BILL 37: The Harsh New Sanctions in Ohio’s New OVI Law

House Bill 37, also known as “Liv's Law,” changes Ohio's OVI laws in a number of significant ways. The new bill presents a minefield of increased penalties and increased obstacles to obtaining even limited driving privileges. You will need an experienced OVI attorney like Olivia Myers to protect your rights, your driving privileges and your livelihood, if you become ensnared with an OVI prosecution, especially in view of the provisions of this new bill.

Aggravated Vehicular Homicide Penalties

The bill establishes a new, tiered-system, based on the number of prior offenses and the nature of the offense, in order to trigger increased minimum mandatory prison terms for aggravated vehicular homicide that is the proximate result of operating a vehicle while

under the influence of alcohol, a drug of abuse, or a combination of them (OVI) offense. (See the OVI Related Aggravated Vehicular Homicide Sentencing Table below).

Further, H.B. 37 increases the possible financial penalties for aggravated vehicular homicide committed, as the proximate result of an OVI offense, by raising the maximum fine to $25,000.00. Default felony financial penalties are found in ORC § 2929.18, which is not part of the bill.

The new bill provides that the Court may warn the convicted motorist that the unlawful termination of another’s pregnancy may result in the person being guilty of Aggravated Vehicular Homicide under ORC § 2903.06. Further, the Court may warn the person of the applicable penalties for the violations under ORC §§ 2903.06 and 2929.142.

Oral Fluid Testing

The bill adds the chemical test of oral fluid for purposes of OVI enforcement. While the chemical tests of oral fluid, under the bill, cannot specify the concentration of a drug of abuse or a metabolite of a drug of abuse, it can detect the presence and type of drug of abuse or its metabolite. Accordingly, the chemical test of oral fluid cannot be used to establish a per se violation of OVI law (i.e., that the accused motorist had a concentration of alcohol, a drug of abuse, or a metabolite of that drug that was above the legal limit). See ORC §§ 3701.143; 4511.19(D). However, the chemical tests of oral fluid can be used as evidence that the accused motorist operated a vehicle while “under the influence of alcohol, a drug of abuse, or a combination of them.”

The Oral Fluid Testing procedure is subject to the same implied consent is given for the current collection and testing of breath, urine, whole blood, blood serum, and plasma. Further, the penalties for refusal and the imposition of costs for the testing are the same as the current requirements for the testing of breath, urine, whole blood, blood serum, and plasma. See ORC §§ 4511.19(G)(8); 4511.191 and 4511.192.

H. B. 37 also adds conforming changes to the law governing OVI while operating a watercraft or a commercial motor vehicle and governing the release of drug test records in criminal cases. See ORC §§ 1547.11; 1547.111; 2317.02; 2317.022 and 4506.17.

Limited Driving Privileges and Ignition Interlock Devices

The bill increases the instances when an OVI offender must agree to use of an ignition interlock device in order to be granted limited driving privileges, both for in-state and out-of-state offenses. See ORC §§ 4510.13; 4510.17.

A physical control conviction can be used to enhance the length of ALS. A “physical control offense” is described as when the accused is in the driver’s seat position, in possession of the ignition key or other ignition device, while under the influence of alcohol, a drug of abuse or a combination of them. While the accused is not operating the vehicle at the time of the arrest, the accused is in a position to do so at the time of the arrest. (See ORC § 4511.194, not in the bill).

In a first offense OVI/physical control case with a test over and prior physical control conviction, the hard time suspension is enhanced to 45 days and interlock is mandatory.

In one of the only concessions to an accused motorist, the Court may waive the 15-day hard suspension for an alleged first offender who did not refuse the chemical testing at the time of the arrest for suspected OVI. However, even the granting of limited driving privileges is likely to require the installation of an ignition interlock device on the motor vehicle.

Financial penalties

The bill increases the overall minimum financial penalties for an offender who operates a vehicle while under the influence by $30. The bill does so by increasing the minimum criminal fines for OVI by $190 and lowering the related reinstatement fee for a driver’s license suspension associated with the OVI by $160. To account for these changes in financial penalties, the bill adjusts the distributions of revenue derived from reinstatement fees and criminal fines.

Quesitons? Want a free consultation? Contact Attorney Olivia Myers at (330) 612-7442.

Blog Post by Olivia Myers on 3.17.2024

The Risks of Refusal – The Consequences of Refusing to Take the Breath Test

Thu, 06 Feb 2025 18:20:58 GMT

The Risks of Refusal – The Consequences of Refusing to Take the Breath Test

Attorney Olivia Myers in her office in downtown Akron

The Risks of Refusal – The Consequences of Refusing to Take the Breath Test

If you are lawfully accused of operating a motor vehicle while under the influence of alcohol, you have no constitutional right to refuse to take a reasonably reliable chemical test. Schmerber v. California (1966), 384 U.S. 757, 771. Although R.C. 4511.191 requires that one who has been arrested for the offense of operating a motor vehicle while under the influence of alcohol be advised of the consequences of his refusal to submit to chemical testing, and R.C. 4511.193 sets forth certain requirements for the immediate suspension and seizure of an operator's license or permit, these rights and requirements are statutory and have been held to not be of constitutional dimension.

