On September 30, 2011, HB 86 becomes law. In addition to many other major improvements to Ohio’s criminal sentencing provisions, HB 86 expands the eligibility for this deferred prosecution agreement to mental health offenses, certain repeat offenders, theft offenses, felony nonsupport offenses, unauthorized use of a motor vehicle (UUMV), passing bad checks (PBC), misuse of credit cards,forgery, F5 drug trafficking offenses, F4 drug possession, and folks with “intellectual disabilities”. In other words, criminal behavior triggered by alcohol, drugs, mental health issues or intellectual disabilities can now apply for treatment instead of convictions.
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The statute is R.C. 2951.041. For the lawyer slogging away in the trenches, it is imperative that the existing ILC Petition get amended accordingly. The best practice is to create your own Motion and do not rely on the work product of others. Also, it i required that the lawyer specifically state whether he/she seeks ILC for alcohol, drugs, menthal health, or intellectual disability.
Also, lawyers need to review the statute for eligibility for their clients. There are some cases that will require the consent of the prosecuting attorney.
Drug trafficking offenses at the F5 level are now eligible for ILC. For F4 trafficking cases, it is advisable to seek either an amendment to an F5 or find an F5 Lesser Included Offense. Also, Drug Possession cases at the F4 level do not need the prosecutor’s approval under HB 86.
Who are not ILC elgible under the expanded ILC statute? offenses of violence, F1’s, F2’s and F3’s, OVI / DUI, and vehicular homicide / assault, offenses with [new] mandatory prison terms, and drug traffickers at the F4 and above level.