Sunday, April 24, 2011

Selfish Stoners are Less Culpable

Sometimes growing marijuana is NOT "Marijuana Cultivation."

I know that sounds strange, but it's true.  It all depends on the intent of the individual who is growing the funny green plant.  "Intent" can be a very complicated legal concept - and it takes a while to get the hang of it.  Last week, there was some discussion of intent in the previous post about the "Stripper Arson" question, and I got some great feedback from some of you about intent.  That was a more complicated issue of "specific intent." Today, the conversation about intent will be very simple.  The question for the person growing is this:  Do you intend to transfer the pot, or do you intend to smoke it yourself?  If the stoner in question intends to hoard his or her weed, they are not "cultivating" for the purposes of Kentucky law.  KRS 218A.1423 controls this act, and it reads:

218A.1423   Marijuana cultivation -- Penalties.
(1) A person is guilty of marijuana cultivation when he knowingly and unlawfully plants, cultivates, or harvests marijuana with the intent to sell or transfer it.
(2) Marijuana cultivation of five (5) or more plants of marijuana is:
(a) For a first offense a Class D felony.
(b) For a second or subsequent offense a Class C felony.
(3) Marijuana cultivation of fewer than five (5) plants is:
(a) For a first offense a Class A misdemeanor.
(b) For a second or subsequent offense a Class D felony.
(4) The planting, cultivating, or harvesting of five (5) or more marijuana plants shall be prima facie evidence that the marijuana plants were planted, cultivated, or harvested for the purpose of sale or transfer.

Subsection (1) is especially important to today's conversation.  In order to be guilty, a person must knowingly and unlawfully plant, cultivate or harvest marijuana "with the intent to sell or transfer" the marijuana.  If the "intent to sell or transfer" element is missing, the person is Not Guilty.

So, if a person is growing less than 5 plants, and they intend to keep the marijuana for themselves, they are not guilty of Marijuana Cultivation.  In actuality, said stoner may only be guilty of Possession of Marijuana (which will only be a Class B Misdemeanor beginning in June of 2011).  And "Bogarting."*  Keep in mind that even passing a joint to your buddy can constitute a "transfer" of marijuana.  So if a person grows, and intends to share in the least, they are guilty of Marijuana Cultivation.

The "5 plant" provision in subsection (4) of the above statute is especially important.  Growing marijuana is illegal in Kentucky regardless of the number of plants, but generally speaking, people who grow 5 or more plants are committing felonies.  Growing 4 plants or less will get someone in much less trouble.

If you have a Marijuana Cultivation charge in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, call 502.618.4949 to speak with an experienced attorney.  You will not be charged for an initial consultation.  The lawyers at Gruner & Simms, PLLC have handled numerous Marijuana Cultivation charges with great success.

*"Bogarting" is not actually recognized as a criminal offense in the great Commonwealth of Kentucky.  Yet.

Questions answered in this blog post:  How many marijuana plants can someone grow in Kentucky without it being a felony, what is marijuana cultivation, what is the intent required for marijuana cultivation, how many weed plants is a misdemeanor, can I grow 5 plants in Kentucky, can I grow 4 plants in Kentucky, in Kentucky how many marijuana plants is a felony?

Wednesday, April 13, 2011

Stripper Arson Bar Lingerie

Am I the only one who thinks this is the most entertaining criminal law story of the past six months?  I mean really - how often do you get to read about allegations of a stripper setting another stripper's lingerie ablaze because stripper #2 was "stealing customers"???

A couple of people have asked me how this can possibly be "arson."  The answer is that if the allegations are true, it could very well be arson.

I'd like to start by saying that everyone is innocent unless they plead guilty or they are proven guilty beyond a reasonable doubt.  Not many people take the presumption of innocence more seriously than myself.  The above article is simply a report about what police officers said, and is not necessarily the truth.

That being said, for the sole purpose of debating the subject of arson, we will assume that the allegations are true.  Word around the campfire is that Mrs. Anderson is charged with Arson in the First.  I haven't substantiated that rumor (if anyone gets the opportunity to ask her, let me know), but police frequently "over-charge" people, so I wouldn't be surprised.  Let's start with Arson in the First.  KRS 513.020 governs this offense, and reads:

513.020 Arson in the first degree.
(1) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, he starts a fire or causes an explosion, and;
(a) The building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or
(b) Any other person sustains serious physical injury as a result of the fire or explosion or the firefighting as a result thereof.
(2) Arson in the first degree is a Class A felony.

If the police charged Ms. Anderson with Arson in the First, and the allegations are true, she is not guilty of the offense for which she is charged.  The first sentence of the statute it requires a specific intent to destroy or damage a building.  If the allegations are true, Mrs. Anderson had no such intent.  Her intent was to destroy lingerie, in order to teach Stripper #2 a lesson about stealing customers.  Anderson is Not Guilty.

Let's move on to Arson in the Second.

