Self-Defense and the Ohio Castle Doctrine

The Castle Doctrine is intended to protect homeowners from being threatened inside their own homes, but it is complicated. If you’re claiming self-defense, you need an experienced attorney at your side.

BurglarWhen do you have the right to use deadly force in self-defense? When will the law work with you, rather than against you, in the face of threat? In Ohio, the ability to use deadly force for self-defense – and not go to jail for manslaughter or murder – must meet certain standards.

Duty to Retreat

If you are in public, on a street or in a public place, and you face a physical threat, you have what’s called a “duty to retreat” – in other words, rather than face the threat, you are required by law to do your best to escape from the threat by leaving, running away, or getting help from a peace officer. Only when the use of force is your only alternative will self-defense be found legitimate by a jury. Currently, the law in Ohio requires a defendant asserting self-defense to prove three things by a preponderance of the evidence (more likely than not):

(1)   That the defendant was not at fault in creating the situation giving rise to the “affray.”

(2)   That the defendant “had a bona fide belief that he was in imminent danger of death or great bodily harm and the only means to escape such danger was in the use of such force.”

(3)   That the defendant “did not violate any duty to retreat or avoid the danger” as discussed above.

The Castle Doctrine

While you have a duty to retreat when threatened in public, Ohio is a “stand your ground” state when it comes to being threatened in your own home. You do not have to retreat if an intruder enters your home and threatens you or your family.

And intruders are the clearest cases where the Castle Doctrine applies and your argument of self-defense will not be questioned when someone breaks into your home and threatens your safety or the safety of your family. At that point, you are within your rights to use deadly force to defend yourself and your family from the intruder.

In order to be protected by the Castle Doctrine, the intruder must actually be inside your home or attempting to enter (coming in/breaking through a door or window). If the intruder is simply peeking through a window and has not made an attempt to enter, you need to call 9-1-1 and request assistance from the police. For the Castle Doctrine to apply, you must actually believe that your life or the lives of your family members are in grave danger.

There are limits to the application of the Castle Doctrine.

Invited Guests

You will not be able to use self-defense against a threat from someone who has been invited to be in your home, even if it was someone else (a spouse or child) who invited the person in. There are, of course, extenuating circumstances where this would not apply and you would be allowed to use the self-defense argument, but it is rare.

Other Residents

You cannot claim self-defense against other residents of your home. For example, you cannot kick your adult child out of the home then shoot them when they try to come back in.

Departing Burglars

As much as you might think you have the right, if the burglar or intruder is leaving your home, you are no longer protected under the Castle Doctrine, because your life is no longer in imminent danger.

Delivery People

You cannot use self-defense against postal workers or FedEx drivers who have short-term rights to be on your property. You also cannot use self-defense if you’re not home and arrive to find someone breaking in. Then, you must call the police.

The only other time the Castle Doctrine applies is if you are in your car and must act in self-defense to preserve your life. The same elements apply: you must not have invited the person into the car with you, you must not be able to flee or retreat, and your life must actually be in danger.

The Castle Doctrine is intended to protect homeowners from being threatened inside their own homes, but it is complicated. If you are being charged with a crime and believe you acted in self-defense, you need an experienced Ohio criminal defense attorney to help you navigate the criminal process. For more information and a free consultation, please contact Jeff Hastings, experienced Cleveland Criminal Defense Attorney.


Why Was I Charged with a DUI or OVI?

It comes as a shock to many citizens who are charged with an OVI to discover that even though it felt like they were passing the field sobriety tests.

IMG_3453bWere you arrested or issued a ticket for an OVI even though you believed you had passed the field sobriety tests given by the officer? It comes as a shock to many citizens who are charged with an OVI to discover that even though it felt like they were passing the field sobriety tests. Unfortunately, the telltale signs of inebriation that the officer is looking for can be dramatically different from what you believe you’re demonstrating during the test. Officers in Ohio are trained to look for specific behaviors and physiological symptoms that indicate a blood-alcohol content above the legal limit of 0.08.

Field Sobriety Tests

Field sobriety tests are used by Ohio officers to determine the likelihood that a driver will have a blood-alcohol level of 0.08 or higher. Often, the officers will begin field sobriety testing with the Horizontal Gaze Nystagmus (HGN) test. What you’ll be asked to do is simple: follow a pen, light, or finger with your eyes as it moves back and forth. You may feel as if you are “passing” the test because you are able to follow the object with your eyes. Unfortunately, what the officer is watching for is nystagmus, a twitch that occurs involuntarily. Alcohol is not the only cause of nystagmus; other neurological conditions and chemicals (nicotine, caffeine) can also cause these twitches.

