Recent Legislation on
Andre R. Imbrogno, Member, Ohio Parole Board
Ohio Department of Rehabilitation and Correction
• “Collateral consequences” are
restrictions, disabilities, or penalties
beyond the direct punishment imposed on
individuals at the time of sentencing.
• Generally, the term “collateral
consequence” includes both “collateral
sanctions,” which apply automatically
upon conviction, and “discretionary
Why Do Collateral
• Over 1.9 million Ohio residents (out of 11.5 million, or
17%) have a misdemeanor or felony conviction.
• For many Ohioans, their criminal histories limit their
• The inability to obtain employment, in turn, frustrates
• There are over 800 places in the Ohio Revised Code
and the Ohio Administrative Code that lists sanctions
related to employment and other barriers for persons
who have misdemeanor or felony convictions in their
A National Problem
• In 1974, 1.8 million (1.3% of the population) had
been imprisoned at some point in their lives. By
2001, that number had risen to 5.6 million (2.7% of
the adult population). If that rate remains
unchanged, 6.6% of Americans born in 2001 will
serve prison time in their lives. An even larger
portion of the population has been convicted of a
criminal offense without going to prison. According
to a 2003 DOJ report, nearly 25% of the population
(71 million) had a criminal record.
(source: Uniform Law Commission Collateral Consequences of Conviction Act Summary)
Facilitating Successful Reentry
• Ohio’s offender recidivism rate is currently at
an 11-year low, with only 34% of inmates
returning to prison after release.
• Ohio continues to explore opportunities to
further decrease the number of offenders
who return to prison.
• Approximately 400,000 individuals have
come through the prison system since the
Facilitating Successful Reentry
• The important role that gainful employment plays in
successful reentry is recognized in Parole Board release
considerations. Per administrative rule (5120:1-1-07), in
determining suitability for release, the Board is to
consider, among other things:
• The “inmate’s employment history and . . .
occupational skills” as well as the “inmate’s
vocational, educational, and other training.”
• “The adequacy of the inmate’s plan or prospects
Two recently enacted pieces of legislation
address collateral consequences in Ohio:
HB 86 (Effective 9/30/11)
SB 337 (Effective 9/28/12)
• House Bill 86, enacted in 2011, is a
comprehensive act that reformed virtually
every aspect of Ohio’s criminal justice
system, including sentencing, community
supervision, and reentry.
State v. Foster—Consecutive Sentences
Crack/Powder Cocaine Penalty Equalization
Sentencing Guidance on Drug Offenses
Intervention in Lieu
Probation Improvement and Incentive Grants
Admissions to Residential Community Sanctions
Probation and Training Standards
Risk Reduction Sentencing
Felony 4 and Felony 5 Sentencing/Felony 1 and Felony 3 Sentencing Ranges
Traditional Judicial Release (R.C. 2929.20)
New 80% Judicial Release (R.C. 2967.19)
Collateral Consequences: Certificate of Achievement and Employability
• In House Bill 86, the Ohio legislature took
a first, modest step toward addressing
collateral consequences through the
Certificate of Achievement and
Eligible offenders may apply to the DRC for a
certificate that relieves the applicant from one or
more “mandatory civil impacts”— any section of
the Revised Code or Administrative Code that
creates a penalty, disability, or disadvantage that
is imposed by a licensing agency or employer
and which precludes a person with a criminal
record from obtaining licensure or employment.
Individual Consideration/Rebuttable Presumption
If a person who has been issued a certificate applies to
a licensing agency for a license or certificate and the
person has a conviction that otherwise would bar
licensure or certification, the licensing agency must give
the person individualized consideration.
Certificate creates a rebuttable presumption that the
criminal conviction is insufficient evidence that the
person is unfit.
However, license/certification may be denied if agency
determines the applicant is unfit after individualized
Rules Applying to Employers
Same rules, above, apply for employers who
are seeking a license or certification and who
have hired a certificate holder.
Employer Immunity: Negligent Hiring
If an employer hires a certificate holder, if
a subsequent action is filed against the
employer for negligent hiring based on the
employer’s actual or constructive knowledge
of the certificate holder’s incompetence or
dangerousness, the certificate is an absolute
defense to the element of the employer’s
actual or constructive knowledge.
