Wednesday, December 28, 2011

Free in Kentucky: New Years Eve: Read This Before You Party!

Free in Kentucky: New Years Eve: Read This Before You Party!: My learned father Tom Simms once told me that you shouldn’t be out on the roads after 2:00am, because “There’s nobody out there except for c...

New Years Eve: Read This Before You Party!

My learned father Tom Simms once told me that you shouldn’t be out on the roads after 2:00am, because “There’s nobody out there except for cops and drunks.  And you don’t want to run into either of them.”*  This little golden nugget of truth shines no brighter on any other occasion than it does on New Years Eve (hereinafter, “NYE”).

For those of you who ignore the admonition of modern day prophet Tom Simms, do so at your own peril.  The police are prevalent on NYE, and the biggest party night of the year is notorious for road blocks (also called “DUI check points” depending on where you read about them).  Generally, today’s conversation will be about how to handle yourself and what not to do during a road block.  Ancillary issues will include how lawyers fight DUI cases that involve road blocks and what to expect concerning the procedure of a DUI case.

Personally, I intend to spend NYE with some close friends and stay in, rather than brave the clubs.  See also: "Chillabrate."**  If you refuse to chillabrate this year, and you venture out in public - consider the following scenario.

Let’s say you’ve been drinking, and the party has ended.  Let’s assume you are not stumbling drunk.  You have just been drinking a few drinks.  Instead of taking a cab or city scooting the way home (for those of you lucky enough to live within “City Scoot” range), you get behind the wheel of your car.  As you drive down the road, managing to keep it between the lines, you approach what looks like it might be a wreck.  You slow down and get in line behind the vehicle in front of you, and stare down the row of red brake lights until you get to the sea of police cruisers flashing their blue emergency lights.

Pulse pounding and hands sweating, you try to remember the following pieces of advice:

1) Have your license, insurance, and registration handy.  That way, if they ask for one, all, or a combination of those things, you can immediately hand them to the officer.  If you don’t have them, you can be cited.

2) Do not speak to the officer.  Smile politely, and go to number 3.

3) Hand the officer my card, turned over to the backside.  The officer will be able to read the message that says you wish to remain silent, and that you do not waive any of your constitutional rights.  It also informs the officer that you will not take a PBT (preliminary/portable breath tester) or participate in any field sobriety tests (FSTs).

4) Do not perform field sobriety tests or blow on a PBT.  You are well within your rights to refuse to do these things, and you should refuse them.  Again, you should do this without speaking.

If you follow the above instructions, the officer will not have 1) evidence of bad driving (because you were stopped at a roadblock and not for a driving infraction), 2) any admission of drinking, 3) evidence of alcohol on your breath (because you didn’t speak), 4) failed sobriety tests, or 4) an alcohol reading on a PBT.  Typically, at least some of the aforementioned criteria are needed for a DUI arrest.

But Greg, what if I don’t have one of your cards?  Then you should say nothing.  The basic point is that you don’t want to tell the officer that you’ve been drinking (or any other incriminating statements) and you don’t want to give the officer an excuse to write, “Subject had slurred speech and the smell of alcohol on or about his/her person” on your citation.  And if you don’t speak, they can’t write those things.

As a side note, if you send me a stamped envelope, or drop by my office, I will give you some of my business cards.

Let’s change the facts a bit.  Let’s say you haven’t had a drink all night.  If you haven’t been drinking and you are sure that you 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.  

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.  I know a lot of bad people.  Invoking your rights doesn’t make you one of them.  America.  Apple Pie.  Hulk Hogan.  Wait, where was I going with this?

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.

Let’s take a foray into the actual legal work that gets put into fighting a road block DUI.  Stick with me and try not to fall asleep.  If you have a Louisville DUI lawyer that is worth a damn, he will understand that the basic legal requirement for road blocks is that they must be constructed so as to “limit the discretion of the officers in the field.” Commonwealth v. Bothman, 941 S.W.2d 479 (Ky. App. 1996).  

To that end, a Judge would want to know if the officers who performed the road block conformed to the OM – E – 4 guidelines.  These guidelines are actually Kentucky State Police guidelines, but the vast majority of local law enforcement entities have adopted the OM – E – 4 guidelines by copying them verbatim into their own policies and procedures.  I will not bore you with posting the entire OM – E – 4 guidelines.  Just know that generally, require road blocks should be held at pre-approved locations, the start and stop time of the roadblocks should be pre-determined by a superior officer (and not an officer in the field), and there should be some sort of advanced warning that the road block exists.   There are some other requirements, but they are generally less important.  And the law doesn’t require strict compliance.  As previously mentioned, the road block must be constructed to take away discretion from officers in the field.  Still awake?  Good.

