Juvenile felony question

This forum is for discussion of general issues regarding Concealed Carry in your everyday life. This forum is not intended to be political or for discussing legislation.

Moderators: Coordinators, Moderators

Re: Juvenile felony question

Postby Mike6789 » Thu Oct 30, 2014 11:20 am

Yea it appears the area of expunging granting relief is a bit of a gray area. If it shows up on no BCI check.. No court check.. Cops do not see it when they pull me over.. They would never know I had a felony. Its not like sealing where courts can still see it. From what I have read for a juvenile expungement all physical and digital records should be destroyed. So nobody should ever see felony pop up for any reason.
Mike6789
 
Posts: 23
Joined: Tue Oct 28, 2014 4:19 pm

Re: Juvenile felony question

Postby Werz » Thu Oct 30, 2014 12:10 pm

SeanC wrote:There are good arguments either way. I tend to agree with Werz. But even if we're wrong and that's an excessive approach, who wants to be a test case for something like that?

A single charge of Having Weapons While Under Disability seems unlikely in this situation. But what about a questionable defensive shooting? In addition to the homicide or felony assault charge, bringing in the weapons charge renders evidence of the prior robbery adjudication relevant. Because the charges are intricately interrelated, the potential for severing the weapons charge is essentially nil, and the jury will hear evidence of the prior robbery adjudication during the homicide/felony assault trial. Court records will not be available as evidence of the prior adjudication, but the more the lack of written records is challenged, the more it will invite detailed testimony of the witnesses regarding the prior offense. Not a good situation in which to find yourself.
"An armed society is a polite society. Manners are good when one may have to back up his acts with his life."
-- Robert A. Heinlein, Beyond This Horizon
"Remember that protecting our gun rights still boils down to keeping a majority in the electorate, and that our daily activities can have the impact of being ambassadors for the gun culture ..."
-- BobK
Open carry is a First Amendment exercise.
User avatar
Werz
OFCC Patron Member
OFCC Patron Member
 
Posts: 5498
Joined: Sun Aug 16, 2009 2:37 am

Re: Juvenile felony question

Postby Mike6789 » Thu Oct 30, 2014 12:31 pm

Werz wrote:
SeanC wrote:There are good arguments either way. I tend to agree with Werz. But even if we're wrong and that's an excessive approach, who wants to be a test case for something like that?

A single charge of Having Weapons While Under Disability seems unlikely in this situation. But what about a questionable defensive shooting? In addition to the homicide or felony assault charge, bringing in the weapons charge renders evidence of the prior robbery adjudication relevant. Because the charges are intricately interrelated, the potential for severing the weapons charge is essentially nil, and the jury will hear evidence of the prior robbery adjudication during the homicide/felony assault trial. Court records will not be available as evidence of the prior adjudication, but the more the lack of written records is challenged, the more it will invite detailed testimony of the witnesses regarding the prior offense. Not a good situation in which to find yourself.


So are you saying it would be unlikely to have a weapons under disability charge (I assume because the felony would not show up anywhere to imply a disability?) BUT if I were to ever use the gun in a self defense situation I would pretty much be screwed? As that previous case would be brought up, even though it is expunged?

Would a relief help protect me from the latter? Doesn't seem like it, I would think even with a relief granted they would still use the previous case, if for no other reason to try and prove a previous history of violence as robbery would be a crime of violence.
Mike6789
 
Posts: 23
Joined: Tue Oct 28, 2014 4:19 pm

Re: Juvenile felony question

Postby Werz » Thu Oct 30, 2014 6:31 pm

Mike2541 wrote:So are you saying it would be unlikely to have a weapons under disability charge (I assume because the felony would not show up anywhere to imply a disability?) BUT if I were to ever use the gun in a self defense situation I would pretty much be screwed? As that previous case would be brought up, even though it is expunged?

Would a relief help protect me from the latter? Doesn't seem like it, I would think even with a relief granted they would still use the previous case, if for no other reason to try and prove a previous history of violence as robbery would be a crime of violence.

No. That's my point. It is unlikely that an expunged felony juvenile adjudication could be used for anything except a charge of Having Weapons While Under Disability. That's why it's a good idea to be protected from that charge by relief from disability. The risk is that a prosecutor could intentionally throw that charge into an indictment, not for the primary purpose of convicting on that charge, but for the purpose of putting that Robbery in front of the jury. If you are charged with a violent offense, the jury may be instructed that they should not consider your juvenile adjudication for character purposes, but the jury can't "un-hear it."