Employer Immunity: Negligent Retention
If the certificate holder, after being hired,
subsequently demonstrates dangerousness and
if the employer nevertheless retains the
employee, the employer may be held liable in a
civil action that relates to the retention only if it is
proven that the employer had actual knowledge
of the employee’s dangerousness and willfully
retained the employee after the employee
demonstrated the employee’s dangerousness.
Eligibility for a Certificate
Applicant is currently incarcerated with an
expected release date that is one year or
less from the date of the application or the
applicant is currently on parole or post-
The applicant satisfactorily completed
one or more in-prison vocational
programs approved by department rule.
Eligibility for a certificate (continued):
The applicant completed one or more
cognitive or behavioral improvement
programs while incarcerated, while under
supervision, or both.
The applicant has completed community
The applicant has shown other evidence
of achievement and rehabilitation.
“Evidence of achievement and
Completing adult basic education
Obtaining a GED
Completing a pre-GED program
Obtaining a high school diploma
Completing anger management
Completing victim awareness
Revocation of Certificate
An issued certificate must be revoked if
the certificate holder is subsequently
convicted of any offense other than a
minor misdemeanor or traffic offense.
Certificate cannot be revoked for violation
of a condition of release unless the
violation is also a criminal offense.
• Effective September 28, 2012.
• Enacts a number of proposals developed
in collateral consequences forums
debuted in 2011 by Gov. Kasich and co-
sponsored by DRC and DYS to formulate
consensus-based policy proposals to
present to the General Assembly.
– Other stakeholders included legislators, judges,
prosecutors, and the Ohio Public Defender.
• Areas Affected by Senate Bill 337
– Professional Licensing
– Record Sealing
– Child Support
– Traffic Penalties/Driver’s Licenses
– Juvenile Justice
• Certificate of Qualification for Employment
Senate Bill 337 creates a new type of court-issued
certificate that removes barriers to professional
licensing. The CQE lifts the automatic bar of an
employment-related collateral consequence and
entitles the certificate holder to individualized
consideration on the question of fitness.
The CQE builds upon the concept of the Certificate
of Achievement and Employability.
• CQEs: Eligibility
An individual is eligible for a CQE regardless of
whether the offender was incarcerated for the
crime or instead received community control.
Application may be made at any time after one
year has expired from release from incarceration
and any period of post-release supervision, or
one year from final release from all community
control sanctions, as appropriate.
• CQEs: Review of Applications
In most cases, applications for CQEs are
submitted to the DRC and are reviewed for
completeness by DRC’s Adult Parole
Authority. If the application is complete,
the APA will forward the application to the
court of common pleas of the county in
which the applicant resides.
• CQEs: Application Information
(1) Name, date of birth, and Social Security number.
(2) All aliases and all Social Security numbers associated
with the aliases.
(3) Residence address.
(4) Length of time that the applicant has been an Ohio
(5) Name or type of each collateral sanction from which the
individual is requesting a CQE.
• CQEs: Application Information (continued):
(6) A summary of the applicant’s criminal history with
respect to each offense that is a disqualification from
employment or licensing, including the years of each
(7) A summary of the applicant’s employment history.
(8) Verifiable references.
(9) The name of immediate family members or others who
support the applicant’s reentry plan.
• CQEs: Application Information (continued):
(10) A summary of the reason that the applicant
believes the CQE should be granted.
(11) Any other information required by DRC
• CQEs: Factors for Court to Consider
A court of common pleas must consider all of the following
factors in deciding whether or not to grant a CQE:
(1) Will granting the certificate materially assist the
offender in finding employment?
(2) Does the offender have a substantial need for the CQE
in order to live a law-abiding life?
(3) Will granting the CQE pose an unreasonable safety risk
to the general public or any individual?
The burden is on the applicant to establish each of these
criteria in his or her favor by a preponderance of evidence.
• A court may not issue a CQE that grants the
individual relief from any of the following:
– Requirements imposed under the SORN
– Certain driver’s license suspensions or
revocations, including DUI.
– Restrictions on employment as a
prosecutor or law enforcement officer.