Balance tests are also used to test for sobriety. The officer will ask you to stand on one leg to help determine whether or not you are over the legal blood-alcohol limit to be driving. You may be able to stand on one foot for the full 30 seconds, but the officer is watching for other clues as well, including swaying, using arms to balance, or hopping – all of which can indicate to the officer that you have been drinking.

The walk and turn test is another common field sobriety test. You’ve likely seen something similar on TV shows or in movies. The driver is instructed to walk a straight line, with the heel touching the toe on each step. The driver is typically instructed to take a specific number of steps, then turn and return. Even if you walk a straight line during this test, the officer is also watching for other clues of inebriation, including an inability to follow instructions, an inability to keep heel and toe together, and pauses during the test.

What to Do If You Get an OVI

Operating a vehicle while impaired, or OVI, is a broadened scope of a driving under the influence charge, and you don’t even have to be currently driving the vehicle to be charged with OVI. If the officer is unable to determine if you drove the vehicle, you can be charged under the Physical Control statute.  If you are charged with an OVI, it is important to get an experienced Ohio OVI attorney who is familiar with the administration of field sobriety tests to help you.

It is possible to fight OVI and Physical Control charges, but an experienced attorney who is familiar with the tests and equipment used by Ohio officers can help. This is particularly crucial if you were charged with an OVI after a breathalyzer or blood test. If you have been charged with an OVI or Physical Control crime in Cleveland or Northeast Ohio, you will need an experienced criminal attorney to help you navigate the criminal process. For more information and a free consultation, please contact Jeff Hastings, experienced Cleveland Criminal Defense Attorney.

Ohio OVI Laws – Arm Yourself with Knowledge

IgnitionIn January, 2005 Ohio’s Physical Control Statute (R.C. 4511.194) went into effect. This statute governs “physical control” of a vehicle and is similar to statutes governing DUI, except that you don’t have to have the vehicle on or even be driving to be charged under Ohio’s physical control statute.

Ohio’s Physical Control Statute states:

“’Physical control’ means being in the driver’s position of the front seat of a vehicle or in the driver’s position of a streetcar or trackless trolley and having possession of the vehicle’s, streetcar’s, or trackless trolley’s ignition key or other ignition device.”

It goes on to say that no person can be in physical control of a vehicle (i.e., in the driver’s seat) if that person:

  • Is under the influence of alcohol, drugs, or any combination of them
  • Has a blood alcohol content of .08 or more.

What does the Physical Control Law mean for citizens?

Because of this law, it is no longer safe to “sleep it off” in your car, especially if you put the key in the ignition or plan to run the car to heat or cool it. Having car keys “within reach” satisfies the statute’s definition of physical control. While it may seem like another layer of legal maneuvering, the Physical Control statute is a positive step. It offers a reduced punishment for those who drink but choose not to drive. However, your best bet is to not get behind the wheel for any reason if you have been drinking.

Can my attorney help me get the charge reduced?

An effective attorney may be able to help you get a physical control charge reduced to a lesser charge, but many variables will come into play, such as:

  • Your driving and criminal record
  • The officer’s report and the facts surrounding the charge(s)
  • Your blood alcohol content at the time
  • The judge’s feelings toward physical control charges
  • Whether or not you drove or caused an accident in advance of the physical control issue

Because Ohio courts have a low to no tolerance attitude toward OVI/DUI cases, it is crucial that you find a Cleveland criminal attorney who is experienced in handling DUI, OVI, and Physical Control cases.

If you have been charged with a DUI/OVI or Physical Control crime in Cleveland or Northeast Ohio, you need an experienced criminal attorney to help you navigate the criminal process. For more information and a free consultation, please contact Jeff Hastings, experienced Cleveland Criminal Defense Attorney.


How Do I Expunge My Criminal Record in Ohio?

This information does not constitute legal advice, nor is it intended as a substitute for legal advice.

expungeIf you have been convicted of a crime in Ohio, your record can be sealed. In Ohio, expungement and the act of sealing a record function in the same way. The law has recently been updated, so if you were not eligible for expungement before, you may be now.

If you would like to have your criminal record expunged, the process begins by filing papers in the Court where your case was filed to have your record sealed. You must meet the following conditions according to the Ohio Revised Code Section 2953.31, Sealing of record of conviction:

  • No more than one felony conviction
  • No more than two misdemeanor convictions (minor traffic violations do not count)
  • Not more than one felony conviction and one misdemeanor conviction
  • You must not have been required to serve a mandatory prison sentence (even if you did serve time, you must have been eligible for community control, or probation)

There are restrictions to expungement based on the type of crime. In Ohio, a first- or second-degree felony cannot be expunged. If the victim of the crime was under the age of 18, whether the crime was a misdemeanor or a felony, the conviction cannot be expunged. And, violent offenses like kidnapping, domestic violence, felony assault, murder, rape, arson, robbery, and sexual offenses are not eligible for expungement. DUIs, hit-and-runs, and street racing convictions are also not eligible.

