Right to Counsel Not Always Guaranteed in Civil Contempt Cases
A parent who fails to pay child support as ordered by a court in Ohio faces penalties both civil and criminal in nature. The penalties and procedures for these cases are different, though, especially when it comes to the issues of seeking a court-appointed attorney for indigent defendants.
Most people are aware of the right to an attorney in criminal cases. Advising a defendant of his right to counsel is part of the familiar Miranda warnings required to be read to defendants before interrogation upon their arrest. A criminal charge for non-support of dependents, which ranges in penalty from a first-degree misdemeanor (maximum of 180 days in jail) to a fourth-degree felony (maximum of 18 months in prison) carries this right to counsel. Upon the showing that the defendant is indigent, and cannot afford to hire an attorney, the court must appoint legal representation.
Failing to pay support pursuant to a court order also carries the potential of a civil contempt of court charge – i.e., failing to comply with an order of the court. This is not a criminal charge, but it does carry the possibility of up to 30 days in jail for a first offense, 60 days in jail for a second offense and 90 days in jail for third or subsequent offenses. Despite the possibility that one charged with civil contempt could ultimately be deprived of his civil liberty and incarcerated as in a criminal matter, the right to counsel in civil contempt cases is not automatic and those charged must be aware of this or they can forfeit that right.
O.R.C. §2705.031(C)(2) requires the summons served on the accused at the time the civil contempt proceedings are filed include “notice that the accused has a right to counsel, and that if indigent, the accused must apply for a public defender or court appointed counsel within three business days after receipt of the summons.” O.R.C. §2705.031(C)(3) states that the court “may refuse to grant a continuance at the time of the hearing for the purpose of the accused obtaining counsel, if the accused fails to make a good faith effort to retain counsel or obtain a public defender.”
The Summons in Contempt issued by the Butler County Domestic Relations Court appears to broaden the right to counsel, as it informs the accused of the obligation to request counsel “at your first appearance before the Court” rather than within three business days of receipt of the summons.
Jurisdictions in Ohio are split on whether there is an absolute right to counsel in civil contempt matters (with some District Courts of Appeal holding that a 1981 Supreme Court case is controlling, and others not agreeing). But, locally the Twelfth District Court of Appeals in Middletown (serving 8 counties including Butler, Warren, Clermont, and Preble) has affirmed the right to counsel is not automatic under this statute as recently as September 2010.
On March 23, 2011, this issue was argued before the United States Supreme Court in relation to a South Carolina case. The decision is pending, but the outcome could affect the law in Ohio, South Carolina, Florida, Maine and New Hampshire – all of which presently do not automatically appoint counsel in civil contempt cases. Until the Supreme Court rules, however, those charged with civil contempt for failing to pay child support must be careful to exercise due diligence to preserve their right to counsel.
As always, if you are charged in such a case you should seek advice from an attorney before proceeding on your own. The law office of Daniel W. Gehr can help you defend your rights in cases such as this. Don’t wait to call until it is too late to ensure you are protected.
Copyright ©2011 Daniel W. Gehr, Attorney at Law. The foregoing content may not be reproduced without express written consent of Daniel W. Gehr, Attorney at Law. All rights reserved.
ShareWhat To Do In An Automobile Accident
Thursday, 20 January 2011 18:45
With today’s snow storm, be sure to drive carefully and leave plenty of space between vehicles. In the unfortunate event you are involved in an accident, here are some tips to make sure you are fully protected in case of injury or property damage:
1. Make a police report: Even if you do not think you are injured at the scene, some soft tissue injuries do not show up until later in the day or the next day. While not calling the police when vehicle damage seems light may be the fastest way to get back on the road to your destination, that approach may be detrimental in the long run if you need evidence of fault or the identification of the other driver. Request that the officer prepare a full accident report, if possible, rather than a simple exchange of information.