Proceedings taken pursuant to R.C. 4511.191 are civil and administrative in nature and are independent of any collateral criminal proceedings instituted pursuant to R.C. 4511.19. Hoban v. Rice (1971), 25 Ohio St.2d 111, 267 N.E.2d 311. And while the failure to properly inform a defendant of the consequences of a refusal to submit to testing [1] may very well preclude the suspension of his license under R.C. 4511.191 and R.C. 4511.193, there is no provision in R.C. 4511.19 that requires compliance with implied consent procedures as a condition of the admissibility of chemical test results in DUI prosecutions.

Accordingly, Ohio Courts have held that the consequences of refusing and/or submitting to chemical testing does not require the exclusion of the chemical test results in the criminal prosecution brought pursuant to R.C. 4511.19 and, therefore, suppression of the test results is not a proper remedy. See State v. Tramonte, 1993 Ohio App. LEXIS 4090, *6-7, 1993 WL 323635 (6 ^th Dist.).

And the news does not improve if you have had prior arrests for DUI. The statute mandates that individuals who have been previously convicted of driving under the influence in the past twenty years cannot (1) operate a vehicle under the influence of alcohol, and (2) refuse to take a chemical test after being arrested and asked by law enforcement to submit to a chemical test after being advised of the consequences of refusal in accordance with section 4511.192 of the Revised Code. See R.C. 4511.19(A)(2).

R.C. 4511.192(A) provides that a person "must submit to the chemical test or tests, subsequent to the request of the arresting officer, within two hours of the time of the alleged violation;" however, this statute has been construed against the accused driver and has not provided a method of arguing that the refusal is invalid or inadmissible. [2]

The moral of this story is that if you have been pulled over for an alleged traffic violation, refusing to take the breath test is fraught with bad consequences. It does not mean that you cannot fight the charge. The initial stop and detention can be challenged. The administration of field sobriety tests and the administration of the breath test can be challenged, but you need an experienced criminal defense attorney, like Olivia Myers to mount a strong and substantial defense to the charges.

REFERENCES
[1] In their entirety, the warnings to be read to suspects from BMV form 2255 are as follows:

CONSEQUENCES OF TEST AND REFUSAL (R.C. 4511.192) (MUST BE READ TO OVI/PHYSICAL CONTROL OFFENDER)

"You now are under arrest for (specifically state the offense under state law or a substantially equivalent municipal ordinance for which the person was arrested) operating a vehicle under the influence of alcohol, a drug, or combination of them; operating a vehicle while under the influence of a listed controlled substance or a listed metabolite of a controlled substance; operating a vehicle after underage alcohol consumption; or having physical control of a vehicle while under the influence.[sic] "If you refuse to take any chemical test required by law, your Ohio driving privileges will be suspended immediately, and you will have [**5] to pay a fee to have the privileges reinstated/If you have a commercial driver license and refuse to submit to the test or tests you will immediately be placed out-of-service for twenty-four hours; you will be disqualified from operating a commercial motor vehicle for a period of not less than one year; and you will be required to surrender your commercial driver license to me."

"If you have a prior conviction of OVI, OVUAC, or operating a vehicle while under the influence of a listed controlled substance or a listed metabolite of a controlled substance under state or municipal law within the preceding twenty years, you now are under arrest for state OVI, and if you refuse to take a chemical test, you will face increased penalties if you subsequently are convicted of the state OVI."

"If you have previously pled guilty or been convicted of two or more OVI'S [sic], OVUAC's, or equivalent offenses in the previous six years, or pled guilty or been convicted of five or more OVI'S [sic], OVUAC's, or equivalent offenses in the previous twenty years, or pled guilty or been convicted of a felony of any of the above violations, and you refuse to submit to a chemical test required by law, I am [**6] authorized to use whatever reasonable means are necessary to ensure that you submit to a chemical test." (Read this part unless the person is under arrest for solely having physical control of a vehicle while under the influence.) "If you take any chemical test required by law and are found to be at or over the prohibited amount of alcohol, a controlled substance, or a metabolite of a controlled substance in your whole blood, blood serum or plasma, breath, or urine as set by law, your Ohio driving privileges will be suspended immediately, and you will have to pay a fee to have the privileges reinstated. [sic]

"If you take a chemical test, you may have an independent chemical test taken at your own expense."

CONSEQUENCES OF TEST AND REFUSAL — OUT-OF- SERVICE (R.C. 4506.17) (MUST BE READ IN ADDITION TO THE ABOVE TO AN OFFENDER WHO IS THE HOLDER OF A COMMERCIAL DRIVER LICENSE OR IS DRIVING A COMMERCIAL VEHICLE)

"I am a law enforcement officer; I have probable cause to stop or detain you. After investigating the circumstances, I have probable cause to believe you were operating a motor vehicle in violation of section 4506.15 of the Ohio Revised Code. I request that you submit to a test or tests of your blood, breath, or urine for the purpose [**7] of determining your alcohol concentration or the presence of any controlled substance. If you refuse to submit to the test or tests you will immediately be placed out- of-service for twenty-four hours; you will be disqualified from operating a commercial motor vehicle for a period of not less than one year; and you will be required to surrender your commercial driver license to me."