Expungement Process

The expungement process requires a completed application, a fee, and a court appearance. The prosecutor who served during the court case resulting in the original conviction will have the opportunity to object to the expungement and will be allowed to provide reasons why the expungement should be denied.

Your attorney should present facts that demonstrate your rehabilitation. The court will listen to the prosecutor’s objections as well as your reasons for wanting the record sealed. You must be able to demonstrate to the court’s satisfaction that you are properly rehabilitated. If the court determines you have been properly rehabilitated and agrees to the expungement, all of the official records regarding your case will be sealed. It will be as if the conviction never occurred, providing you with the opportunity to get your life back on track without the conviction hanging over your head.

Sealing vs. Expungement

A record can be sealed if you were charged with a crime but not convicted, whether the charges were dismissed or you were found not guilty. This allows you to still answer “No” to application questions that ask whether you have ever been arrested or charged with a crime. Under Ohio law, if the record is sealed, it’s as if the arrest or charge never even existed.

A record can be expunged if you were convicted but meet certain requirements to have the record removed from public access. If you successfully seal or expunge your record, you are likewise allowed to answer “No” to applications questions that ask if you were convicted of a crime. However, an expunged record is not completely sealed; law enforcement and educational institutions will still have access to the information. You may also be forced to answer questions about an expunged conviction when “the question bears a direct and substantial relationship to the position for which the person is being considered.” This is most often going to arise if you are trying to get a job working with a vulnerable population, such as children or the elderly, or for jobs that require a security clearance.

If you have a conviction or charge on your record that is preventing you from moving forward with your life, I can help you work through the process of expungement. Contact me for a consultation.

When and Why You May Need a Criminal Defense Attorney

Cleveland CourthouseIf you are being charged with a crime in Ohio, the consequences can be devastating. Not only can you be put in jail or on probation, but the courts can also impose hefty fines. Being convicted of a crime in Ohio can also impact your future: Professional licenses can be suspended or revoked; your employment status can be negatively affected and the opportunity to find good paying job will be diminished; and your reputation in the community can be tarnished. Those convicted of a felony lose their right to own firearms as well as their right to vote while imprisoned.

Cleveland Criminal Defense Lawyer Serving Cuyahoga County and all of Northeast Ohio

If you are facing criminal charges, hiring an experienced criminal defense attorney can ensure that you are protected and treated fairly during the litigation process. As a criminal defense attorney, I have helped hundreds of clients in the greater Cleveland area for more than 22 years, defending them against misdemeanor and felony offenses.

What Is the Role of a Criminal Defense Attorney? 

The job of your criminal defense attorney is to make sure you are treated fairly. This means that your attorney will make sure the rules are followed regarding the way the government obtains its evidence and how they handle the criminal proceedings in court.

Every person in this country has the right to be presumed innocent unless guilt is proven beyond all reasonable doubt. So it is my job as your criminal defense attorney to make sure that the evidence introduced is fairly obtained, that any interviews conducted of you and other witnesses are properly performed, and that no exculpatory evidence (evidence that would prove your innocence) is overlooked or unfairly hidden from the jury and judge.

The job of a criminal defense attorney is more than just playing a role in defending the individual client. He or she works to protect your freedom during the court process and employs investigators that conduct their own inquiries, to determine what really happened. Criminal defense attorneys play a role in protecting all Ohio citizens from the Government’s use of unfair practices.

Criminal Cases in Cuyahoga County and Northeast Ohio 

No two criminal defense cases are the same, and no two defendants are either. I work carefully to represent and defend you by focusing on your individual needs. The same criminal case may even be handled differently in different counties, and I consider your location, whether you’re in Cuyahoga County or elsewhere in Northeast Ohio, in my approach to your defense. I have experience representing clients who have been charged with both misdemeanors and felonies in many counties through-out in Ohio by providing the following services:

  • Researching legal issues
  • Comprehensively investigating the facts of the case
  • Suppressing illegally obtained evidence and witnesses
  • Assisting you in preparing for trial
  • Negotiating with the prosecutor’s office
  • Representing you during the trial
  • Selecting the best possible jury when necessary
  • Representing you during sentencing if necessary

If you have been charged with a serious crime in Cleveland or Northeast Ohio, you need an experienced criminal attorney to help you navigate the criminal process. For more information and a free consultation, please contact Jeff Hastings, experienced Cleveland Criminal Defense Attorney.