Tuesday, March 29, 2011

How much marijuana is too much marijuana?

Answer: complicated.

The law as it is –

     As it currently stands in this great Commonwealth, a person who is knowingly in possession of any amount of marijuana is committing a Class A misdemeanor.  That means the penalty can be a fine, or jail time up to one year, or both.  “Any amount” of marijuana can include resin or residue in a pipe or other paraphernalia, shake (left in a grinder, the floorboard of a vehicle, or in your carpet by the coffee table), marijuana seeds, etc.
     Actual trafficking in marijuana can include more than just selling marijuana to someone else.  To “traffic” means to manufacture, distribute, dispense, sell, transfer OR possess with the intent to manufacture, distribute, dispense, or sell.  A key word in that definition is “transfer.”  This means that giving a buddy a joint, or passing a bowl in the circle, equals “trafficking in marijuana.”
     Currently, trafficking in less than eight (8) ounces of marijuana is a Class A misdemeanor (the second or subsequent offense is a Class D felony).  Trafficking in more than eight (8) ounces but less than five (5) pounds is a Class D felony (the second or subsequent offense is a Class C felony).  Trafficking in more than five (5) pounds is a Class C felony (the second or subsequent offense is a Class B felony).
     When people ask me “how much marijuana is too much marijuana for simple possession?” they are asking if there is an amount which might trigger a presumption that one intends to traffic.  There is a statutory answer, and then there is the REAL answer.  Under the Kentucky marijuana trafficking statute, possession of eight (8) ounces or more is prima facie evidence that the possession occurred with the intent to traffic.  So the statutory answer is “eight ounces.”
     The real answer is more like an ounce or so, if you’re talking about weight alone.  I’ve seen many clients who only possessed about an ounce of marijuana, and based on weight, they were charged with trafficking.  In addition to weight, other evidence might be considered by a police officer when deciding how to charge someone with either marijuana possession or trafficking.  If you have substantially less than an ounce, but you also have any of the following in your possession: scales, baggies, twist ties, a large amount of cash, etc., in addition to the marijuana, a police officer will likely charge you with trafficking.

The law is changing –
     House Bill 463 has been signed into law.  Most of the provisions of the bill will become effective on June 8, 2011 (there are five sections that were effective immediately upon the Governor’s signature, and five sections that are delayed).  This new Kentucky law is going to drastically change marijuana possession, trafficking, and the procedure associated with both. 
     Let me take a little detour here for a moment.  Kentucky has been moving in the right direction, slowly but surely, concerning marijuana.  While 15 states have taken steps to decriminalize marijuana for medicinal purposes, Kentucky has made some slow changes in the right direction.  In April of 2010, the law was changed concerning the possession of paraphernalia – what used to be a felony offense for the second or subsequent possession is now a non-enhanceable offense.  In addition to the change in the paraphernalia statute, HB 463 is making some very significant changes that will affect people charged with Kentucky marijuana charges.
     First, simple possession of marijuana will drop from a Class A misdemeanor to a Class B misdemeanor.  An imposition of a “jail cap” will be placed on the charge as well, limiting the penalty to forty five (45) days instead of the ninety (90) day maximum which normally accompanies a Class B misdemeanor.
     HB 463 will also change the range of “near school” trafficking from 1000 yards to 1000 feet.  This is a drastic change considering trafficking near a school is a Class D felony, and because a lot of Kentucky towns are very small (such that, in extremely small areas, the vast majority of residences are within 1000 yards of a school).
     Most importantly, HB 463 will require police officers to give a citation for simple marijuana possession in lieu of an arrest.  This is evidence of the Kentucky Senate’s evolving mentality toward relatively harmless drugs and the incarceration of alleged offenders.  For all of those people who have been angry about tax payer money being spent (to the tune of about $20,000 per year) to house citizens charged with simple marijuana possession, this is fantastic news.  Clearly, this great Commonwealth can use that money in a manner which provides a greater benefit to its citizens.  For example, by housing people who are truly dangerous.
     The foregoing has been a VERY brief overview of Kentucky marijuana laws and the changes which are occurring to the same.  For a more in-depth analysis, see a lawyer for a consultation.


SUNDAY, JUNE 5, 2011

As of Wednesday, You Cannot be Arrested for (only) Smoking Marijuana in Public.