State v. Wielinski, 2019-Ohio-677, P6, 2019 Ohio App. LEXIS 729, *4-7, 2019 WL 952043

[2] Ohio Courts have held the following: Thus, the purpose of the two-hour requirement is to deter the obstinate driver, one who engages in behavior to "delay or obstruct the chemical testing" so as to run out the three-hour clock and prevent the results of the test from being admitted into evidence. State v. Brabant, 12th Dist. Clermont No. CA2010-04-031, 2011-Ohio-161, ¶ 16. If a refusal must occur within the two-hour window to be valid, the accused [***9] could easily circumvent the law by the passage of time. In addition to the plain language of the statute, it is well established that the two-hour time period "is irrelevant * * * where appellant explicitly refused to take the breath test." (Emphasis sic). Id. at ¶ 15. If refusal is relevant, then it does not matter if appellant refuses before or after the statutory two-hour period. State v. Barnhart, 6th Dist. Huron No. H-10-005, 2011-Ohio-2693, ¶ 17; State v. Marsh, 7th Dist. Belmont No. 04 BE 18, 2005-Ohio-4690, ¶ 46 (finding it "wholly irrelevant" when the officers asked appellant to submit to the tests). The Ohio Supreme Court has also found that "a person arrested for operating a vehicle under the influence of alcohol who refuses to submit to a chemical test, even though the test is requested more than two hours after the alleged violation, is subject to the implied consent law * * * ." Cline v. Bureau of Motor Vehicles, 61 Ohio St. 3d 93, 99, 573 N.E.2d 77 (1991). State v. Keith, 2022-Ohio-3515, P15-P18, 197 N.E.3d 1023, 1027-1028, 2022 Ohio App. LEXIS 3325, *6-9, 2022 WL 4666154.

Blog by Attorney Olivia A. Myers, published February 6, 2025

Felony Sentencing – Just Punishment, Sentencing Disparities and Equal Protection under the Law

Wed, 22 Jan 2025 17:37:57 GMT

Felony Sentencing – Just Punishment, Sentencing Disparities and Equal Protection under the Law

“The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others, to punish the offender, and to promote the effective rehabilitation of the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.” See
ORC 2929.11 (A).

The trial court considers a number of factors in deciding the severity of a given sentence, including: (1) The physical or mental injury suffered by the victim of the offense due to the conduct of the offender was exacerbated because of the physical or mental condition or age of the victim;

(2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense; (3) The offender held a public office or position of trust in the community, and the offense related to that office or position; (4) The offender’s occupation, elected office, or profession obliged the offender to prevent the offense or bring others committing it to justice; (5) The offender’s professional reputation or occupation, elected office, or profession was used to facilitate the offense or is likely to influence the future conduct of others; (6) The offender’s relationship with the victim facilitated the offense; (7) The offender committed the offense for hire or as a part of an organized criminal activity; (8) In committing the offense, the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion; (9) If the offense is a violation of section 2919.25 or a violation of section 2903.11, 2903.12, or 2903.13 of the Revised Code involving a person who was a family or household member at the time of the violation, the offender committed the offense in the vicinity of one or more children who are not victims of the offense, and the offender or the victim of the offense is a parent, guardian, custodian, or person in loco parentis of one or more of those children. See ORC 2929.12(B).

"It is well-established that the Equal Protection Clauses of both the Ohio and United States Constitutions protect 'similarly situated' persons from being treated differently by the government." [Murphy at ¶ 8, citing State ex rel. Riter]. "[I]t is a basic and generally applicable principle of Fourteenth Amendment equal protection analysis that a party claiming an equal protection violation has the burden of proving purposeful discrimination." [1] "A corollary to this principle is that a criminal defendant must prove that the purposeful discrimination 'had a discriminatory effect' on him." [2]

Federal law provides, Under 18 U.S.C. § 3553(a), the district court is required to impose a sentence that is "sufficient, but not greater than necessary to comply with the purposes" of sentencing, including "reflect[ing] the seriousness of the offense, [ ] promot[ing] respect for the law, . . . provid[ing] just punishment[,]" deterring criminal conduct, and protecting the public. One of the key factors courts must consider is "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct[.]" 18 U.S.C. § 3553(a)(6). However, this provision concerns national disparities between similarly situated defendants, not disparities among co-defendants. See United States v. Conatser, 514 F.3d 508, 521 (6th Cir. 2008); United States v. Richardson, 2024 U.S. App. LEXIS 29428, *8, 2024 FED App. 0457N (6th Cir.)

Against this backdrop of stated purposes of sentencing and the factors to be considered, there have been an increase in charges arising from the sale of heroin laced with fentanyl, in which the victim suffers a fatal overdose resulting in charges of involuntary manslaughter against the drug dealer. These charges of involuntary manslaughter have brought a wide disparity of sentences in Ohio. Some offenders have received sentences ranging from five to nine years." See State v. Alspaugh, 12th Dist. Preble No. CA2017-09-011, 2018-Ohio-801, ¶ 2, 5 (the defendant "provided a lethal dose of heroin to the victim, * * * causing her to overdose and die," pleaded guilty to involuntary manslaughter and aggravated trafficking, and was sentenced to an aggregate five-year prison term); State v. Theodorou, 8th Dist. Cuyahoga No. 105630, 2017-Ohio-9171, ¶ 2-4 (defendant, who "sold heroin laced with fentanyl to his friend * * *, who subsequently died from an overdose," pleaded guilty to involuntary manslaughter, corrupting another with drugs, trafficking, drug possession, and possessing criminal tools, and was sentenced to a five-year prison term) ³ ; State v. Veley, 6th Dist. Lucas No. L-16-1038, 2017-Ohio-9064, ¶ 2, 18 (trial court sentenced the defendant to five years for involuntary manslaughter after evidence at trial revealed that the defendant sold the minor victim heroin laced with fentany ^l ); State v. Walker, 8th Dist. Cuyahoga No. 102960, 2016-Ohio-395, ¶ 1 (trial court ordered that the defendant's three-year prison term for involuntary manslaughter be served consecutive to his two-year prison term for his conviction for attempted corruption of another with drugs, giving the defendant an aggregate prison term of five years.).