This offense is governed by KRS 513.030, and reads as follows:

513.030 Arson in the second degree.
(1) A person is guilty of arson in the second degree when he starts a fire or causes an explosion with intent to destroy or damage a building:
(a) Of another; or
(b) Of his own or of another, to collect or facilitate the collection of insurance proceeds for such loss.
(2) In any prosecution under this section, it is a defense that:
(a) No person other than the defendant had a possessory or proprietary interest in the building, or, if other persons had such an interest, all of them consented to the defendant's conduct; and
(b) The defendant's sole intent was to destroy or damage the building for a lawful purpose.
(3) Arson in the second degree is a Class B felony.

Again, we don't need to get past the first sentence.  This statute also requires the specific intent to destroy or damage a building.

The lowest level of arson in the Commonwealth is Arson in the Third.  It is governed by KRS 513.040, and reads:

513.040 Arson in the third degree.
(1) A person is guilty of arson in the third degree if he wantonly causes destruction or damage to a building of his own or of another by intentionally starting a fire or causing an explosion.
(2) In any prosecution under this section, it is a defense that no person other than the defendant had a possessory or proprietary interest in the building, or, if other persons had such an interest, all of them consented to defendant's conduct.
(3) Arson in the third degree is a Class D felony.

Mrs. Anderson might have a problem getting past this one (if the allegations are true).  Starting a fire inside a building may or may not be considered "wanton" behavior.  This is a fact driven situation.  I think most people would agree that starting a fire inside a fireplace isn't wanton behavior.  Most people would also agree that starting a fire directly on a carpet by using an accelerant like lighter fluid would be wanton.  If you start a fire indoors on a non-flammable surface, it might not be considered "wanton" by some people.  Starting a fire ON a pool table, which has an inflammable slate base underneath the felt may just be negligent, not wanton.  It depends on who you ask.  If the fire was started directly on the carpet, there is more of a chance that the entire building could go up in flames, so it would probably be considered more wanton behavior.

But take note - if the police actually did charge her with Arson in the First, she is drastically over-charged.  Class A felonies carry a minimum penalty of 20 years in prison.  That kind of conviction can, at the very least, eliminate your stripping career.  Ms. Anderson wouldn't be out until she was in her 40s if she was convicted of a Class A felony.  On the other hand, a Class D felony carries only 1-5 years.  She might even get the charge amended down and end up taking a misdemeanor with no jail time whatsoever.  Ms. Anderson could be back on the main stage before you could say "Thirty Dollars for a bucket of beers!!!  How do strip club owners sleep at night!?!?" 

Sunday, April 3, 2011

DUIs are like snowflakes...

They're all different.  The following is a brief overview of some DUI frequently asked questions and the answers thereto. Hopefully it will help explain to my readers why some DUIs get dismissed and some don't.  I hope you enjoy reading it.

Question:  Can I refuse to perform Field Sobriety Tests?

Answer:  Yes.  You can.  And you should.

Keep in mind that Field Sobriety Tests ("FSTs") and breathalyzers are two completely different animals.  There are legal ramifications to refusing to submit to an Intoxilyzer-type test (more on this later).  However, there is no law in this great Commonwealth that requires you to perform FSTs.

A lot of clients believe that they convince a police officer to let them go if they just perform the tests and pass them.  The problem with that rationale is this: the police officer already suspects you of drinking and driving if they're asking you to perform FSTs.  The police officer gets to administer the test, and the police officer (who already thinks you are drinking and driving) gets to subjectively determine the results of the test.  If you don't perform the tests, you won't give them ammunition to use against you.  Don’t perform these tests.  

I've said it before and I'll say it again:  Cops are not your friends.  They are not trying to help you.  Do not help them build a case against you.

Question:  Why did the officer make me blow on a breathalyzer twice?

Answer:  Because the first one was inadmissible in court.

When I see clients who have gotten a Kentucky DUI charge, often they want to know why they had to provide two breath samples to the Police.  The short answer (which is the only answer I’m going to give you on this lazy Sunday) is that Police usually offer two breathalyzers.  The first one you might encounter would be the Portable Breath Tester, or “PBT.”  Officers carry the PBT on their Batman-esque utility belts in case they “detect the odor of alcohol on or about your person.”  This PBT is a nicer, more expensive police version of the $80.00 “AlcoHAWK slim” PBT that I own and keep in my golf bag. 

The problem with PBTs (even Police PBTs) is that they are not 100% accurate.  In fact, they are consistently inaccurate unless you calibrate them regularly.  Because of the inherent un-reliability of these machines, the results that they provide are inadmissible in a Kentucky Court of Law.  You can and should refuse to take a PBT. 

The second type of breath tester IS admissible.  After an arrest, (if you are not asked to submit to a blood or urine test) you will most likely be asked to give another breath sample back at the police station.  The police officer will probably lock you up and “observe” you for at least twenty minutes before asking you to step up to a much larger breath tester.  Most police departments in Kentucky use the Intoxilyzer 5000, which is manufactured by CMI, Inc., in Owensboro, Kentucky.  These machines (if calibrated and serviced regularly) are about as reliable as breath testers come.  There are legal ramifications to refusing to submit to an Intoxilyzer-type breath test.  You should talk to a lawyer about whether to submit to an Intoxilyzer test.