And if you get charged with a violent offense, there's likely to be some police officer or prosecutor who says, "Hey, I remember that guy!"
"An armed society is a polite society. Manners are good when one may have to back up his acts with his life."
-- Robert A. Heinlein, Beyond This Horizon
"Remember that protecting our gun rights still boils down to keeping a majority in the electorate, and that our daily activities can have the impact of being ambassadors for the gun culture ..."
-- BobK
Open carry is a First Amendment exercise.
User avatar
Werz
OFCC Patron Member
OFCC Patron Member
 
Posts: 5498
Joined: Sun Aug 16, 2009 2:37 am

Re: Juvenile felony question

Postby SeanC » Fri Oct 31, 2014 8:44 am

Werz wrote:But what about a questionable defensive shooting?


Image

As Brent would say, "this is our concern, dude."

My strong suspicion is that an expunged record will never be found. And if it is, I doubt that a prosecutor won't be interested in the case because of the difficulty in proving a conviction where all of the records of the conviction have been destroyed. Barring that, it seems unlikely that a good judge or jury would be able to convict because of the rule of lenity. Still, a common refrain for litigants is "I could never have imagined that this would happen." Weird stuff happens, that's how people end up in court.
I am a lawyer; I am not your lawyer.

http://www.green-law.com/attorneys/sean-m-culley/
User avatar
SeanC
OFCC Coordinator
OFCC Coordinator
 
Posts: 2516
Joined: Fri Oct 13, 2006 1:35 pm
Location: Springboro, Ohio

Re: Juvenile felony question

Postby Werz » Fri Oct 31, 2014 5:53 pm

SeanC wrote:My strong suspicion is that an expunged record will never be found.

True. But as I noted before, a certified copy and an ID witness is not the only way to prove a prior conviction. How many cops will still remember an eight-year-old robbery? Two cops who both remember the case and can ID the juvenile defendant, thus corroborating each other? Good enough for admissibility?

SeanC wrote:And if it is, I doubt that a prosecutor won't be interested in the case because of the difficulty in proving a conviction where all of the records of the conviction have been destroyed. Barring that, it seems unlikely that a good judge or jury would be able to convict because of the rule of lenity.

Not suitable for a primary charge. But as an auxiliary charge in a multiple-count indictment?
"An armed society is a polite society. Manners are good when one may have to back up his acts with his life."
-- Robert A. Heinlein, Beyond This Horizon
"Remember that protecting our gun rights still boils down to keeping a majority in the electorate, and that our daily activities can have the impact of being ambassadors for the gun culture ..."
-- BobK
Open carry is a First Amendment exercise.
User avatar
Werz
OFCC Patron Member
OFCC Patron Member
 
Posts: 5498
Joined: Sun Aug 16, 2009 2:37 am

Re: Juvenile felony question

Postby Mike6789 » Fri Oct 31, 2014 8:30 pm

My main concern is will the FBI remove it from NCIC? Isn't that where III pulls from? I know it will be removed from the courts so an officer wouldn't see it there.. It would be removed from BCI (matter of time I assume) so they wouldn't see it there.. But if a cop checks III and the FBI did not remove it, as the states court order cannot force them to do so. From what I heard is they honor it, but doesn't mean they will or have to remove it.

If a cop pulled me over and it showed up through NCIC/III I would be screwed because then it has been found and is a matter of does the cop want to test the "not sure you're relived" theory.
Mike6789
 
Posts: 23
Joined: Tue Oct 28, 2014 4:19 pm

Re: Juvenile felony question

Postby Mike6789 » Fri Oct 31, 2014 8:33 pm

Werz wrote:
SeanC wrote:My strong suspicion is that an expunged record will never be found.

True. But as I noted before, a certified copy and an ID witness is not the only way to prove a prior conviction. How many cops will still remember an eight-year-old robbery? Two cops who both remember the case and can ID the juvenile defendant, thus corroborating each other? Good enough for admissibility?

SeanC wrote:And if it is, I doubt that a prosecutor won't be interested in the case because of the difficulty in proving a conviction where all of the records of the conviction have been destroyed. Barring that, it seems unlikely that a good judge or jury would be able to convict because of the rule of lenity.