Other offenders have received far more lengthy sentences: State v. Potee, 12th Dist. Clermont No. CA2016-06-045, 2017-Ohio-2926, 90 N.E.3d 58, ¶ 13 (defendant found guilty of involuntary manslaughter, two counts of corrupting another with drugs, and trafficking — sentenced to prison for 15 and one-half years); State v. Montanez-Roldon, 8th Dist. Cuyahoga No. 103509, 2016-Ohio-3062, ¶ 9 (defendant was sentenced to ten years after "providing the victim with tainted drugs leading to the victim's death"); State v. Zusman, 11th Dist. Lake No. 2014-L-087, 2015-Ohio-3218, ¶ 1, 3 (defendant found guilty of involuntary manslaughter, corrupting another with drugs, trafficking, tampering with evidence, and possessing criminal tools — sentenced to 12 and one-half years in prison). State v. Terrell, 2018-Ohio-5353, P13-P14, 2018 Ohio App. LEXIS 5677, *5-7

This vast disparity of sentences requires an analysis of the criminal history of the offender and the sentencing factors discussed above. The work regarding the determination of a felony sentence has to be done, in large part, before the trial court, as the appeal of felony sentences has become limited and restricted by statutory enactments and decisional law. As Justice Brunner Concurring in State v. Toles wrote: “in Jones we simply observed that R.C. 2953.08, as amended, precludes second-guessing a sentence imposed by a trial court based on its weighing of the considerations in R.C. 2929.11 and 2929.12. See also State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952, ¶ 15-22 (R.C. 2953.08 is not the only basis for appealing a sentence and it does not preclude an appeal of a sentence on constitutional grounds); Jones at ¶ 48-49 (Fischer, J., concurring) (an appellate court may review the trial court's findings under R.C. 2929.11 and 2929.12 for "certain limited purposes," including whether the sentence was "based on an offender's 'race, ethnic background, gender, or religion' "); R.C. 2953.08(F) (requiring an appellate court to review essentially the entire trial-court record in evaluating the legality of a sentence).” State v. Toles, 166 Ohio St. 3d 397, 401, 2021-Ohio-3531, P10, 186 N.E.3d 784, 787, 2021 Ohio LEXIS 1961, *8-9, 2021 WL 4516062 .

The restrictions to appellate review were expressed by Justice Donnelly in his Dissenting Opinion in Toles: I thought Jones was "the final nail in the coffin, the death knell for meaningful appellate review" of criminal felony sentencing. Id. at ¶ 50 (Donnelly, J., dissenting). It turns out I was wrong, for the majority appears to have set aside a few more nails for today's case. The issue here was whether R.C. 2953.08(G)(2) allows appellate courts to review specific sentencing findings made by the trial court under R.C. 2929.11 and 2929.12 when those findings are allegedly not supported by the record. By summarily affirming the court of appeals' judgment and effectively answering that question in the negative, the majority has foreclosed any possibility for a criminal defendant to obtain appellate review of mistaken, if not malicious, sentencing errors, leaving trial courts wholly free to impose sentences without any constraints whatsoever.” State v. Toles, 166 Ohio St. 3d 397, 404, 2021-Ohio-3531, P20, 186 N.E.3d 784, 789, 2021 Ohio LEXIS 1961, *14, 2021 WL 4516062

So, if your charged with a felony, you will need to mount a strong defense before the trial court, as the appellate review of your sentence will be limited.

[1] State v. Keene, 81 Ohio St.3d 646, 654, 1998- Ohio 342, 693 N.E.2d 246 (1998), citing McCleskey v. Kemp, 481 U.S. 279, 292, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), quoting Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 17 L. Ed. 2d 599 (1967).

[2] McCleskey at 292, quoting Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L. Ed. 2d 547 (1985); State v. Ramey, 2021-Ohio-1522, P25, 2021 Ohio App. LEXIS 1490, *17.

Blog by Olivia Myers Jnauary 22, 2025

A Death in the Family or Involuntary Manslaughter?

Tue, 17 Dec 2024 17:57:00 GMT

A Death in the Family or Involuntary Manslaughter?

How does the law deal with the often traumatic, difficult and gut-wrenching issues presented by the end-of-life issues, when an aging infirm relative, who has been independent for his entire life, refuses medical care, refuses medical advice and lives in squalor of his own choosing?

Law is comprised of mechanical and draconian rules, which often require (or appear to require) that someone be deemed responsible or liable for the ugly and unsavory events in society. Law labels the caregiver, the Defendant, and prosecutes the caregiver for events, which the aging infirm relative had chosen for himself at the end of his life. Law seeks a scapegoat, so it can take solace that someone had to “pay” for such an unpleasant and ugly death, even though the caregiver did not have the legal responsibility or authority to force the aging infirm relative to go to the hospital or otherwise seek medical care.

