Sunday, December 9, 2012

Free in Kentucky: Is Marijuana Legal in Some States? Is it REALLY L...

Free in Kentucky: Is Marijuana Legal in Some States? Is it REALLY L...: It’s difficult to keep tabs on the status of Marijuana in the United States.  Laws are fluid.  Both Federal and State.  They change.  An...

Is Marijuana Legal in Some States? Is it REALLY Legal? What About Federal Law?

It’s difficult to keep tabs on the status of Marijuana in the United States.  Laws are fluid.  Both Federal and State.  They change.  And change is good, you know. 

Speaking of change...allow me to digress.

When distilleries make bourbon, they put clear corn whiskey into barrels.  More specifically, the colorless elixir is poured into charred, virgin white oak.  In that charred barrel, the whiskey will stay for years.  Kentucky has the perfect climate for storing bourbon.  In the summer temperatures can reach over 100 degrees.  In the winter, we can bottom out below zero.  This drastic temperature difference allows the bourbon barrels to expand, contract, expand, contract, etc.  While the bourbon barrels expand, they allow the clear whiskey inside to seep into the walls of the charred oak, and then in the winter, the contraction of the barrels forces the booze back out of the walls.  This is how bourbon picks up its deep brown color, and the delicious flavors of vanilla, caramel, and smoke.  Kentucky is perfect for Bourbon.

And it isn’t just the climate.  Any distiller worth their salt will tell you that good bourbon starts off with good, pure water.  Kentucky has copious amounts of limestone in the ground.  You may already know that limestone is easily eroded, and that’s why Kentucky has more than its share of underground cave systems (underground rivers erode the limestone away to form caves).  But did you know that limestone makes for good water?  It is a very basic substance (in the ph sense of the term “basic”) which balances out the acidity in rainwater.

For that reason, Kentucky is also perfect for marijuana.  Acidity is the natural arch-nemesis of marijuana.  Indoor growers who know what they’re doing constantly monitor ph level to make sure their babies grow up to be big and strong.  Outdoor growers in Kentucky have it made.  The soil is good and is typically naturally ph balanced for marijuana growth.  Because of the limestone.  Maybe that’s why Kentucky has been the 3rd highest marijuana producing state in the union (behind only California and Tennessee).  Even though we have only 1.5% of the population, we produce 10% of the nation’s marijuana.  Imagine how many jobs would be created here in the Bluegrass State…

All of the preceding statistical information is now outdated.  So forget all of the BS I just spewed.  The recent legalization (or more accurately, “decriminalization”) of marijuana in multiple states is most certainly spawning increased marijuana production in those states.

The most courageous change has come from Colorado and Washington State.  Both states have enacted legislation concerning personal use for any purpose (not just medicinal marijuana).  It is now “legal” to possess marijuana in those states, for personal use.  But how legal is “legal?”

Technically, it isn’t legal at all.

You see, federal law still prohibits the possession of marijuana.  The leafy green plant is classified as a Schedule I Narcotic.  Like cocaine.  Our federal government’s official stance is that marijuana has high potential for abuse (addiction) and that the plant has NO Medicinal value.  The federal government prohibition does not allow personal use, and it does not have an exception for those people suffering from chronic pain or nausea (for just a couple of examples) and have been approved by a doctor for medicinal use.  Marijuana is still illegal.

Federal law trumps state law.

So even though Colorado and Washington say that you can possess a small amount of marijuana for personal use, it is still illegal to possess marijuana in Colorado, Washington, or any other state.  The difference, is that – at least for the time being – the Obama administration seems to be treating Marijuana regulation as a “State’s Rights” issue.  And the DEA seems to be staying out of the way.

Yes, possession of a small amount of marijuana is legal on the state level in Colorado and Washington.  No, the federal legislation outlawing marijuana has not been repealed.  So it is still illegal.

There you have it.  Clear as mud.

Simms & Reed, PLLC.  
Individual Attention.  Extraordinary Results.

Saturday, November 17, 2012

Free in Kentucky: "Keepin' em On the Streets": A Year in Jury Trials...

Free in Kentucky: "Keepin' em On the Streets": A Year in Jury Trials...: This last week isn’t the first time I’ve gotten looks or words of disapproval.  In my line of work, it happens.  Job hazards, or whatever....