In order to attack the roadblock and put the issue in front of your judge, a good Louisville DUI lawyer would make a motion to dismiss the case, and in the alternative, to suppress any evidence gleaned as a result of a violation of your 4th Amendment Right to be free from Unreasonable Search and Seizure. 

There.  I'm done.  That wasn't so bad, was it?  At the end of the day, I hope this conversation has shed a little light on the concept of road blocks and how to handle yourself during one.  Or at least provided you with an opportunity to slack off at work while reading something that was "educational" and thereby rationalizing your time spent as NOT actually "slacking."  If you have any other questions about DUIs or road blocks, please feel free to call me.

Not all Louisville DUI lawyers are the same.  If you have been charged with DUI in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, get a Louisville DUI lawyer who knows the law and has experience.  Don’t settle for a lawyer who doesn’t try cases in front of a jury.  Your case is too serious for a lawyer who isn’t a Louisville DUI trial lawyer.  Call 502.473.6464 and speak to DUI lawyer Greg Simms at 
Murphy & Powell, PLC today.  The initial consultation is free of charge.

Individual Attention.  Extraordinary Results.

*Not to be confused with my father’s second most famous quote, “Mow the damn grass.”


Questions answered in this blog post:  What do I do at a police roadblock; what am I supposed to say at a road block; how to interact with police officers when you have been drinking; how to prevent getting arrested at a roadblock; how do lawyers fight DUI cases; where can I find a good Louisville DUI lawyer; do I have to perform field sobriety tests; do you have to blow on a breathalyzer; how to find a good Elizabethtown DUI lawyer; should I refuse a breathalyzer in Kentucky;  is there a legal obligation to take a PBT in Kentucky; how to find a good Lexington DUI lawyer?

Monday, December 19, 2011

Free in Kentucky: Baby it's Cold Outside: a Sex Crime Set to Music

Free in Kentucky: Baby it's Cold Outside: a Sex Crime Set to Music: Every once in a while you come across a song that sounds…really…“rapey.”  I guess.  The lyrics to the Toadies “Possum Kingdom” come to mind....

Baby it's Cold Outside: a Sex Crime Set to Music

Every once in a while you come across a song that sounds…really…“rapey.”  I guess.  The lyrics to the Toadies “Possum Kingdom” come to mind.  But for some reason I don’t mind the song.  I quite like it, actually.  Maybe it’s because the harsh nature of the acts suggested are at least slightly mitigated by the fact that the character in Possum Kingdom seems mentally ill, and he just can’t help it.  Or maybe the song just rocks because, regardless of the lyrics, the musical components are so gnarly.  Either way, Possum Kingdom gets a pass in my book.

But just about every time the “Baby, it’s Cold Outside” song comes on the radio, I cringe.  I cringe at the impending legal ramifications of the romantic (?) transaction that takes place between the characters singing.  I know it is a hypothetical situation.  I know the characters in the song aren’t real.  But still – the song is downright disturbing.  Unlike the situation in Possum Kingdom, the character in Baby, it’s Cold Outside doesn’t seem mentally ill.  He just comes off like a date rapist.  See for yourself.  The following is a transcription of the lyrics I hastily copied and pasted from an unreputable internet site:

I really can't stay
(but baby it's cold outside)
I've got to go away
(but baby it's cold outside)
This evening has been
(been hoping that you'd drop in)
So very nice
(i'll hold your hands, they're just like ice)
My mother will start worry
(beautiful whats your hurry)
My father will be pacing the floor
(listen to the fireplace roar)
So really i'd better scurry
(beautiful please don't hurry)
but maybe just a half a drink more
(put some records on while i pour)
the neighbors might faint
(baby it's bad out there)
say what's in this drink
(no cabs to be had out there)
i wish i knew how
(your eyes are like starlight now)
to break this spell
(i'll take your hat, your hair looks swell)
i ought to say "no, no, no sir"
(mind if i move in closer)
at least i'm gonna say that i tried
(what's the sense in hurtin' my pride)
i really can't stay
(oh baby don't hold out)

both:baby it's cold out side

i simply must go
(but baby it's cold outside)
the answer is no
(but baby it's cold outside)
your welcome has been
(how lucky that you droped in)
so nice and warm
(look out the window at that storm)
my sister will be suspicious
(gosh your lips look delcious)
my brother will be there at the door
(waves upon the tropical shore)
my maiden aunts mind is vicious
(gosh your lips are delicous)
but maybe just a cigarette more
(never such a blizzard before)
i've gotta get home
(but baby you'd freeze out there)
say lend me a coat
(it's up to your knees out there)
you've really been grand
(i thrill when you touch my hand)
but don't you see?
(how can you do this thing to me?)
there's bound to be talk tomorrow
(think of my lifelong sorrow)
at least there will be plenty implied
(if you got namonia and died)
i really can't stay
(get over that old out)

both: baby it's cold
baby it's cold outside 

Alright, let’s all ignore the preceding misspelled words and get down to the point.  What sex crimes (under the Kentucky Revised Statutes) are evidenced by the lyrics in “Baby, it’s Cold Outside?”