Want to watch the law change?  You can physically see the big changes happening to Kentucky law, right before your eyes.

Many of the changes (brought to you by the letters HB and the numbers 463) to the Kentucky Revised Statutes are taking place this week.  Significant parts of House Bill 463 are solidifying as law on June 8, 2011 (which is this Wednesday).  And if you go to the KRS online, you can physically watch the changes taking place.  

If you click on the above link, you will see both the old and the new law posted under KRS 218A.1422, the Possession of Marijuana statute.  This double entry of the law evidences the change in Kentucky law - where the possession of marijuana has previously been a Class A misdemeanor, but as of June 8, 2011, it will be a Class B misdemeanor with a 45 day jail cap.  Any Louisville drug charge lawyer will tell you that this is significant de-criminalization, because a Class A misdemeanor carries up to twelve (12) months in jail.  In short, as of June 8, 2011, the maximum penalty for marijuana possession will be about 12% of what it previously has been.  Big change.

I’m not sure why, but some of the KRS changes are already posted without the previous laws.  For example, KRS 218A.1411, which governs Trafficking in Controlled Substance in or Near School, already has the changed law posted.  HB 463 has reduced the geographic scope of what will be considered “near” a school from 1000 yards to 1000 feet.  The statute has the “effective date” listed as June 8, 2011.  So technically, the current law is not posted on the KRS website.  This makes for a really sticky situation for everyone who gets arrested from now until Wednesday for Trafficking Near a School.  I believe that anyone who engages in trafficking within 1000 yards of a school between now and June 8, 2011 would have a very solid argument that the law posted by our great Commonwealth is the law that governs their actions.  Hopefully my clients will never have to find out whether I’m right.

The most significant change, I believe, is the change to KRS 431.015.  This statute previously granted the discretion to police officers to decide whether to arrest someone for a misdemeanor offense, or to give them a citation.  The change is simply massive.  It takes a good deal of discretion away from the officer, and requires that they just write a citation for a lot of non-violent, less dangerous misdemeanors.  For example, a person smoking marijuana in public cannot be arrested in Kentucky as of June 8, 2011.  The police will have to issue them a citation, just like they would for a speeding ticket.  Let’s take a look at the specific language of the KRS, because it is pretty important.  I am not going to post the entire Section, because the change we are talking about really just occurs in Subsection (1).  Pay attention to how the language “may issue” changes from the old statute to the new.

Here is the old law:

431.015   Citation for misdemeanor -- Failure to appear.
(1) A peace officer may issue a citation instead of making an arrest for a misdemeanor  committed in his presence, if there are reasonable grounds to believe that the person being cited will appear to answer the charge. The citation shall provide that the defendant shall appear within a designated time.

Here is the new law:

431.015   Citation for misdemeanor -- Arrest for certain misdemeanors -- Failure to appear.
(1) (a) KRS 431.005 to the contrary notwithstanding, and except as provided in paragraphs (b) and (c) of this subsection, a peace officer shall issue a citation instead of making an arrest for a misdemeanor committed in his or her presence, if there are reasonable grounds to believe that the person being cited will appear to answer the charge. The citation shall provide that the defendant
shall appear within a designated time.
(b) A peace officer may make an arrest instead of issuing a citation for a misdemeanor committed in his or her presence if the misdemeanor is:
1. A violation of KRS Chapter 508, 510, or 527, or KRS 189A.010;
2. An offense in which the defendant poses a risk of danger to himself, herself, or another person; or
3. An offense in which the defendant refuses to follow the peace officer's reasonable instructions.
(c) A peace officer shall make an arrest for violations of protective orders issued pursuant to KRS 403.715 to 403.785.

As a qualifier to the previous statement about how “as of June 8, 2011 a person in Kentucky cannot be arrested for smoking marijuana in public” please note that if any of the conditions present in subsections (b) or (c) are present, someone can be arrested.  Consider the following scenario:

Police Officer:  Excuse me, ma'am.  Are you smoking a marijuana cigarette?

Ma'am:  Yup.

Police Officer:  Would you kindly extinguish that marijuana cigarette?

Ma'am:  Nope.