"Keepin' em On the Streets": A Year in Jury Trials for Greg Simms

This last week isn’t the first time I’ve gotten looks or words of disapproval.  In my line of work, it happens.  Job hazards, or whatever.  Sometimes the nasty smirks come after I win a trial.  Frequently the scowls or looks of disgust come when I first meet someone and tell them that I’m a criminal defense lawyer.  Like I just told them I’m a nazi or something.

Some of it I get.  Some of it I don’t understand.

I’m not trying to convince you that I’m a good person.  But I would like to clear up some misunderstandings about what criminal defense lawyers do and/or don’t do.  My goal is not to “Keep ‘em on the streets!” in the sense of making sure bad people are free.  My goal is to make sure my clients don’t get steamrolled by police who abuse their power, and to make sure their constitutional rights are upheld.  Because everyone in this country deserves that much. 

Let’s start with a couple of principles.

1) Criminal litigation is a great job.  It’s fun.  It doesn’t get boring.  Criminal law is fast paced, in a way that other areas of law can’t even come close to comparing.  And in order to be good at criminal law, you have to be able to think quickly, on your feet.  In that way it is also very challenging.  That’s why I love practicing criminal law.

2) Criminal Defense suits me more than Criminal Prosecution.  I understand that some people think I help BAD people to get less punishment - and that such conduct on my part is BAD.  But I can’t see myself as a prosecutor.  First and foremost, I would feel like an absolute hypocrite trying to punish others for doing “wrong.”  I’m not trying to convince you that I’m a good person because I am NOT a good person.  Or, at least, I’ve done my fair share of sinning.  Maybe your fair share, too.  So I couldn’t condemn others for things they’ve done or make a judgment call regarding whether their sins are “worse” than my sins, etc.  So I’d rather be on the side that gives second chances.  Forgiveness.  70 x 7.  I find this side of the V. to be far more morally justifiable.  Second, I want to be a voice for the less powerful.  The police come in numbers, organized, and trained.  They are powerful.  When that power is abused, it makes me sick.  So I find it very satisfying to make the effort to “keep ‘em honest.”

3) Most Criminal Defense lawyers don’t do what a lot of people think they do.  We don’t go in with a 100% guilty client and lie – we don’t just run in and start denying any wrongdoing.  Often, the best defense is to explain the wrongdoing as is, because the client is usually over – charged.  By getting the truth on the table, we can get the charges reduced to the appropriate level, and move on.  That way the client’s happy because they might be doing 1 year instead of 5-10 years in prison.  The client may even be an appropriate candidate for probation.  My point is, we don’t go sprinting into court with guns blazing, lying about how our client didn’t do anything illegal if they did, in fact, break the law.

With the preceding principles enumerated, let me tell you a little about my year.  Jury Trials are tough.  They are stressful, require a LOT of preparation (generally 30-80 hours depending on the nature of the trial), and if the case actually goes through trial in front of a jury, it requires lawyers to put forth very intense focus.  You have to mind the witness, constantly weigh the possibility of objecting to opposing counsel, check the jury to see if they are responding favorably and take notes for your cross examination, future motions, and closing argument.  All of these things are simultaneous.  Meanwhile, the very real consideration that someone’s freedom depends on your performance weighs heavily on your mind.  It’s a stressful situation.

There are several ways to win a jury trial.  The first way is to “beat the offer.”  If the offer is 10 years in prison, and the jury convicts your client and gives him only 5 years on a lesser charge, that is a Defense “win.”  Because you beat the offer that was on the table.  The second way to win a jury trial is to start winning some motions, or get some really good evidence out, and then the other side offers to settle the case on favorable terms for your client.  Lastly, and more obviously, you can get a Not Guilty verdict.

My first jury trial of the year was Commonwealth v. Matthew Kustes.  This was a relatively minor charge of Trespassing in Fayette County, but the case was more important than the face value of the potential punishment because Kustes was arrested without Probable Cause.  That means, if the criminal case was successful, we would have a civil case against the police under 42 U.S.C. 1893.  So I was prepared to charge into jury trial on a case that I normally would consider to be… “unworthy” is not the right word, but it’s the first word that comes to mind*… of the time and effort that goes into jury trial.  So we put the jury in the box.  After I was able to show that Kustes actually had permission to be on the premises and that the police did not have the authority to order him to disburse, we got a directed verdict in the case.  That mean the Judge awarded us a Not Guilty verdict without even allowing the jury to deliberate. 

