Common Misconceptions of Criminal Law in Ohio

Kyle J. Bristow, Copyright© 2012

Many laymen misunderstand the law, and through the acting upon of this ignorance, they get themselves in trouble. I have assisted many people in such predicaments, and if they had been more knowledgeable, they might have avoided criminal prosecutions and convictions.

The following is a list things I often hear about the law from laymen that are incorrect:

1. “I have a right to defend myself if threatened with force. Period."

In Ohio, an analysis must be done to determine whether one is privileged to defend oneself from harm; it isn’t a simple matter of “he hit me so I hit him back."

In order for a person to use non-deadly force against a threat, the following factors must be shown: (1) the defender was not at fault in creating the situation, (2) the defender reasonably believed that some force was necessary to defend himself against the imminent use of unlawful force, and (3) the force used by the defender was not likely to cause death or great bodily injury. Cleveland v. Welms, 169 Ohio App. 3d 600 (2006). There is no duty to retreat before one uses non-deadly force. Columbus v. Dawson, 22 Ohio App. 3d 141 (1986).

For one to use deadly force in self-defense, the following factors must be shown: (1) the slayer was not at fault in creating the situation giving rise to the conflict; (2) the slayer reasonably believed that he was in imminent danger of death or great bodily injury and that his only means of escape from such danger was by use of such force; and (3) the slayer must not have violated any duty to retreat or avoid the danger. State v. Robbins, 58 Ohio St. 2d 74 (1979).

In order for one to lawfully use force against a threat to defend a third party, the same analysis is done as above, but it is done from the perspective of the third party. For example, if a 200 pound male is punching an elderly woman and a person steps in to defend said elderly woman, the defender is only privileged to use force against the 200 pound male if the elderly woman is otherwise lawfully able to do so. “Defense of other" situations can be complicated and result in results offensive to laymen, because the person being defended may have instigated a confrontation of which the defender is unaware. For example, in the situation above, had the elderly woman kicked the 200 pound male’s dog after yelling an ethnic slur at him, then the elderly woman—and those coming to her aid—would not be privileged to use force against the larger male.

2. “I have a right to confront my accuser."

Many people believe that if the alleged victim of their crime does not testify, that the case against them can and will be dismissed. This is not necessarily the case, because exceptions exist that permit third parties to testify as to what the alleged victim claims happened to them. For example, pursuant to Crawford v. Washington, 541 U.S. 36 (2004), statements made to a 911 operator may sometimes be used against the defendant in court—even though the person who made the statements chose not to testify.

Also, exceptions to the rule against hearsay exist, and these can be used against the defendant in court. For example, if an alleged victim of a crime excitedly utters “Help, help, he is punching me," people who hear this exclamation can testify that it was said. Also, if the defendant admits to having committed the crime, this statement may be used against that person in court, too.

In this sense, a Defendant need not necessarily confront their accuser in order to be found guilty of committing a criminal offense.

3. “I wasn’t drinking and driving! I was only passed out drunk in the driver’s seat and the engine wasn’t even running!"

In Ohio, Revised Code Section 4511.194 defines what constitutes being in “physical control" of a car: (1) being in the driver’s seat of the vehicle and (2) having possession of the vehicle’s keys. Therefore, under this statute, one can be found guilty of operating a vehicle while intoxicated even if one is not “driving" the vehicle as a layman understands what driving to mean.

4. “The police arrested me without giving me my Miranda warning!"

When a person is arrested, the police need not give a person their Miranda warning (i.e., “You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.") However, if a person is arrested and is not given their Miranda warning, then anything that person says during a “custodial interrogation" should be ruled inadmissible at trial.

In my experience, police officers are quite knowledgeable about tricking people into waiving their right to remain silent. For example, some police officers will arrest a person and let them make incriminatory statements without eliciting said statements from them. While the person may be in “custody," no “interrogation" occurred.

If a person is confronted by police officers, it is often best that they say nothing except for their name, residential address, phone number, and that they wish to speak with a lawyer.

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