Police Officer:  Well then, you are under arrest. (Police Officer handcuffs Ma'am and thrusts her into the back of a police cruiser) (End Scene)

The preceding dialogue is an example of how one might get arrested based on subsection (b)(3).  I knew that theatre degree would really come in handy one day.  Obviously, refusing to cease illegal activity would constitute a refusal to follow a peace officer’s reasonable instructions. 

Please keep in mind that I expressly advise against smoking marijuana in public.  It’s a really good way to establish probable cause to get you searched.  Further, if a police officer sees you sharing a joint with a friend or fellow Phish concert attendee, you can both be charged with trafficking in marijuana.  The simple act of “transferring” marijuana constitutes trafficking under KRS 218A.010, subsection (42).  And as of right now, if it is your second or subsequent offense, passing that joint can be a felony under KRS 218A.1421.

Also, for all of my marijuana reform readers – I’ve had more than a couple of people talk about how they think it would be a great idea to organize some sort of “smoking in public” day, where a bunch of people would meet up and light up in public because the law is changing.  There are a lot of perils of “trafficking” that would come along with that circus, as mentioned above.  However, I do NOT believe that organizing such an event would constitute “engaging in organized crime (as one person has expressed concern about the same), because it doesn’t rise to the level of the statute.  Here is the applicable subsection of KRS 506.120 –

"criminal syndicate" means five (5) or more persons, or, in cases of merchandise theft from a retail store for the purpose of reselling the stolen merchandise, two (2) or more persons, collaborating to promote or engage in any of the following on a continuing basis:
(a) Extortion or coercion in violation of KRS 514.080 or 521.020;
(b) Engaging in, promoting, or permitting prostitution or human trafficking in violation of KRS Chapter 529;
(c) Any theft offense as defined in KRS Chapter 514;
(d) Any gambling offense as defined in KRS 411.090, KRS Chapter 528, or Section 226 of the Constitution;
(e) Illegal trafficking in controlled substances as prohibited by KRS Chapter 218A, in intoxicating or spirituous liquor as defined in KRS Chapters 242 or 244, or in destructive devices or booby traps as defined in KRS Chapter 237;
(f) Lending at usurious interest, and enforcing repayment by illegal means in violation of KRS Chapter 360

The definition of “criminal syndicate” does not include smoking marijuana, or the organization of a marijuana related rally.  Again, none of this should be construed as advice advocating marijuana use.  Those funny little plants are certainly still illegal.

Criminal charges are serious.  If you have been charged with a drug offense in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, please visit www.louisvillefirm.com.  Or you can call one of our experienced Louisville drug charge lawyers at 502.473.6464.  The initial consultation is free.

Results.  As fast as the law will allow.

Questions answered in this blog post:  What are the changes in HB 463, How many feet is trafficking near a school, can a police officer arrest me for smoking marijuana in public, in Kentucky, how much weed can be a felony, is a marijuana rally “organized crime”, is possession of marijuana a misdemeanor or felony.

     Possessing marijuana is still a crime in Kentucky, regardless of the amount.  However, possession of an ounce or more, or any other evidence of trafficking, can get you into much more serious trouble.  If you have a marijuana charge in Louisville, Lexington, Elizabethtown, Frankfort, or the surrounding areas, you should talk to an attorney about your charge.  Greg Simms has handled numerous marijuana charges, from possession to trafficking to cultivation.  If you have a Kentucky marijuana charge, call 502.473.6464 for a free consultation with an experienced drug charge lawyer.

Questions answered in this blog post: how much weed is trafficking in Kentucky, what actions constitute trafficking in marijuana, what are the changes in law from house bill (HB) 463, how much marijuana can I carry without intent to sell/sale, is marijuana possession a misdemeanor or felony, is paraphernalia a felony, is paraphernalia an enhanceable offense, is possession of marijuana seeds considered possession of marijuana.

Sunday, March 20, 2011

If I was arrested and charged with a crime I didn’t commit, and the case was dismissed, can I sue the police officer/police department?

The answer to this question is, “Probably.”  Allow me to explain.

Let me start by saying that there are a lot of great police officers out there.  The good ones do a dangerous job for little pay, just because they want to give back to their communities.  We applaud the good ones.  But not all of them are good ones.  Some police officers abuse their authority and engage in false arrests and police brutality.  The sad part, is when they abuse their authority, most citizens are basically helpless against them. 