In a recent case, I was presented with the collision of end-of-life issues for an individual, whose only caregiver [1] was later charged with a criminal offense, involuntary manslaughter, for allegedly recklessly causing the death of the infirm relative. The charge was later reduced to reckless homicide.

In that case, I argued that a person has a right to refuse care. ^[2] That the caregiver did assist him and consistently asked him if he needed to go to the doctor or hospital and he refused. The aging relative retained his right to self-determination, which at the end of his life, involved tragic and disconcerting decisions and outcomes.

There is little legal guidance regarding the treatment to be afforded to elderly individuals. Most of the statutory enactments address the duties of nursing home personnel to care for the elderly. For example, for purposes of the Protection and Advocacy for Mentally Ill Individuals Act, 42 U.S.C.S. § 10801 et seq., abuse is defined as any act or failure to act by an employee or facility rendering care to an individual with mental illness that was performed or failed to be performed intentionally, knowingly or recklessly, and which caused or may have caused the injury or death of the individual 42 C.F.R. § 51.2. Abuse specifically includes sexual assault, striking the individual, using excessive force when placing the individual in bodily restraints, using bodily or chemical restraints that are not in compliance with federal and state laws or regulations; verbal, nonverbal, mental and emotional harassment, and any other practice likely to cause immediate physical or psychological harm or result in long-term harm if such practices continue. Neglect refers to a negligent act or omission by an individual responsible for providing services in a facility rendering care or treatment which caused or may have caused injury or death to an individual with mental illness or which placed an individual with mental illness at risk of injury or death. ^[3] It was clear from the evidence that the caregiver that did not engage in any such conduct with his aging relative.

The Supreme Court of New Jersey addressed the issue of the right of an individual to refuse treatment, writing the following thoughtful analysis: “Recognizing the right of a terminally ill person to reject medical treatment respects that person's intent, not to die, but to suspend medical intervention at a point consonant with the "individual's view respecting a personally preferred manner of concluding life." Note, "The Tragic Choice: Termination of Care for Patients in a Permanent Vegetative State," 51 N.Y.U.L.Rev. 285, 310 (1976). The difference is between self-infliction or self-destruction and self-determination. See Byrn, "Compulsory Lifesaving Treatment for the Competent Adult," 44 Fordham L. Rev. 1, 16-23 (1975). To the extent that our decision in John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 581-82 (1971), implies the contrary, we now overrule it. The third state interest that is frequently asserted as a limitation on a competent patient's right to refuse medical treatment is the interest in safeguarding the integrity of the medical profession. This interest, like the interest in preventing suicide, is not particularly threatened by permitting competent patients to refuse life-sustaining medical treatment. Medical ethics do not require medical intervention in disease at all costs. As long ago as 1624, Francis Bacon wrote, "I esteem it the office of a physician not only to restore health, but to mitigate pain and dolours; and not only when such mitigation may conduce to recovery, but when it may serve to make a fair and easy passage." F. Bacon, New Atlantis, quoted in Mannes, "Euthanasia vs. The Right to Life," 27 Baylor L. Rev. 68, 69 (1975).”

“More recently, we wrote in Quinlan, supra, 70 N.J. at 47, that modern-day "physicians distinguish between curing the ill and comforting and easing the dying; that they refuse to treat the curable as if they were dying or ought to die, and that they have sometimes refused to treat the hopeless and dying as if they were curable." Indeed, recent surveys have suggested that a majority of practicing doctors now approve of passive euthanasia and believe that it is being practiced by members of the profession. See sources cited in Storar, supra, 52 N.Y.2d at 385-386 n. 3, 420 N.E.2d at 75-76 n. 3, 438 N.Y.S.2d at 277-78 n. 3 (Jones, J., dissenting), and in Collester,"Death, Dying and the Law: A Prosecutorial View of the Quinlan Case," 30 Rutgers L. Rev. 304, n. 3, 312 & n. 27.” In re Conroy, 98 N.J. 321, 351-352, 486 A.2d 1209, 1224-1225, 1985 N.J. LEXIS 2221, *32-34, 48 A.L.R.4th 1

The Conroy Court continued with its analysis:
On balance, the right to self-determination ordinarily outweighs any countervailing state interests, and competent persons generally are permitted to refuse medical treatment, even at the risk of death. Most of the cases that have held otherwise, unless they involved the interest in protecting innocent third parties, have concerned the patient's competency to [*354] make a rational and considered choice of treatment. See Annot., 93 A.L.R.3d 67, at 80-85 (1979) ("Patient's Right to Refuse Treatment Allegedly Necessary to Sustain Life"). For example, in Heston, supra, 58 N.J. 576, this Court approved a blood transfusion to save the life of a twenty-two-year-old Jehovah's Witness who had been severely injured and was rushed to the hospital for treatment, despite the fact that a tenet of her faith forbade blood transfusions. The evidence indicated that she was in shock on admittance to the hospital and was then or soon became disoriented and incoherent. Part of the Court's rationale was that hospitals, upon which patients' care is thrust, "exist to aid the sick and the injured," id. 58 N.J. at 582, and that it is difficult for them to assess a patient's intent in an emergency and to determine whether a desire to refuse treatment is firmly and competently held, id. 58 N.J. at 581, 582. Similarly, courts in other states have authorized blood transfusions over the objections of Jehovah's Witnesses when the patient's opposition to the treatment was expressed in equivocal terms. Compare Georgetown College, supra, 331 F.2d at 1006-07 (authorizing transfusion to save life of patient who said that for religious reasons she would not consent to the transfusion, but who seemed to indicate that she would not oppose the transfusion if court ordered it since it would not then be her responsibility), and United States v. George, 239 F.Supp. 752, 753 (D.Conn.1965) (transfusion was authorized [***38] for patient who told court that he would not agree to the transfusion, but volunteered that if the court ordered it he would not resist in any way since it would be the court's will and not his), with In re Osborne, 294 A.2d 372, 374, 375 (D.C.1972) (stating that guardian should not be appointed to consent to transfusion on behalf of man who told court that he would be deprived of "everlasting life" if compelled by a court to submit to the transfusion, and who explained, "it is between me and Jehovah; not the courts. . . . I'm willing to take my chances. My faith is that strong.").
In re Conroy, 98 N.J. 321, 353-354, 486 A.2d 1209, 1225-1226, 1985 N.J. LEXIS 2221, *36-38, 48 A.L.R.4th 1 (Emphasis added.).