There are a lot of rules concerning how a police officer must administer a breath test – for example, it must be done within 2 hours after the cessation of your vehicle in order to be admissible in a per se prosecution – so talk to a lawyer about your circumstances.  The results of your breathalyzer may or may not be allowed in Court.

As a side-note, if you tend to drink a couple of beers while playing golf (or other activity), you should be careful about how many you have consumed, and how long it took you to consume them. It wouldn't hurt to get an "AlcoHAWK slim" and keep it in your golf bag (or other...activity...bag).  Just in case.  And if the situation is questionable, call a taxi.

Question:  If I get a DUI and my BAC was really high, shouldn’t I just go ahead and plead guilty, instead of hiring a lawyer?

Answer: That's a bad idea.  Let me tell you why.

If you have a DUI charge in Kentucky, your BAC isn’t the only factor in your case.

If you end up blowing under a .08 on an admissible breath test, you have a pretty great case.  Feel free to skip ahead to the section which includes my contact information.  If, like the vast majority of my DUI clients, you blow over, it is time to explore other alternatives to your defense.  Typically, I tend to fight Kentucky DUI charges in two ways.  1) Attacking the stop; and 2) Attacking the FSTs.  There also may be other issues, such as "control" of the vehicle.

1) Police aren’t allowed to stop anyone for any reason.  There are legal standards for when Police may effectuate a traffic stop – which is great, because otherwise, police would have carte blanche to abuse their authority (racial profiling, for example, could be even more rampant).  In Kentucky, a police officer must have reasonable, articulable suspicion that you are engaged in criminal activity to pull you over.  If the officer did not have reasonable, articulable suspicion, the officer performed an unlawful stop.  The ramifications to an unlawful stop are tremendous.  A case can be completely dismissed on the basis of an unlawful stop.

For example, I recently represented a client on a Bardstown DUI charge who stopped his truck in the parking lot of a Doctor’s office after business hours.  It was approximately 11:00pm.  The police officer felt that being at a closed Doctor’s office at 11:00pm was “suspicious” activity.  As my client began to pull out of the parking lot, the officer drove over and stopped my client.  The client blew “over the limit” on an Intoxilyzer test.  After a grueling hearing before a District Court Judge, I convinced the Judge that the officer lacked reasonable, articulable suspicion for the stop – a violation of my client’s 4th Amendment rights.  The case against my client was dismissed.  This was just one of the many cases I’ve seen where the case was dismissed because an officer stopped someone in an unlawful manner.  Each case is different, and each case has its own set of circumstances and issues.  Your case may or may not be able to be dismissed.  Talk to an attorney about your case for more information.

2) Officers are taught to perform FSTs according to the National Highway Traffic and Safety Administration (“NHTSA”) guidelines.  For some officers, it has been years since they learned how to perform the tests.  Unfortunately, some officers “guess” at how to perform the tests if they cannot remember the details.   If they do not perform the tests correctly, the results of those tests may not be admissible as evidence against you.  That makes a lot of sense, because a flawed test can often produce flawed results.

For example, I recently represented a client on a Louisville DUI charge, and was able to show the Judge that the officer incorrectly performed the Horizontal Gaze Nystagmus test and the Walk and Turn test.  The Judge agreed that the tests were not performed in accordance with the NHTSA guidelines, and held that the tests were inadmissible.  Again, each case is different, and each case has its own set of circumstances and issues.  Your case may or may not be able to be dismissed.  Talk to an attorney about your case for more information.

Lastly, there may be other circumstances which might be beneficial for your DUI charge.  In Kentucky, the Commonwealth must prove beyond all reasonable doubt that you were not only under the influence, but that you were in control of, or operating a motor vehicle.  This “control” of the vehicle issue is very fact-specific.  Is someone who is asleep in a parking lot of an apartment complex “in control” of the vehicle?  What if they are in the passenger seat?  What if they are in the driver’s seat but the keys are not in the ignition?  What if the car is on but not in gear?

I (very) recently tried an Elizabethtown Driving on a DUI Suspended License charge in front of a Hardin County Jury.  The facts were this: my client was at Court, and the Judge suspended his license for a DUI.  (I did not represent the client for the DUI charge).  The client walked out of the courthouse, and a plain-clothes police officer followed him.  Client went up to his truck, opened the door, got inside, started the vehicle and pressed the brake.  After the brake lights came on, the officer shouted for my client to get out of his truck, and client was arrested.  At trial, the issue of “control” of the vehicle was heavily debated.  In the end, I was able to convince the Jury that my client was Not Guilty.  After only twelve minutes of Jury deliberation, the client walked away free and clear.


All Kentucky DUI charges are different.  Even from this very cursory overview of some DUI issues, you can tell that some “small” facts can completely change the outcome of a case.  Even if you blow over the legal limit on an admissible breath tester, you should talk to an attorney about your DUI charge.  At Gruner & Simms, PLLC., we take DUI defense very seriously.  We have handled numerous cases with favorable results.  If you have been charged with a DUI in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, call 502.618.4949 and schedule a free consultation with an experienced Kentucky DUI lawyer.