Our analysis will begin with the first verse, particularly with the suggestion that the male (hereinafter, “Nick”) character is attempting to drug the woman (hereinafter, “Blossom”).  Presumably, Blossom gets some sort of indication that the drink Nick gave her contains some foreign substance.  Baby it’s Cold Outside, Chistmas Episode, Nick and Blossom, vrs. 1 ln. 19 (NBC 1993). 

We aren’t sure why Blossom has the indication that the drink may be drugged.  She just asks, "what's in this drink?"  It may be because the drink tastes funny, or possibly because she begins to feel the effects of involuntary intoxication.  Regardless, it certainly seems as if Nick drugged Blossom. Id.  

Later in the first verse, Blossom waivers on what we can only assume is the decision to engage in some sort of sexual act with Nick.  She says “I ought to say No, No, No sir…at least I’m gonna say that I tried.” Id at vrs. 1 ln. 25.  These statements are evidence of consent, but coupled with a preconceived plan to mislead others  (after the sexual act) into believing the sexual act was nonconsensual.  Which certainly helps Nick’s rape case.

But regardless of her wavering, Blossom seems to make a firm and verbalized decision that she does not intend to engage in any sort of getting down. Id. at vrs. 2, ln. 3.  At this point, the business is off the table.  

With that in mind, any subsequent sexual activity can only be determined to be nonconsensual, absent some statement or actions to the contrary.  

In my opinionation*, if Nick made sexual advances after this song, he would have some serious legal concerns.  Depending on what kind of conduct takes place, Nick could be looking at charges including but not limited to Rape, Sexual Assault, Sexual Misconduct, and Unlawful Transaction With a Minor (assuming Blossom is over 16 but under 18 years old).  Not to mention any sort of incest charges which may be brought, because Nick was Blossom’s FATHER.  (In my best Joey Lawrence voice) Whoa!

This year when you're standing under the mistletoe and "Baby it's Cold Outside" starts playing on the radio, make sure and let everyone know about all of the criminal conduct the song implicates.

Happy Holidays!

Questions answered in this blog post:  Why is the song "Baby it's Cold Outside" so creepy; would the actions in Baby it's Cold Outside be a sex crime or rape; how does Greg Simms have time to write these blog posts and still be at the top of his game for trial purposes (not actually answered in this post); which is creepier, Possum Kingdom or Baby it's Cold Outside?

*Who saw that coming?  Anyone?

Friday, December 16, 2011

Free in Kentucky: Grave Robbing and Faking Your Own Death

Free in Kentucky: Grave Robbing and Faking Your Own Death: For those of you who have planned to rob a grave and/or fake your own death, please give this blog post some consideration before making tha...

Grave Robbing and Faking Your Own Death

For those of you who have planned to rob a grave and/or fake your own death, please give this blog post some consideration before making that final decision.  On second thought, if you have already weighed some pros and cons of grave robbing, and are still leaning toward it, you probably aren’t capable of reading, comprehending, and taking legal advice.  So, maybe I shouldn’t waste my breath (actually, more like “typing effort”).  Just call me when you get in trouble.

Frequently, my blog posts border on the absurd.  That’s because my job borders on the absurd.  Even those of you who know me and have heard my stories have only heard what is public record – what I am allowed to tell you.  You haven’t heard the ridiculous stuff that I cannot tell you because I am bound by the ethical rule of confidentiality.

Even though the events enumerated in this blog seem farfetched, please bear in mind these laws are in place because people actually DO these things.  And as I write these posts, I’ll try to give you as many real life examples as I can within the bounds of law and ethics.

For example:  The insurance journal reports that a couple in Texas, Clayton and Molly Daniels, schemed to fake the death of Clayton for the purposes of avoiding jail and collecting a life insurance payout.  In order to fake his death, Clayton is alleged to have dug up the body of an 81 year old mentally retarded woman, placed her in his vehicle wearing his clothing, ran the car off a cliff and burn the body and the car.  According to Texas Rangers, they were first tipped off when Molly was surprisingly calm during an interview after her husband’s “death.”  Later, Rangers say that DNA results didn’t match Clayton.