• CQE limitations—Collateral Consequences Not Eligible
– Denial, ineligibility, or automatic suspension of a license as
a health care professional under Title 47 if the person was
convicted of aggravated murder, murder, voluntary
manslaughter, felonious assault, kidnapping, rape, sexual
battery, GSI, aggravated arson, aggravated robbery,
aggravated burglary, unlawful distribution of abortion-
– Immediate suspension of a license, certificate, or evidence
of registration imposed on a licensed health care
professional who is addicted to or illegally distributing a
• CQE limitations—Collateral
Consequences Not Eligible (continued)
– Denial or ineligibility for employment in a pain
clinic for those convicted of felony drug
offenses or felony theft offenses.
– The mandatory suspension of a license as a
health care professional for being in default
on child support payments.
• CQEs: Court Procedure
• Court of common pleas where the applicant resides
hears and determines the application.
• Steps the court must take upon receiving an application:
– Notify the prosecutor of the county where the
applicant resides that the prosecutor may send
– Notify all other courts in the state in which the
offender has been convicted of an offense that the
court may send comments on the application.
• CQEs: Court Procedure (continued)
– Order any report, investigation, or disclosure by the
individual that the court believes is necessary.
– Consider any filings submitted by the victim or
– Decide whether to issue the certificate within 60 days
after the court receives the application. (Court may
extend beyond 60 days upon the applicant’s
• CQEs: Denial
• If a court denies an application for a CQE, the
court must provide written notice of the denial to
• Following a denial, the court may place
conditions on reapplication.
• A person denied a CQE by a court may appeal
to the court of appeals. The court’s denial will
be reviewed under an abuse of discretion
• CQEs: Immunity
Like the certificate of achievement and
employability, the CQE affords employers
who rely upon it immunity in negligent
hiring actions and qualified immunity in
negligent retention lawsuits filed against
them on the basis of acts committed by
their employee-certificate holders.
• CQEs: Revocation
A CQE is presumptively revoked if the
certificate holder, after receiving the
certificate, is convicted of any felony
• Senate Bill 337 prohibits the following agencies from
denying licenses on the basis of a prior criminal history,
unless the offense is a “disqualifying offense” or crime
of moral turpitude.
(1) Ohio Optical Dispensers Board
(2) Registrar of Motor Vehicles (with respect to motor vehicle
salvage dealers, motor vehicle auctions, and salvage motor
(3) Construction Industry Licensing Board
(4) Hearing Aid Dealers and Fitters Licensing Board
(5) Public Safety (with respect to private investigators and
“Disqualifying offense” is defined as “an offense that is a felony and
that has a direct nexus to an individual’s proposed or current field of
licensure, certification, or employment.”
Crime of “moral turpitude” is defined as:
(1) Aggravated murder or murder, or complicity to commit aggravated
murder or murder.
(2) Any sexually oriented offense.
(3) Any first or second degree offense of violence.
(4) Any attempt or conspiracy to commit or complicity in committing any
of the offenses listed in (1) through (3), above, if the attempt,
conspiracy, or complicity is an F1 or F2.
• Exception: The licensing board or agency
may exercise discretion in denying the
license, even if the conviction was for an
offense other than a disqualifying offense
or crime of moral turpitude if:
o The applicant was convicted of a
misdemeanor less than one year or a felony
less than 3 years prior to the date of the
• Conditional Licenses
Senate Bill 337 authorizes a licensing
agency to issue a conditional license,
certification, or permit that lasts for one
year, after which time the conditional
license, certification, or permit becomes
• Trainee Licenses
Senate Bill 337 specifies that no agency that
issues a trainee license may issue that
license to an applicant who would not be
eligible for issuance of a license,
certificate, registration, permit, card, or
other authority to engage in the profession
or operation for which the trainee would
• Definition of “Trainee License”
A license, certificate, registration, permit,
card, or other authority that is issued by
any licensing agency that authorizes the
holder to engage as a trainee in a
profession, occupation, or occupational
activity, or to operate as a trainee certain
specific equipment, machinery, or
• State Board of Cosmetology-specific
(1) Senate Bill 337 prohibits the Board from
denying certification on the basis of prior
incarceration or conviction for a crime.
(2) Senate Bill 337 requires the Board to
assist ex-offenders and military veterans
who hold licenses to find employment.