2. Obtain Identification Information: At minimum, get the name, address, telephone number and insurance company of the driver of the other car. If the driver is not the owner of the vehicle, then to the extent possible, also get this same information as to the owner. Other information that is very helpful: the policy number and limits, if this information is available (it may be on the other party’s insurance card, so be sure to ask to see it).
3. Witnesses: If anyone else was a witness to the accident, be sure to obtain their contact information, too – even if the witnesses did not talk to the police or make a written statement.
4. Take Pictures: Photographs of the vehicles, both to show the damage and their relative positions in the road are very helpful. Most cell phones have cameras, so this is something that can be very easy to do while you are waiting for the police to arrive.
5. Don’t be Brave: If you feel that you are injured, be sure to tell the responding officer. Even if you refuse treatment, the officer can write down that you are injured in the accident report. This keeps an insurance company from claiming you were not injured because the “Injury – No” box was checked. Don’t suffer in silence just to appear strong at the scene.
6. Report Immediately: The sooner you report the claim, the sooner the insurance company can begin processing the claim. If you wait for the other party to report the accident, it will take longer to start fixing your car or getting a rental car. But, if fault is at issue, you may want to jump ahead and …
7. Talk to an Attorney: An adjustor may want to take your recorded statement. As in a criminal case, what you say here can, and likely will, be used against you. If the officer could not make a finding about which driver was at fault or the other party is denying liability, you should probably talk to an attorney before making the call to the insurance company. The benefit of a consultation could likely outweigh the slight delay in starting your claim, if the alternative is the claim being denied or reduced.
As always, every case is individual and unique. These tips are offered for general guidance only, and any questions about your specific case should be discussed with an attorney to get specific advice tailored to your specific set of facts.
Stay safe!
Copyright ©2011 Daniel W. Gehr, Attorney at Law. The foregoing content may not be reproduced without express written consent of Daniel W. Gehr, Attorney at Law. All rights reserved.
ShareWidmer, Part III - Does Money Matter?
Sunday, 16 January 2011 23:11
Ryan Widmer, The Trial III premiers this week in Warren County. For those who don’t know, Widmer is on trial for murder in the 2008 bathtub drowning of his wife. Widmer was found guilty in 2009 but the verdict was nullified due to juror misconduct. A second jury last year failed to reach a verdict, setting up the third trial which is scheduled to begin on Tuesday.
While much of the attention this time around will focus on a “mystery witness” who allegedly heard Widmer confess in some manner, and on whether Widmer’s defense will be allowed to question Hamilton Township Police Detective Lt. Jeff Braley about some inaccuracies in his personnel file, I am personally interested to see how the dynamic changes because of Widmer’s inability to completely fund his third trial. According to news reports, Widmer spent approximately $500,000 for his legal defense in the first two trials, but exhausted his funds and has requested public assistance for expert witnesses to testify on his behalf. He requested almost $50,000 from the court, but Judge Neal Bronson only allowed $11,000 in funds for two of the five experts he sought.
The Warren County Prosecutor’s Office can spend whatever it wants on the case, no matter how many times the case is tried. Unfortunately, criminal defendants are not similarly situated. One can argue that the $500,000 Widmer paid for his defense the first two times around was money well-spent. I work as a public defender, and know many other attorneys who have served in that capacity. Some of the hardest-working attorneys are often spending most of their time on public defender cases, putting everything they have into their cases, regardless of the amount they are paid. The issue for indigent defendants is not often their attorneys – it is the inability to match the State in resources for investigation and expert testimony.
If Widmer really is innocent, it would be a crime for him to be convicted because of the State’s ability to out-spend him. Whether the excluded experts he sought will be the difference in this trial remains to be seen. The “mystery witness” or Detective Braley issues may have a larger impact. (Widmer may also be faced with taking the stand to testify this time, unlike in the first two trials, but that’s another issue for another day). But, it will be interesting to see how Judge Bronson’s ruling on funds for experts comes into play, and if it does, how the verdict is ultimately accepted by the public.
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