Not suitable for a primary charge. But as an auxiliary charge in a multiple-count indictment?


I bet a lot of people hate you :mrgreen: You have a comeback for EVERYTHING. I bet you make a damn good prosecutor, not a bad thing, good to see the perspective from the other side :P
Mike6789
 
Posts: 23
Joined: Tue Oct 28, 2014 4:19 pm

Re: Juvenile felony question

Postby MyWifeSaidYes » Sat Nov 01, 2014 4:21 pm

If you do move ahead with applying for Relief from Disability, you may want to apply for an FBI NICS VAF (Voluntary Appeals File).

When you buy a firearm from an FFL, you may find yourself being DELAY'ed because of the records listed at the FBI. With a little research, they will find your restoration order (maybe) and tell your FFL to PROCEED. However, your NICS background check information is (presumably) deleted 24 hours after NICS returns an answer to your FFL. That means you will get this delay each time you purchase a firearm.

A VAF is basically telling the FBI to not delete your background info. You can provide them with a copy of your restoration order and they will keep that in your file. You will be assigned a Unique Personal ID Number (UPIN) that you can enter on Form 4473 (currently box #9). The NICS attendant will be able to quickly pull up your info without having to DELAY you for research.
MyWifeSaidYes
User avatar
MyWifeSaidYes
OFCC Coordinator
OFCC Coordinator
 
Posts: 5404
Joined: Tue Feb 16, 2010 12:59 pm
Location: Central Ohio

Re: Juvenile felony question

Postby SeanC » Mon Nov 03, 2014 10:18 am

Mike2541 wrote:My main concern is will the FBI remove it from NCIC? Isn't that where III pulls from? I know it will be removed from the courts so an officer wouldn't see it there.. It would be removed from BCI (matter of time I assume) so they wouldn't see it there.. But if a cop checks III and the FBI did not remove it, as the states court order cannot force them to do so. From what I heard is they honor it, but doesn't mean they will or have to remove it.

If a cop pulled me over and it showed up through NCIC/III I would be screwed because then it has been found and is a matter of does the cop want to test the "not sure you're relived" theory.


No. The III is actually just a computer server that reaches down into databases maintained by each state and parses the records maintained there. In other words, there is no "FBI database," just a computer that looks at all of the databases maintained in the states. If your record is removed by BCI&I (the custodian in Ohio), it will not be reflected in a NCIC or III query.
I am a lawyer; I am not your lawyer.

http://www.green-law.com/attorneys/sean-m-culley/
User avatar
SeanC
OFCC Coordinator
OFCC Coordinator
 
Posts: 2516
Joined: Fri Oct 13, 2006 1:35 pm
Location: Springboro, Ohio

Re: Juvenile felony question

Postby Mike6789 » Mon Nov 03, 2014 10:26 am

Wonderful, you guys are pretty knowledgeable. I wish the state would listen to us more, clearly this needs defining. Sadly takes somebody going to jail to make it happen.
Mike6789
 
Posts: 23
Joined: Tue Oct 28, 2014 4:19 pm

Re: Juvenile felony question

Postby JediSkipdogg » Mon Nov 03, 2014 2:00 pm

SeanC wrote:
Mike2541 wrote:My main concern is will the FBI remove it from NCIC? Isn't that where III pulls from? I know it will be removed from the courts so an officer wouldn't see it there.. It would be removed from BCI (matter of time I assume) so they wouldn't see it there.. But if a cop checks III and the FBI did not remove it, as the states court order cannot force them to do so. From what I heard is they honor it, but doesn't mean they will or have to remove it.

If a cop pulled me over and it showed up through NCIC/III I would be screwed because then it has been found and is a matter of does the cop want to test the "not sure you're relived" theory.


No. The III is actually just a computer server that reaches down into databases maintained by each state and parses the records maintained there. In other words, there is no "FBI database," just a computer that looks at all of the databases maintained in the states. If your record is removed by BCI&I (the custodian in Ohio), it will not be reflected in a NCIC or III query.


Actually, there is an FBI record on some crimes. You are correct about what III does as it reaches down, but there is an FBI database, it's called CJIS and it holds certain crimes that are more serious in nature.