• Casino Control Commission-specific provisions
(1)Requires the Commission to provide a written statement to
each applicant who is denied a license that describes the
reason(s) for the denial.
(2)Requires that, not later than January 31 in each calendar
year, the Commission provide to the General Assembly and
the Governor a report that, for each type of license issued
under the Casino Control Law, specifies the number of
applications made in the preceding calendar year for each
type of such license, the number of applications denied in the
preceding calendar year for each type of such license, and
the reasons for those denials.
• Under prior law, an individual could not
petition his or her sentencing court to have
the record of a criminal conviction sealed
unless the individual was a first offender
(i.e., the individual could have no more
than one felony or misdemeanor
conviction in any jurisdiction in the
• Senate Bill 337 expands eligibility for record sealing to
offenders who satisfy one of the following conditions:
(1) The offender has no more than one felony
(2) The offender has no more than two misdemeanor
convictions if the convictions are not for the same
(3) The offender has not more than one felony
conviction and not more than one misdemeanor
• As a general rule, the records of
convictions involving child victims cannot
be sealed. This has been interpreted as
including convictions for nonsupport.
• Senate Bill 337 removes the prohibition
against sealing the records of nonsupport
convictions, provided that the offender
applying for sealing otherwise qualifies to
have the records sealed.
• Imputed Income: Generally
When a parent’s income is determined as
part of the child support calculation, the
court or child support enforcement agency
(CSEA) must consider not only the
parent’s gross income, but also any
potential income that is imputed to a
parent who is voluntarily unemployed or
• Imputed Income: Current Interpretation
Ohio appellate courts have generally held
that a parent’s incarceration constitutes
voluntary unemployment or
• Imputed Income: New Exclusion
Senate Bill 337 prohibits a court or CSEA from determining that a
parent is voluntarily unemployed or underemployed and from
thereby imputing income to that parent if the parent is incarcerated
or institutionalized for a period of 12 months or more with no other
EXCEPTIONS: This requirement does not apply if the parent is
incarcerated for an offense relating to the abuse or neglect of a child
who is the subject of the support order or criminal offense when the
obligee or a child who is the subject of the support order is a victim
of the offense. Further, this requirement does not apply if its
application would be unjust or inappropriate and therefore not in the
best interests of the child.
• Imputed Income: Current Factors
In determining imputed income, current law
requires the court or CSEA to consider a number
of factors, including, but not limited to, the
parent’s employment history; the parent’s
education, mental, and physical disabilities; the
parent’s social skills and training; and the
parent’s increased earning capacity because of
• Imputed Income: New SB 337 Factor
Senate Bill 337 includes an additional factor
in determining imputed income: the
parent’s decreased earning capacity
because of a prior felony conviction.
• Discretionary Disregard of Additional
Senate Bill 337 specifies that a court or CSEA may
disregard a parent’s additional income from
overtime or additional employment when the
court or CSEA finds that the additional income
was generated primarily to support a new or
additional family member or members, or under
other appropriate circumstances.
• Multiple Orders
Senate Bill 337 provides that if both parents involved in the
immediate child support determination have a prior order
for support for a minor child or children born to both
parents, the court or CSEA must collect information
about the existing order or orders and consider those
together with the current support calculation to ensure
that the total of all orders for all children of the parties
does not exceed the amount that would have been
ordered if all children were addressed in a single judicial
or administrative proceeding.
• Certain DUS Violations-Penalty Reductions
Senate Bill 337 specifies that if a person is
convicted of DUS and the suspension was
imposed for one of a number of offenses in
which driving was not one of the main elements
of the offense, the offense is an unclassified
misdemeanor (same as existing law) on a first
offense and an M4 on a third or subsequent
offense within three years (lowered from an M1).
• DUS Penalty Reductions (continued):
Applies to the following DUS offenses:
(1) Disposition of an unruly child.
(2) Possession, use, purchase, or receipt of cigarettes or
other tobacco products by child.
(3) Failure to appear in court to answer a citation issued for
any of a number of specified minor misdemeanors.
(4) Being in default or noncompliance with child support
(5) Violation of certain provisions relating to beer or
• DUS Penalty Reductions (continued):
(6) Failure to appear to answer a charge alleging a specified motor
vehicle operation or equipment violation or a general motor vehicle-
related violation, or to pay a fine imposed for such violation.