The caregiver understood that the appearance of the house was deplorable, but people have a right to live in squalor. If the person is awake and refusing healthcare, the caregiver was not responsible to force medical treatment upon the aging relative.

Nursing homes get sued all the times by family allege neglect, what do they do, they document person refused care to cover themselves.

In the case I had, the caregiver called 911 when he found the aging relative unresponsive and that was his only responsibility in that situation. The caregiver understood that the photographs of the aging relative’s apartment showed an ugly unseemly environment; and that the aging relative had developed bedsores/wounds prior to his death.

The harsh reality is that people die with wounds every day. Nurses in nursing homes see this every day. Moreover, wounds can stage quickly once they start. If people refuse care, that is what happens. This does not mean the caregiver becomes criminally responsible for the events which transpired.

The Conroy Court found that: “On balance, the right to self-determination ordinarily outweighs any countervailing state interests, and competent persons generally are permitted to refuse medical treatment, even at the risk of death.” ^[4] This case involved these issues. The caregiver was distraught regarding the events which transpired. He did receive a probationary type sentence from the Court, which understood the tragic and difficult issues presented by this case.
[1] A nephew, who was not the Medical or Healthcare Power of Attorney for the aging relative. [2] See In re Conroy, 98 N.J. 321, 351-352, 486 A.2d 1209, 1224-1225, 1985 N.J. LEXIS 2221, *32-34, 48 A.L.R.4th 1. [3] Advocacy Inc. v. Tarrant County Hosp. Dist., 2001 U.S. Dist. LEXIS 16676, *1, 2001 WL 1297688 (N.D. Texas, Fort Worth Division) [4] In re Conroy, 98 N.J. 321, 353-354, 486 A.2d 1209, 1225-1226, 1985 N.J. LEXIS 2221, *36-38, 48 A.L.R.4th 1

2024 Recipient of the NSME Achievements in Excellence Award

Wed, 28 Feb 2024 19:23:00 GMT

The Night of February 27, 2024 was a Night to Remember. A Song was made to last Forever.

Attorney Olivia Myers receives her award from her friend and mentor, Attorney Charles Olminsky.

52nd Accent on Excellence Event™ The annual National Sales & Marketing Executives™ (NSME™) “Accent on Excellence Event™” awards program in the Northeast Ohio region recognizes the Executive of the Year, the Outstanding Community Leader, multiple “Achievements in Excellence Award™” recipients, and the Exceptional Sales & Marketing Collegiate Award Recipient.
These honorees have demonstrated the highest levels of professionalism during their careers in diverse sales and marketing roles. NSME™ leaders select winners based on nominations from local professionals, questionnaire responses from the nominees, and publicly available information. Criteria include community and civic involvement, professional experience, and demonstrated performance.
NSME™ has held an annual awards gala to honor the "best of the best" sales and marketing professionals since 1972. This popular event is well-known and respected among regional businesses and non-profit and higher-education organizations.
Above text from NSME's website.

Ace Epps, another award recipient with JP Morgan Chase, created a rap song to congratulate Attorney Myers!
Listen to it here:

*Permission to post song obtained by Ace Epps on 2.28.2024

Client Found Not Guilty on Felony Charge

Wed, 10 Jan 2024 14:24:00 GMT

ON JANUARY 9, 2024, A SUMMIT COUNTY JURY FOUND ATTORNEY MYERS' CLIENT NOT GUILTY AS TO A FELONY ANIMAL CRUELTY CHARGE

Over a year ago, in November of 2022, Attorney Olivia Myers' client took his very sick puppy in to One of A Kind Pet Rescue in Akron, OH and begged them to treat his puppy. The Humane Society of Summit County thereafter investigated and charged the client with two counts of felony animal cruelty.

The State alleged that Attorney Myers' client 1 ) caused serious physical harm to the puppy and 2) deprived the puppy of necessary sustenance and it was reasonably expected that the puppy would die or experience unnecessary or unjustifiable pain as a result of the deprivation.

Prior to trial, Attorney Myers pointed out that the law had since changed since her client was indicted to make Count 2 of the indictment, alleging that her client deprived the puppy of necessary sustenance, a misdemeanor. The State agreed and amended Count 2 to a misdemeanor prior to trial.