Here's a tad about them: http://www.fbi.gov/about-us/cjis/identi ... ary-checks

I'm trying to find more info on what crimes are required to be submitted, but having a hard time. I run people quite often for investigations and get responses back from the FBI along with multiple states.
Carrying Concealed Handguns - Signage Answers

Ohio Concealed Carry Classes in S/W Ohio
http://www.ProShootersTraining.com

I am not a lawyer. My answers are based on research, knowledge, and are generally backed up with facts, the Ohio Revised Code, or the United States Code.
User avatar
JediSkipdogg
 
Posts: 10131
Joined: Sun Jul 27, 2008 3:03 pm
Location: Batavia

Re: Juvenile felony question

Postby Mike6789 » Mon Nov 03, 2014 2:25 pm

JediSkipdogg wrote:
SeanC wrote:
Mike2541 wrote:My main concern is will the FBI remove it from NCIC? Isn't that where III pulls from? I know it will be removed from the courts so an officer wouldn't see it there.. It would be removed from BCI (matter of time I assume) so they wouldn't see it there.. But if a cop checks III and the FBI did not remove it, as the states court order cannot force them to do so. From what I heard is they honor it, but doesn't mean they will or have to remove it.

If a cop pulled me over and it showed up through NCIC/III I would be screwed because then it has been found and is a matter of does the cop want to test the "not sure you're relived" theory.


No. The III is actually just a computer server that reaches down into databases maintained by each state and parses the records maintained there. In other words, there is no "FBI database," just a computer that looks at all of the databases maintained in the states. If your record is removed by BCI&I (the custodian in Ohio), it will not be reflected in a NCIC or III query.


Actually, there is an FBI record on some crimes. You are correct about what III does as it reaches down, but there is an FBI database, it's called CJIS and it holds certain crimes that are more serious in nature.

Here's a tad about them: http://www.fbi.gov/about-us/cjis/identi ... ary-checks

I'm trying to find more info on what crimes are required to be submitted, but having a hard time. I run people quite often for investigations and get responses back from the FBI along with multiple states.


So let me ask you this, if I pay for the BCI/FBI background check, like $60 at sheriffs office.. If it comes back with no records, would that mean a police running me or my plates would also see nothing?

Also do cops have access to cjis?
Mike6789
 
Posts: 23
Joined: Tue Oct 28, 2014 4:19 pm

Re: Juvenile felony question

Postby JediSkipdogg » Mon Nov 03, 2014 2:53 pm

Mike2541 wrote:So let me ask you this, if I pay for the BCI/FBI background check, like $60 at sheriffs office.. If it comes back with no records, would that mean a police running me or my plates would also see nothing?

Also do cops have access to cjis?


CJIS is automatic when an officer runs a BCI/III query by your name and other identifying characteristics. It's hard to fully explain how it all works with the multitude of systems of systems that are automatically checked vs manually checked when a query is run.

If you pay for the full BCI/FBI (make sure it includes FBI) and it comes back clean, it's been removed literally speaking.
Carrying Concealed Handguns - Signage Answers

Ohio Concealed Carry Classes in S/W Ohio
http://www.ProShootersTraining.com

I am not a lawyer. My answers are based on research, knowledge, and are generally backed up with facts, the Ohio Revised Code, or the United States Code.
User avatar
JediSkipdogg
 
Posts: 10131
Joined: Sun Jul 27, 2008 3:03 pm
Location: Batavia

Re: Juvenile felony question

Postby Mike6789 » Mon Nov 03, 2014 7:45 pm

I'll probably wait a month or 2 before running it. Got a letter today from courts saying they notified all parties of it.

"should a party file a timely objection to the magistrates decision, this order shall serve as an interim order, and shall not be subject to the automatic stay caused by the filing of said objections. Said interim order shall not extend more than 28 days from the date of entry, subject to extension by the court in increments of 28 days for good cause show"

2151.358(D)(3)(iii) says "The victim or the victim's attorney may file a response with the court within thirty days of receiving notice of the sealing proceedings."

Hoping they do not file an objection.

Also it says "Order the record be expunged and that the proceedings in the case be deemed to have never occurred".

Boggles my mind how it could ever be used against me or not grant relief when it says "that the proceedings in the case be deemed to have never occurred"
Mike6789
 
Posts: 23
Joined: Tue Oct 28, 2014 4:19 pm

PreviousNext

Return to Ohio Concealed Carry Discussion

Who is online

Users browsing this forum: Google [Bot] and 2 guests