The second case that went to jury trial this year was a felony case in central Kentucky.  It was of a sensitive nature.  I’m not going to go into all of the details of the case, but in general, the allegations were pretty harsh, but the punishment for such allegations was EXTREMELY harsh.  If you want to know about it – ask me.  I’ll fill you in on what is not confidential information.  Regardless, we went to jury trial in Mercer County.  While the jury pool waited in the courtroom, the attorneys went back into Judge’s chambers to argue some motions in limine.  I started to win some motions, and the Commonwealth asked if we could settle the case.  The prosecutor, Richie Bottoms, is an absolute class act and a very professional individual, by the way.  Good lawyer.  Long story short, my defendant took one year in jail.  He was originally facing 10 years in prison and a lifetime on the sex offender registry.  This was a “settled on favorable terms” win.

My next trial for the year was Commonwealth v. Latoya Smith.  She had a “drug DUI” case in Jefferson District Court.  After a hard fought battle, we ended up getting a Not Guilty verdict on the DUI.  Again, the prosecutor on the case was very talented and a really classy individual.  His name is Ben Wyman.  The jury didn’t let us go 100% scot-free.  They gave Latoya a $100 fine on a Disorderly Conduct charge.  It wasn’t a massive win, but a win nonetheless.  We got a Not Guilty verdict and we more than beat the offer. 

The next trial was Commonwealth v. Greg Maddox.  Maddox was wrongfully accused of assault.  This is another case where I won’t go into all of the details because of the sensitive nature of the case.  But I can tell you that after about 40 hours of diligent jury trial preparation, we finally got to the day of jury trial.  Our case was very strong.  After giving the case a last minute review, the prosecutor made the very reasonable agreement to completely dismiss the case against Mr. Maddox.  The best way to win a trial is to get a complete dismissal without even having to gamble on the jury’s verdict.  It was a big win.

My last trial of 2012 was an absolute brawl.  Commonwealth v. Steven Balazs was another “drug DUI” charge in Hardin County.  The County Attorney’s office in Hardin County is extremely unreasonable and prefers to waste taxpayer money instead of making decent offers on cases.  The prosecutor in this case was no different.  Balazs was charged with DUI and Reckless Driving.  The commonwealth contended that Balazs was under the influence of the 3 prescription drugs found in his bloodstream.  We had substantial evidence on our side that there was some sort of medical event, beyond his control, that caused the bad driving.  The jury agreed and only took approximately 7 minutes to deliberate.  Not Guilty on DUI.  Not Guilty on Reckless Driving.

And there you have it.  That concludes my 2012 year in Jury Trials review.

Next year I hope to go completely undefeated as well.  But I’ll probably try slightly less cases.  Maybe I’ll settle for 3-0 next year.

If you are interested in seeing some of the snippets from trial – like a cross examination of a police officer or a closing argument, they will be up on the internet soon.  I will put out a link to them in due time.

*Blatantly stolen literary device, taken from Chuck Palahniuk

Tuesday, October 30, 2012

Free in Kentucky: DUI Tips from a Louisville DUI Lawyer: You Know......

Free in Kentucky: DUI Tips from a Louisville DUI Lawyer: You Know......: People ask me regularly what they should do if they get pulled over by the police.   The answer to that question, like the answer to most ...

DUI Tips from a Louisville DUI Lawyer: You Know...Just in Case

People ask me regularly what they should do if they get pulled over by the police.  The answer to that question, like the answer to most legal questions is, “It depends.”  Let’s start with a few basic facts and assumptions, then we’ll move to the “what to do” portion of the post.

Basic Principle #1: It is not illegal to drink and drive in Kentucky unless you are “under the influence.”  Everyone has heard that it is illegal to drink and drive.  But that’s not really true.  “Don’t Drink and Drive” is a billboard slogan.  It is not the law.  The truth is that it is perfectly legal to have a beer or two with dinner, or a glass of wine out with your friends, and drive home, as long as you are not “under the influence” of alcohol.