Attorney Myers presented two witnesses at trial, one of which was her client's best friend, an Akron Police officer. Each witness explained to the jury that they personally observed the client provide love, care, support, food, water and necessities to the puppy. In addition, the witnesses explained that they noticed there may have been something physically wrong with the puppy as soon as the client took it in due to its physical appearance.

At the end of the trial, the jury found the client not guilty on the felony count but guilty on the misdemeanor. The client intends to appeal the conviction of the misdemeanor due to several errors made during the course of the trial and to maintain his innocence.

Restoring Your Gun Rights

Sun, 04 Dec 2022 12:59:00 GMT

APPLYING FOR RELIEF FROM DISABILITY UNDER OHIO REVISED CODE SECTION 2923.14

What is a "disability"?

In Ohio, there are several criminal convictions that prohibit an individual from acquiring, having, or using a firearm under Ohio and Federal Law. This is referred to a "disability".

The criminal convictions that place an individual under a disability include:

- Felony offenses of violence

- Felony drug offenses

- Felony sex offenses

- Misdemeanor domestic violence

In addition, if an individual is adjudicated mentally incompetent, or if they are drug/alcohol dependent, they are under disability.

How to apply for relief

The applicant must file a civil complaint in the court where the conviction resulted, asking the court to grant Relief from Disability under ORC 2923.14. The applicant has the burden of demonstrating, among other things, that he or she has led a law abiding life since discharge or release, and appears likely to continue to do so, and that he or she is not otherwise prohibited by law from acquiring, having, or using firearms.

Am I eligible to apply for relief?

Attorney Olivia Myers has been successful in restoring the gun rights for her clients. Contact her at (330) 612-7442 to inquire as to whether you are eligible to restore your gun rights.;

Why Your Attorney Should File a Motion to Suppress In Your DUI Case

Sat, 12 Nov 2022 17:16:00 GMT

Why Your Attorney Should Be Filing A Motion to Suppress In Your DUI Case

A Motion to Suppress is critical to Defending almost every DUI case.

What is a Motion to Suppress? A Motion to Suppress argues that the police did something wrong, and as a result, all evidence that flows, or results from that wrongdoing, should be suppressed. Suppressed means ELIMINATED. For example, if the police had no probable cause and/or a reasonable suspicion of criminal activity to stop you, then all evidence that results from that stop must be suppressed under the Fourth and Fourteenth Amendments to the United States Constitution and Article 1, Section 14 of the Ohio Constitution. This could include results of field sobriety tests, observations and opinions of the police officer regarding the person's sobriety and/or alcohol and/or drug level, and results of a blood breath or urine test.

Why is a Motion to Suppress critical in a DUI case? DUI cases typically involve a traffic stop and/or detention by a police officer, which can amount to a seizure for Fourth Amendment purposes. The officer first has to have cause to stop you, then he has to have cause to extend the traffic stop in order to investigate for DUI. When investigating for DUI, the officer will ask you to submit to Field Sobriety Tests. **Remember, you have the right to DECLINE these. However, if you do submit to the tests, the officer must follow standardized procedures in administering the tests.

There are three Standardized Field Sobriety Tests ("SFSTs"): The Horizontal Gaze Nystagmus test ("HGN"), the Walk and Turn test ("WAT"), and the One Leg Stand test ("OLS"). If the officer failed to follow the standardized procedures when administering the SFSTs, an attorney can argue that in a Motion to Suppress and ask that the results of said tests be suppressed.

If you submitted to a blood, breath, or urine test, your attorney can argue in the Motion to Suppress that the statutory administrative procedures were not properly followed and ask that the test be suppressed as a result.

It is important to hire an attorney who has the specialized knowledge of arguing Motions to Suppress in DUI cases. Attorney Olivia Myers spends hundreds of dollars each year to educate herself on the most recent laws and practices regarding DUI cases so that she can evaluate each case and argue it to the best of her ability. Contact Attorney Olivia Myers for a free consultation today. (330) 612-7442.

About O. Myers Law

Mon, 17 Oct 2022 17:50:00 GMT

About O. Myers Law

Who We Are

Founded in 2019, O. Myers Law is an independent practice established by

Attorney Olivia Myers. Born and raised in Akron, Ohio, our law firm resides

in the heart of Akron in Downtown Akron. Attorney Olivia Myers is

committed to providing above average representation, maintaining clear

communication, and doing so with compassion and professionalism. She

makes it her mission to make her clients’ business her own. O. Myers Law

maintains an exceptional ranking on Google from the help of satisfied

clients who leave her five star reviews.

What We Do

O. Myers Law handles an array of cases. Attorney Olivia Myers practices in

Criminal Defense, DUI/OVI, and Juvenile Law/Family Law. She handles these

cases with a sense of professionalism, urgency, and empathy. She will take

the time to get to know you- who you are, what your fears are, and what

your goals are so she can craft a strategy for your case. Attorney Olivia

Myers is not the attorney who is going to plead your case out just to get it

of her desk. She is a trial lawyer and will fight tooth and nail from the

beginning of the case until the end of trial.

Our Core Values

O. Myers Law success stems from a set of core values:

Excellence: We give it our best every day. While skill and knowledge are

important, passion is the key. Each case is treated with passion.

Respect: We treat clients and colleagues with professionalism and respect.

We make it a goal to leave every interaction with a positive impact.