If you have been charged with a crime you didn’t commit, and the criminal case ended favorably for you, you may be able to sue to recover damages for your pain and suffering, lost wages, attorney’s fees, and possibly punitive damages.

Jury trial “Not Guilty” verdict:

There are a couple of ways for a criminal case to end favorably for you.  If you went to a jury trial and were found Not Guilty, congratulations!  It is fairly easy to move forward with a civil case after a Not Guilty verdict is returned.  You don’t need to worry about the “stipulation of probable cause” section that is to follow.  You should see an attorney immediately about your possible civil case against the officer/police department.  You can feel free to skip to the “meeting with an attorney about your civil case” section.

Stipulation of probable cause:

If you have a current criminal case against you, please be advised that if you stipulate probable cause for your arrest, it can negatively affect your possible civil case against the officer/police department.  Often, if a prosecutor agrees to recommend dismissing your case, they will want you to agree to stipulate probable cause for the arrest.  This means that you agree that the officer had the right to arrest you at the time of the arrest.  If you agree, and stipulate probable cause, it can make things very difficult in a civil case against the officer/police department - especially if your case is for false arrest, rather than police brutality.  You may even have difficulty getting past Summary Judgment.  If a judge grants Summary Judgment against you, your civil case will be dismissed.

In short, a stipulation of probable cause in a criminal case can be very damaging to your possible false arrest case.  If your primary concern is to pursue a false arrest case, you should not stipulate probable cause for the arrest.

Meeting with an attorney about your civil case:

Most attorneys will not charge you for an initial consultation.  We will sit down with you, hear your story, and make a determination as to whether we will take your case, and not charge you for the consultation.  When you call an attorney, always ask if the first consultation is free.  Once you see an attorney about your case, make sure you understand how the attorney’s fees will be collected. 

For example, I take false arrest and police brutality cases on contingency fees.  This means that I collect my legal fee from the money that is recovered in the lawsuit.  I also front the costs of litigation, so that a client won’t have to pay out of pocket for filing fees, depositions, expert witnesses, etc.  Those costs can be very expensive, so make sure you ask an attorney about who will pay the costs of litigation.  At the end, assuming we recover against the police officer/police department or the insurance company that insures them, I re-coup the costs of litigation from the amount of money recovered.  If I don’t recover for you, you don’t pay me any money.

The damages in false arrest/police brutality cases vary from case to case, and every case is different.  The amount of money recovered depends on the degree of negligence/intentional conduct on the part of the officer, the amount of injury sustained by the plaintiff, and the insurance coverage available.

Statutes of Limitations:

The Commonwealth of Kentucky has statutes of limitations which limit the time available to file a lawsuit.  If the time allotted by the statute of limitations passes (or, “runs”), then your civil suit can be barred forever.  That makes it very important for you to contact an attorney as soon as possible.


A lot of attorneys don’t take false arrest/police brutality cases.  Therefore, when you are looking for an attorney to take your case, make sure the attorney has had experience with these kinds of cases.  At Gruner & Simms, PLLC., we have handled numerous false arrest and police brutality cases.  If you have a possible civil case against a police officer or police department, call 502.618.4949 for a free consultation with an experienced false arrest and police brutality lawyer.

Results.  As fast as the law will allow.

Questions answered in this blog post: What can be done about police brutality; can I sue for false arrest; what lawyers take false arrest cases; how do I find a good Louisville police brutality lawyer; what is a civil rights lawsuit; what is stipulation of probable cause; how does a stipulation of probable cause affect a false arrest/police brutality claim; what is the statute of limitations on a civil rights lawsuit; what is the statute of limitations on a false arrest/police brutality claim; explain how lawyer fees work; what is a contingency fee; how can I find a good Lexington false arrest/police brutality lawyer?

Thursday, March 17, 2011

DUI - How to handle a DUI stop “Have you been drinking tonight?” question.

One frequent question I get (especially if I am having a drink with someone) is: “If I get pulled over and the cop asks me if I’ve been drinking, what should I tell the cop?”