Basic Principle #2: Notwithstanding Basic Principle #1, it is a bad idea to drink and drive in Kentucky.  Seriously, it can save you a lot of headache and money if you just take a cab.  Or, if you are lucky enough to live in Louisville inside the Watterson, take City Scoot.  You may not wake up and be glad that you did.  But if you wake up in jail, you’ll be sorry that you didn’t.

Basic Principle #3: Police are not your friends, and they are not trying to help you.  Police officers have a job to do and they have to justify their job.  Their job is to arrest people.  If you give them any reason to arrest you, even if it is a close call, they will arrest you.

Basic Principle #4: Some police officers know the law and follow it.  Some police officers do not know the law.  Some police officers know the law and choose not to follow the law.

Now let’s meander into the realm of “What to do.”  For the purposes of this conversation, assume that you’ve had a few drinks at dinner, and that you are being pulled over on the drive home.  Assume that you’re feeling some effects of the alcohol, but you wouldn’t consider yourself to be “drunk.”  You aren’t sure whether you would be considered “under the influence” of alcohol.  You’re driving just fine, but you got caught speeding a few miles per hour over the limit.

That brings me to my first point, “How NOT to get pulled over.”  In the above scenario, the easiest way to avoid going to jail is to avoid minor traffic violations.  Before you put the car in gear, make sure you have your seatbelt on, and both of your headlights are illuminated.  Make sure your break lights are functioning.  Make sure you have insurance and up-to-date registration, and that you have proof of both in the car or in your wallet.  Don’t speed.  Make sure to use your blinkers, and obey all traffic signals.  If it says “STOP,” then stop.  Don’t just slow down.

How to Interact with Police:

Keep your proof of insurance behind your license in your wallet.  That way you can pull it out immediately and give it to the officer when you get stopped.  This will avoid a situation wherein the officer writes “Subject had difficulty producing proof of insurance/Subject fumbled around with his documentation” on the citation.

Don’t speak to the police officer.  You have the right to remain silent.  Exercise that right.  This will avoid a situation where the officer writes “Subject had the smell of alcohol on or about his breath/Subject had slurred speech” on the citation.  Instead of speaking, you will remain respectfully silent, hand the officer your documentation and my business card.  On the back, it has a little love letter to the police, informing them that you will not be performing field sobriety tests and that you do not waive your rights.  Which reminds me…

Don’t take Field Sobriety Tests.  Seriously – just stand there and remain respectfully silent.  There is no negative ramification for refusing to take FSTs.  This will avoid a situation where the officer writes “Subject failed FSTs/Subject showed presence of Nystagmus prior to and at 45 degrees, and at maximum deviation/lack of smooth pursuit/Subject could not maintain balance, etc.” on the citation.

Don’t take a Portable Breath Tester.  The PBT is the breathalyzer that police officers carry with them.  There is no negative ramification for refusing to take a PBT.  If you stand silent and refuse to blow, this will avoid a situation where the officer writes “PBT showed presence of alcohol/PBT .08” on the citation.

Doing all of the preceding is the best way to avoid getting arrested.  If you don’t give the police officer enough evidence to constitute probable cause for your arrest, you cannot be arrested.*  If you are actually arrested without probable cause, you need to talk to a good Louisville DUI lawyer immediately.  I can make a motion to dismiss your case for a violation of Constitutional rights (specifically, 4th Amendment). 

I’ve droned on enough about how to interact with police in order to avoid arrest.  At least for today.  If you have any questions about whether you should take the Intoxilyzer Breath Test (not a PBT – this would be the breath test AFTER arrest), the enhanceability of DUI, aggravating circumstances, or other motions to dismiss or suppress in a DUI case, please do not hesitate to call me.

Simms & Reed, PLLC.  Individual Attention.  Extraordinary Results.

If you are charged with a DUI in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, call 502.618.4949 for a free consultation with an experienced Louisville DUI lawyer.  Greg Simms was named in Louisville Magazine's "Top Lawyers" of 2012 for DUI law.  Your case is serious.  Don't trust your DUI case to someone who only practices DUI law "every once in a while."  Call Simms & Reed, PLLC, today.

*Subject to Basic Principle #4.

Questions answered in this post:  What does "under the influence" mean; is it illegal to drink and drive in Kentucky; what am I supposed to do if I get pulled over by the police and I've been drinking; should I take field sobriety tests; should I take a portable breath test; how can I find a good Elizabethtown DUI lawyer; how can I find a good Louisville DUI lawyer; Louisville top DUI lawyers 2012; how do I avoid a DUI in Kentucky?