(7) Use of a fictitious or altered driver’s license or a driver’s license
belonging to another person by a person under 21 in order to
purchase beer or intoxicating liquor.
The bill eliminates all other penalties that previously applied to DUS
based upon offenses (1) through (7), above, including filing proof of
financial responsibility with the court, restitution, an additional
suspension, and immobilization or forfeiture of the vehicle.
• Financial Responsibility Violations/Nonpayment of
Senate Bill 337 provides that if a person is convicted of
DUS and the suspension was imposed for violating the
state financial responsibility law, the offense is an
unclassified misdemeanor on a first offense (same as
existing law) and an M4 on a third or subsequent offense
within three years (lowered from an M1). The bill
eliminates all other penalties that currently apply to the
offense, including filing proof of financial responsibility
with the court, restitution, an additional suspension, and
immobilization or forfeiture of the vehicle.
• Community Service in Lieu of Suspension
For the following offenses, Senate Bill 337 provides that the court, in lieu of
imposing a suspension, may order community service:
(2) Theft of gasoline from a retail seller.
(3) Illegal conveyance of a deadly weapon or dangerous ordnance into a school
(4) Consumption of beer or intoxicating liquor in a motor vehicle by a person
(5) Giving false information in order to purchase beer or intoxicating liquor by a
person under 21.
(6) Trafficking in cigarettes while using a motor vehicle.
In addition, for the offenses listed in (1), (4), (5), and (6), above, Senate Bill 337
changes the mandatory suspension that applied under prior law to
• Nonsupport-Related Suspensions: Limited
Senate Bill 337 permits a court, in connection with a
contempt action filed against a person for failure to
pay support, to grant limited driving privileges to a
person whose driver’s license is suspended by the
Registrar of Motor Vehicles because the Registrar
received a notice from a CSEA indicating that the
person is in default or noncompliance under a child
• Reinstatement Fees
Senate Bill 337 permits the Registrar of Motor
Vehicles, with approval from the Director of
Public Safety, to adopt rules that permit a person
to pay reinstatement fees in installments.
(Senate Bill 337 maintains a provision in current
law, which allows courts to permit individual
offenders to pay driver’s license reinstatement
fees in installments.)
• Financial Responsibility Provisions
Senate Bill 337 eliminates the requirement that the
Registrar of Motor Vehicles suspend the driver’s
license of any person who is named in a motor
vehicle accident report that alleges that the
person was uninsured at the time of the accident
and then fails to give the Registrar acceptable
proof of financial responsibility.
• Financial Responsibility Provisions (continued)
Senate Bill 337 modifies some of the civil penalties that apply to a
person who does not maintain proof of financial responsibility:
(1) Subject to (2) and (3), below, changes the period of suspension from
a Class E (three months) to a Class F (until conditions are met) and
also eliminates a provision that conditions limited driving privileges
on the presentation of proof of financial responsibility and payment
of all fees owed to the Registrar.
(2) Does not change the civil penalties that apply with respect to a
person whose operating privileges are again suspended and license
again impounded for such a violation, within five years of the
(3) Authorizes a court to grant limited driving privileges to offenders
described in (2), above.
• Fifteen-Plus Year License Suspensions
Senate Bill 337 provides a new set of circumstances that a person whose
driver’s license has been suspended for life (Class 1) or for a period in
excess of 15 years (Class 2) may demonstrate to the court in order to
be granted a modification or termination. The bill authorizes
modification or termination for offenders who demonstrate that they
have not had a moving violation within five years; have not committed a
vehicular homicide or manslaughter; and, in the preceding five years,
have not violated a suspension. As under preexisting law, the offender
must also have proof of insurance. If the suspension was imposed for
an OVI, the offender must also have completed a treatment program
and, for the past 15 years, the person has not been found guilty of any
alcohol-related or drug-related offense. (Prior law required that the
offender not have any felony conviction within the preceding 15 years.)