The answer is, “It depends.”  Which is annoying, because all the person usually wants is some sort of magic phrase that will get them out of trouble. Or maybe they want my permission to lie to a police officer, which I don’t ever advise.  The longer answer is as follows:

If you haven’t been drinking and don’t have any contraband in the car, feel free to just tell the police officer that you haven’t been drinking.

That being said, I have a lot of clients who would have been a lot better off if they had just remained silent.  You have the right to do that.  Remember Dragnet?  And basically every single cop/lawyer show since Dragnet?  “You have the right to remain silent” is the first, most important, and very frequently ignored portion of the Miranda warnings.

[If you feel bad about “hiding” information from the police, just remember – the right to remain silent is an essential part of your Constitutional Rights.  You are not a bad person for invoking your rights as an American.  Trust me.  I know a lot of bad people.  Invoking your rights doesn’t make you one of them.]

If a police officer asks you if you’ve been drinking, and you have, your answer should be something like this:  “I wish to remain silent.”

Or, if you think that makes you sound guilty, you could say, “I have an attorney.  His/Her name is _________.  If you have any questions, you can call him/her.”  Some of my clients believe that this answer makes them sound less “guilty” and more “paranoid.” 

You do not have to divulge the whole truth to the police officer.  You can remain silent.  Cops are not your friends.  They are not trying to help you.  Do not help them build a case against you.

The key to remaining silent is not to be silent at first, but then answer the police officer’s next question.  If at first, you say “I have an attorney.  His name is Greg Simms.  If you have any questions, you can call him.”  But then the police officer asks, “Where are you coming from tonight?”  You should not say “I’ve been at the nudie bar, slamming down shots.”  Instead, you should continue to state, “I have an attorney.  His name is Greg Simms.  If you have any questions, you can call him.”

This might go without saying, but if you reek of booze and you breathe all over a police officer, they're probably going to get you out of the car for sobriety tests.  Thus, in the ideal situation, you would have one of my business cards with the aforementioned phrase written on the back.  That way, you don't have to talk to the cop at all - you can just hand the officer the card.

On a side, but related note, if you are stopped by a police officer in Kentucky, you are required to show proof of insurance, registration, and license.  If you don’t, you can be cited for not having any or all of the same. 

If you have a DUI charge in Louisville, Elizabethtown, Frankfort, Lexington, or the surrounding areas, and would like to talk to a Louisville, Ky. DUI lawyer, call Gruner & Simms, PLLC., at 502.618.4949.  One of our experienced DUI lawyers will be happy to sit down and talk to you about your case for free.

Results.  As fast as the law will allow.

Questions answered in this blog post:  Do I have to show police my license, insurance and registration; how do I find a good Louisville DUI lawyer; what am I supposed to say to an officer if I get stopped for DUI; Do you have to take a breathalyzer; do you have to take a DUI breath test; what are the rules on Kentucky DUI breath tests; how do I find a good Lexington DUI lawyer; do I have to answer a police officer's questions; do I have to take field sobriety tests in Kentucky; how do I find a good Elizabethtown DUI lawyer; if a cop asks if I have been drinking, what should I say; how to handle a DUI have you been drinking question; what is the right to remain silent?


My name is Greg Simms.  I'm happy to be free in Kentucky and I hope you are too.

I grew up in Marion County, just a couple of minutes outside Raywick, Ky.  Marion County is famous for Maker's Mark, country ham, and the Cornbread Mafia.  It is a beautiful place.  I went to law school at the University of Louisville, and now I'm the head of the Criminal Defense section at Murphy & Powell, PLC.

I handle DUI, Drug Charges, Assault, Sex Crimes, Robbery, Burglary, Theft, Manslaughter and Murder cases.  I also sue police officers who abuse their authority and other governmental entities (schools, prisons, etc.) for violations of Constitutional Rights.

I am an attorney licensed to practice in the great Commonwealth of Kentucky.  I am not licensed to practice in any other state in the United States, and I do not claim to be familiar with the laws of any other state.  The postings on this blog are not to be considered legal advice.  If you want legal advice, I will be happy to speak with you and I will not charge you for an initial consultation.  You can call my law firm, Murphy & Powell. at 502.473.6464.  Neither this blog, nor any information contained herein, creates any attorney/client relationship.  This blog is for entertainment purposes only.