Innovative: In an ever-changing world, O. Myers Law is constantly coming

up with new ideas to better represent our practice and clients.

Communication: We make it a goal to respond to the questions and

concerns of our clients quickly. Responding to our clients in a timely

manner is just one way we like to show how much we care.

Performance: While we put forth our best effort every day, we take pride

in the results. In order to receive satisfying results, we set attainable goals

and make it our mission to go above and beyond in the process.

Why Us?

Attorney Olivia Myers makes it her mission to win her cases. She acts fast,

communicates with clients every step of the way, and demonstrates

compassion for the struggles that her clients endure. Call Attorney Olivia

Myers for a free consultation today! (330) 612-7442.

Why it is Important to Retain Counsel for Post Release Control AKA Parole Hearings

Tue, 05 Oct 2021 13:36:00 GMT

Most criminal defense attorneys will tell you they do not take on post-release control (formally known as parole) hearings.

They think that these hearings are straight losers. I will be honest, I thought the same, UNTIL I stepped into the world of Adult Parole Authority, and found that these cases can be fought and negotiated just like any other case.

Here is why: Offender A is sentenced to 6 years in prison. He serves 5 years and is released on post-release control. Two months later, he catches a new charge and is therefore alleged to be in violation of his parole.

What sucks is that Offender A could be found in violation of his post-release control EVEN IF he is not yet guilty of his new charge. Why? Because people on post-release control have limited rights. The standard for post release control hearings is not beyond a reasonable doubt, it is preponderance of the evidence; meaning it is more likely than not that you committed the offense, AKA the violation.

Also important to understand is that anything said in your post-release control violation hearing is fair game for trial in the new offense. Therefore, if you make a statement and admit to the violation, that information can be used against you in your criminal trial.

So, what does one do when alleged to have violated post-release control? DENY DENY DENY, and hire an attorney who will negotiate with the Adult Parole Authority on your behalf. The APA is a whole new world of criminal law, and it is important to have an attorney represent you who understands it.

Today, I negotiated with the APA to get my client almost half of the prison time that APA had recommended. We also protected his interests so that nothing in his APA case will be admissible as evidence of guilt in his new criminal case. He is presumed innocent until proven guilty in his new criminal case, regardless of what happened with APA, AND the time he is serving for the APA violation will ultimately count towards any time he receives in his new criminal charge. I say that is a win-win for him despite the circumstances.

For the above reasons, I stress that it is so important to hire counsel for post-release control violation hearings. Contact O Myers Law LLC, and I will fiercely represent you in these hearings.

Why now is the time to expunge your criminal record

Tue, 14 Apr 2020 21:55:00 GMT

Why now is the time to expunge your criminal record

The coronavirus (COVID-19) pandemic may benefit people seeking to expunge their criminal record.

While we sit at home, waiting out the governor’s orders, we are forced to think, “What can I do now to better myself and my life?.” Some good can always come out of the bad.

Something all individuals with a criminal record should consider now is expungement. Why is this a good time? THE COURTS ARE SLOW. IN PERSON HEARINGS ARE SCARCELY BEING HELD. HENCE, THE COURT HAS TIME TO REVIEW AND QUICKLY APPROVE YOUR APPLICATION FOR EXPUNGEMENT.

The expungement process usually takes six months or longer. This is because in most cases expungement applications must be reviewed by probation before they even go to the judge. As we attorneys know, anything that goes to probation takes forever. Think about all the people who get probation instead of jail/prison and the insane caseload that probation officer have. Not to mention, expungements are not probation’s priority. Once probation reviews, the applicant must then go before the Judge, who decides whether to grant the expungement.

However, now court dockets are now freed up. Non-emergency hearings such as pre-trials and trials for defendants not in custody are being continued. Probation has also slowed down. People are not required to report in person. Therefore, the judge and probation has more time for paperwork.

Let’s take a recent client of mine as an example. He had over six criminal cases in Barberton Municipal Court. We sent in the necessary motions and paperwork to expunge his criminal record in early January. We were told that we would not hear from the court for at least six months. The application had to go to probation before they could schedule a date. In late February, we were notified that the expungement had been granted. We did not even have to go in front of the judge.

So, while we are bored out of our minds, take the time to think if you or someone you know has a criminal record that needs expunged. The law has recently changed to allow for more expungements, and now is the time to do it!

Contact Attorney Olivia Myers at (330) 612-7442 for a free legal consultation to determine if you are eligible to expunge your criminal record.

Coronavirus and the courts

Fri, 13 Mar 2020 21:59:00 GMT

Coronavirus and the courts

Last night, I was notified that in the Summit County, all trials are suspended for 14 days and all arraignments for felony defendants not in custody will be postponed indefinitely.

If attorneys have an arraignment for a client in custody, the attorney must wait outside of the courtroom and cannot go in to see the judge until the last attorney leaves. The inmates will not be transferred to the court for hearings and the hearings will be conducted over video instead (although inmate arraignments are normally conducted over video).

We have no answer as to how Municipal Courts are handling this situation. I have an arraignment for an OVI client at Stow Municipal Court today. I contacted the Stow Municipal Court and was told that all arraignments are still on.

While I am hesitant to be in a public courthouse amidst all the chaos, life must go on and my clients need representation!

If anyone has any questions on how their court dates will be handled, contact me and I will find out!