Ohio Intervention In Lieu of Conviction statutes clarified

In April 2009, a Warren County, Ohio grand jury indicted a Regina Niesen-Pennycuff on multiple counts of deception to obtain a dangerous drug, each count a fifth-degree felony.

Niesen-Pennycuff initially entered not guilty pleas on all counts, but later petitioned the court to refer her case to an intervention in lieu of conviction (ILC) program through which she would be able to participate in a drug abuse intervention program in lieu of going to trial on the pending criminal charges, the Ohio Supreme Court's summary latter related. Under the terms of Ohio's ILC in ORC 2951.041, Niesen-Pennycuff, having successfully completed the intervention program and with a period of court-monitored abstinence from drug use, the charges against her would be dismissed without a finding of guilt, and she would be free to petition the court for an expungement of her record.

In August 2010, the court filed its entry recognizing Niesen-Pennycuff's successful completion of the ILC program and dismissing all of the charges pending against her, but, in September 2010 when Niesen-Pennycuff filed an application asking the court to seal her record, the state opposed that application, arguing that she would not be eligible to have her record sealed until three years after the date of the dismissal order, which would be August 2013. The trial court agreed and denied the application, advising Niesen-Pennycuff that she would be eligible to reapply in 2013.

The Supreme Court's summary reported that Niesen-Pennycuff appealed the decision with the Twelfth District Court of Appeals affirming the trial court's ruling, but certifying that its decision was in conflict with State v. Fortado, a 1996 decision in which the Ninth District had held that a defendant whose charges had been dismissed following completion of an ILC program was immediately eligible to apply for sealing of his record.

Ohio's supreme court resolved the issue on June 21st., holding that, by virtue of the wording in statute, trial courts have the discretion either to grant the motion immediately under R.C. 2953.52(A)(1), or to impose a waiting period before the record is sealed pursuant to R.C. 2953.32(A)(1).  [ See Opinion Here and Correction Here ]

Supreme Court Justice Paul E. Pfeifer, earlier this week in a Circleville Herald posting on Dec. 17th.,, explained that "when a court such as ours interprets a law, we have to determine the legislative intent behind it; that means we examine the words and phrases used in the language of the law. The ILC law states that the court 'may order' the records to be sealed. The use of the word 'may' instead of 'shall' indicates that the court has discretion on the issue of sealing the records."