In Ohio, a first-time offender charged with a criminal offense as an adult and who has no prior criminal convictions may be eligible for pretrial diversion programs such as the municipal court’s First Offender Program (FOP).
A criminal defense attorney can assist a defendant, the person charged with the offense, by showing the court why that person is a good fit for an FOP. Courts typically offer FOP as an alternative to prosecution. A defendant who successfully completes the terms of the FOP will see their criminal charge dismissed.
Terms of an FOP Agreement
A defendant who wants to be considered for placement in a court’s FOP is required to agree to the court’s terms for the program. These typically include:
- Not having been convicted of another criminal offense; not having a criminal record.
- Never having completed an FOP in the past.
- Pleading no contest to the charge.
- Report to probation officer as often as once a week.
- Obey all local, state and federal laws.
- Contact their probation officer within 24 hours if they are arrested, convicted or contacted by a law enforcement agency or by campus security if they are a college student.
- Not to incur new criminal charges during the FOP.
- Consume no alcohol or nonprescription drugs.
- Submit to a breath, urine or blood sample to their probation officer, if requested.
- Remain in Ohio unless they have permission from their probation officer to leave.
- Perform community service as directed by their probation officer.
- Pay for FOP costs and court costs.
- Pay police response costs, if applicable.
- Pay restitution, or financial damages, to the victim, if applicable.
- Pay costs to erase or seal their records about this case and complete the process of erasing or sealing their arrest records about this case.
- Pay installments of $50 a month to the court for FOP costs.
- Not to purchase, own, possess, use or have under their control any deadly weapon, firearm or dangerous ordnance like an explosive.
- Attend up to seven Alcoholics Anonymous and/or Narcotics Anonymous meetings per week, if required by their probation officer.
- Follow all FOP terms and court orders generally and specifically pertaining to their case, including evaluation, testing and treatment for substance abuse, mental health, anger management, domestic violence, parenting or special classes at an educational facility. Further, it may include taking medication or attending counseling.
- Authorize release of medical information to probation officer and court.
- Pay charges incurred by the municipality that suffered expense because of their criminal act.
- Serve up to five days of jail time.
- Attend class about stealing if charged with theft or receiving stolen property.
Typically, an FOP lasts one year unless the court specifies otherwise. For high school and college students, an FOP will last at least through the end of the current academic school year.
Penalties for First Offenses
If a court determines an individual is not eligible for its FOP or fails to complete the FOP successfully, the judge may require them to complete a jail or prison sentence, a fine and other penalties.
According to Ohio law, the term of incarceration and the fine depend on the severity of the crime. For example, the maximum penalty for a first-degree misdemeanor is up to 180 days in jail and a fine up to $1,000.
When a Defendant is Charged with a Felony
If a defendant is charged with a felony and is not eligible for an FOP, the court may sentence them to a term of probation. The length of the probation is determined by the severity of the offense. Incarceration is mandatory for some felonies, but not all.
For example, for a fifth-degree felony charge, the court has discretion to sentence the defendant for a period up to two years.
For a first-degree felony conviction, the court must sentence the defendant to a mandatory minimum prison term of two years, but may sentence them up to a maximum of five years. A prison term of five years is mandatory for first-degree felonies that are sex offenses.
Who Is Not Eligible for FOPs
FOPs are not open to certain types of offenders, including:
- Repeat offenders with a history of persistent criminal activity, whose character and condition reveal a substantial risk that they will commit another offense.
- Dangerous offenders who have committed a prior offense and whose history, character and condition reveal a substantial risk that they will be a danger to others; whose conduct has been characterized by a pattern of repetitive, compulsive or aggressive behavior with heedless indifference to the consequences.
- Offenders charged with death caused by automobile, such as vehicular manslaughter.
- Offenders charged with certain sex offenses, including unlawful sexual conduct with a minor and compelling prostitution.
- Offenders charged with certain offenses related to abortion, including unlawful abortion.
- Offenders charged with endangering children.
- Offenders charged with certain offenses involving dishonesty, including safecracking, perjury, bribery, tampering with evidence and obstructing justice.
- Offenders charged with unlawful transaction in weapons.
- Offenders charged with kidnapping, abduction or interference with custody.
- Offenders accused of drug or controlled substance offense.
Prosecutor Discretion for FOP
A prosecutor may permit individuals accused of these offenses to enter an FOP if the prosecutor finds that:
- Accused did not cause, threaten or intend serious physical harm to any person.
- Offense was the result of circumstances not likely to recur.
- Accused has no history of prior delinquency or criminal activity.
- Accused led a law-abiding life for a substantial time before committing alleged offense.
- Substantial grounds exist that tend to excuse or justify the alleged offense.
Further, a prosecutor may permit a defendant charged with certain crimes to enter an FOP:
- Misdemeanor, fifth-degree felony or fourth-degree felony violation of possession of a controlled substance.
- Misdemeanor violation of permitting drug abuse, possession of drug abuse instruments, such as a syringe or possession of drug paraphernalia such as a scale to measure drugs.
- Operating a vehicle under the influence of alcohol or drugs (OVI) or a substantially similar municipal ordinance.
- Offense that would disqualify the person from operating a commercial motor vehicle or subject them to any other sanction under Chapter 4506 of the Ohio Revised Code, which concerns commercial motor vehicles.
- Chardon Municipal Court, Ohio: First Offender Program (FOP)
- Ohio Revised Code: Section 2929.24 Definite Jail Terms for Misdemeanors
- Ohio Revised Code: Section 2935.36 Pre-trial Diversion Programs
- Shaker Heights Municipal Court, Ohio: Request for Placement in the First Offender's Program
- Ohio Supreme Court: Felony Sentence Reference Guide
- Ohio Revised Code: Section 2929.28 Financial Sanctions - Misdemeanor
- Ohio Revised Code: Chapter 4506 Commercial Driver's Licensing
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.