Today’s conversation deals with faking your own death.  The general question for the day is “In Kentucky, is it illegal to fake your death?”  There will also be ancillary issues concerning the legal ramifications of grave robbing and insurance fraud.

The problem that most people run into when attempting to fake their own death is not the actual “faking death” part, rather, it is usually either the preparation that goes into the same, or the reasons for faking said death.  That brings us to grave robbing.

In Kentucky, grave robbing can get you into a LOT of trouble.  It has extremely serious ramifications.  Let’s talk about the slew of charges that police will throw on you if you rob a grave. 

First up is the Desecration of Venerated Objects, found in KRS 525.105.  It reads,

 (1) A person is guilty of desecration of venerated objects in the first degree when, other than authorized by law, he intentionally excavates or disinters human remains for the purpose of commercial sale or exploitation of the remains themselves or of objects buried contemporaneously with the remains.
(2) Desecration of venerated objects in the first degree is a Class C felony

So that covers digging up the actual grave with the intent to exploit the remains.  But the law doesn’t stop there.  This great Commonwealth frowns on grave robbing so much that we have multiple statutes that drown a person in felony waters.  The next statute we need to look at is KRS 525.115, which covers “violating graves.”

(1) A person is guilty of violating graves when he intentionally:
(a) Mutilates the graves, monuments, fences, shrubbery, ornaments, grounds, or buildings in or enclosing any cemetery or place of sepulture; or
(b) Violates the grave of any person by destroying, removing, or damaging the headstone or footstone, or the tomb over the enclosure protecting any grave;
(c) Digs into or plows over or removes any ornament, shrubbery, or flower placed upon any grave or lot.
(2) The provisions of subsection (1) of this section shall not apply to ordinary maintenance and care of a cemetery nor the removal and relocation of graves pursuant to procedures authorized by and in accordance with applicable statutes.
(3) Violating graves is a Class D felony.
(4) The court shall order the defendant to restore the cemetery to its pre-damage condition.

Thus, it is a completely separate crime to move the flowers placed on the grave, in order to start digging into the ground.  In fact, moving the flowers alone in this situation would constitute a Class D felony.  But it doesn’t stop there.  KRS 525.120 covers the act of removing the body and using it for other…purposes…besides…burying.  It reads:

 (1) A person is guilty of abuse of a corpse when except as authorized by law he intentionally treats a corpse in a way that would outrage ordinary family sensibilities. A person shall also be guilty of abuse of a corpse if that person enters into a contract and accepts remuneration for the preparation of a corpse for burial or the burial or cremation of a corpse and then deliberately fails to prepare, bury, or cremate that corpse in accordance with that contract.
(2) Abuse of a corpse is a Class A misdemeanor, unless the act attempted or committed involved sexual intercourse or deviate sexual intercourse with the corpse or the deliberate failure to prepare, bury, or cremate a corpse after the acceptance of remuneration in accordance with any contract negotiated, in which case it is a Class D felony.

Chances are the police would use subsection (2) supra, as a basis for charging a grave robber/death faker with an extra felony.  The rationale most likely to be employed would be that, by taking the body away from burial and burning the body, you have caused the “failure to bury” the corpse.

As you can see, the grave robbing statutes are numerous.  If a person were courageous enough to rob a grave whilst a funeral proceeding were concurrently being held, there would be several other charges to add to the list.

That brings us to Insurance Fraud.  When a person is inclined to fake their death, that person has a reason to do so.  Most frequently, that reason is money.  Insurance money.  Which isn’t “real” money, right?  But we will treat it as if it were, for the purpose of this conversation.

The statute is extremely long, and due to the extensive nature of the same, I will not post it here. Just trust me, insurance fraud is illegal under KRS 304.47-020, and in this case, it would most likely be a felony carrying a penalty of up to 5 years in prison.

All that being said, it is not illegal to fake your own death in Kentucky.  I have yet to see a Kentucky Revised Statute, Kentucky Administrative Regulation, or local ordinance which prevents it.  If all you are doing is faking a death, with no other purpose, and you don’t do anything that is illegal in the process, faking your death, alone, is not illegal in Kentucky.

If you have been charged with grave robbing or insurance fraud, you need an attorney who knows the law.  These are serious crimes with stiff penalties.  Call Gruner & Simms, PLLC at 502.618.4949 for a free consultation today. 

Results.  As fast as the law will allow.

Questions answered in this blog post:  In Kentucky, is it illegal to fake your own death; what crimes can a person be charged with if they rob a grave; what class of felony is it to dig up a body; what is desecration of a corpse; what is desecration of venerated objects; what is abuse of a corpse; where can I find a good Louisville Criminal Defense lawyer; what constitutes insurance fraud in Kentucky?