• Motor Vehicle Equipment Violations
The bill lowers the penalties for the following
offenses, establishing each as a minor
misdemeanor in all circumstances:
(1)Driving or moving a vehicle or combination of
vehicles in a manner that endangers any
person. (Under prior law, the offense was a
MM on a first violation and M3 on each
• Motor Vehicle Equipment Violations
Lowered Penalties—MM in all circumstances (continued):
(2) Operating on the public roads a vehicle that is registered in Ohio
and does not conform to the statutory provisions or rules governing
the height of bumpers or modifying a vehicle in a dangerous
manner. (Under prior law, the offense was a MM on a first violation
and M3 on each subsequent violation.)
(3) Certain motor vehicle equipment violations and all other motor
vehicle equipment violations for which no penalty was otherwise
provided. (Under prior law, the offenses for which the penalties
were lowered were previously MM’s on a first violation, M4’s on a
second violation within one year of the first violation, and M3’s on
each subsequent violation within one year after the first violation.)
• BMV Amnesty Study Committee
Senate Bill 337 requires the Department of Public
Safety to conduct a study on the advisability and
feasibility of establishing in Ohio a one-time
amnesty program for the payment of fees and
fines owed by persons who have been convicted
of motor vehicle traffic and equipment offenses
or have had their driver’s licenses suspended
for any reason.
• Places of Detention: Age Thresholds
Prior law authorized juvenile courts to order
the confinement of persons adjudicated a
delinquent child after turning 18 in places
other than those authorized solely for
confinement of children. Senate Bill 337
increases the threshold age to 21.
• Places of Detention: New Hearing Procedure
Senate Bill 337 specifies that any person whose
case is transferred to another court for criminal
prosecution or any person who has reached the
age of 18 but not attained 21 may be held in a
place other than those authorized solely for the
confinement of children only if, after a hearing,
the juvenile court finds by a preponderance of
the evidence that the youth is a threat to the
safety and security of the facility.
• Places of Detention: Hearing Factors
Factors serving as evidence that a youth is a threat to safety and
security include, but are not limited to:
(1)The youth has injured or created imminent danger to the life
or health of another youth or staff member by violent
(2)On more than one occasion, the youth escaped from the
facility or program in which the youth is being held.
(3)The youth established a pattern of disruptive behavior by
written record that the youth’s behavior is not conducive to
the established policies and procedures of the facility or
program where the youth is being held.
• Places of Detention: Review Hearings
If the juvenile court determines that a place other
than those generally considered to be for the
placement of children is appropriate, the person
may petition the juvenile court for a review hearing
30 days after the initial confinement decision, 30
days after any subsequent review hearing, or at
any time after the initial confinement decision upon
an emergency petition by the youth due to the
youth facing imminent danger.
• Sealing Juvenile Records
Prior law prohibited the sealing of records of
a juvenile adjudication for committing
aggravated murder, murder, rape, sexual
battery, or gross sexual imposition (GSI).
Senate Bill 337 removes sexual battery
and GSI from the list of offenses for which
the records may not be sealed.
• Sealing Juvenile Records: Application
Senate Bill 337 reduces from two years to
six months the period of time that must
elapse following the termination of a
juvenile court order or discharge from
DYS, as the case may be, before a person
may apply to the juvenile court for sealing
of the record of the adjudication.
• Sealing Juvenile Records: Criminal
Senate Bill 337 excludes most juvenile proceedings
and adjudications from criminal records checks.
Exception: The bill permits the release of
information pertaining to juvenile adjudications
under which the juvenile court, pursuant to a return
bindover, imposed an SYO disposition upon the
person for aggravated murder, murder, or a sex
offense for which the person is required to register.
• Moving the “have you been
convicted of a crime?” box on
state applications – a
collaboration between DRC and
• Online database about the civil impact of
• The website provides an online database
and search tools that allow users to learn
about the collateral consequences of a
conviction in Ohio.
• Using the CIVICC database, you can:
(1) Look up a criminal offense and find out what legal
barriers are likely to apply in addition to the sentence.
(2) Look up a particular right or privilege and find out
what type of criminal conviction might block a convicted
person from enjoying it.
(3) Search for all of the legal side effects of a certain
type, such as all of the barriers to employment in a
• The database can be found at: opd.ohio.gov/CIVICC/
Andre R. Imbrogno
Ohio Parole Board