Free in Kentucky: Illegal Possession of Alligator: Exotic Animal Law...

Free in Kentucky: Illegal Possession of Alligator: Exotic Animal Law...: Pursuant to NBC News, a New York couple was arrested for possession of guns, drugs and an alligator.  The gator was 3.5 feet long, and a p...

Wednesday, October 17, 2012

Free in Kentucky: All You Need to Know About Kidnapping in Kentucky

Free in Kentucky: All You Need to Know About Kidnapping in Kentucky: Pursuant to WLKY: A Louisville man named David Mitchell is accused of trying to kidnap a child after police said he grabbed a child at the...

All You Need to Know About Kidnapping in Kentucky

Pursuant to WLKY: A Louisville man named David Mitchell is accused of trying to kidnap a child after police said he grabbed a child at the L&N Building on Broadway.  Mitchell faces an attempted kidnapping charge.

According to the police, a 1-year-old child was playing on the floor near Mitchell. When Mitchell’s friend came out of an office area, Mitchell reached down, grabbed the child’s arm and tried to leave the building, police said.

The child’s mother yelled and chased Mitchell and her child, according to the report. Police said Mitchell dropped the child in the foyer area and took off.  According to a warrant, Mitchell could be seen on video surveillance grabbing the child and leaving.

Kidnapping is a serious charge in Kentucky.  In this particular instance, Mr. Mitchell is actually accused of trying to take a child.  In most cases, however, Kidnapping is used as a supplementary charge in cases like burglary, robbery, and rape.  I hope I don’t actually have to tell anyone this, but victims in kidnapping cases do NOT have to be “kids.” 

A lot of people believe that the victim has to be taken somewhere else in order to be kidnapped.  That’s not true.  Let’s dive into the statute, shall we?

Pursuant to KRS 509.040, Kidnapping is defined as follows:

(1) A person is guilty of kidnapping when he unlawfully restrains another person and when his intent is:
(a) To hold him for ransom or reward; or
(b) To accomplish or to advance the commission of a felony; or
(c) To inflict bodily injury or to terrorize the victim or another; or
(d) To interfere with the performance of a governmental or political function; or
(e) To use him as a shield or hostage; or
(f) To deprive the parents or guardian of the custody of a minor, when the person taking the minor is not a person exercising custodial control or supervision of the minor as the term "person exercising custodial control or supervision" is defined in KRS 600.020.

(2) Kidnapping is a Class B felony when the victim is released alive and in a safe place prior to trial, except as provided in this section. Kidnapping is a Class A felony when the victim is released alive but the victim has suffered serious physical injury during the kidnapping, or as a result of not being released in a safe place, or as a result of being released in any circumstances which are intended, known or should have been known to cause or lead to serious physical injury. Kidnapping is a capital offense when the victim is not released alive or when the victim is released alive but subsequently dies as a result of:
(a) Serious physical injuries suffered during the kidnapping; or
(b) Not being released in a safe place; or
(c) Being released in any circumstances which are intended, known or should have been known to cause or lead to the victim's death.

Subsection (1)(b) is the subsection that is typically used in Burglary, Robbery or Rape cases, as mentioned, supra.  If a suspect breaks into a home and ties up a couple in order to steal from them, the suspect can be guilty of both Burglary AND Kidnapping.

Subject to subsection (2), the condition of the victim – whether “harmed” or “unharmed” – can determine whether the offender will face a Class B or Class A felony.  Obviously this is a pretty big deal because it can mean the difference between life in prison or getting out and having some sort of life outside prison walls.  Class B felonies carry a penalty of 10-20 years.  Class A felonies are the most serious felonies in Kentucky – offenders face a penalty of 20 years – life in prison.

I’m sure most of the individuals reading this material will never have to know this information.  But I hope you found it informative.

Simms & Reed, PLLC.  Idividual Attention.  Extraordinary Results.

Monday, October 15, 2012

Free in Kentucky: That's Assault, Brother.

Free in Kentucky: That's Assault, Brother.: “Assault” is a weird piece of legalese.  In normal people terms, it means somebody got struck by someone else.   In legal terms, it ha...

That's Assault, Brother.

“Assault” is a weird piece of legalese.  In normal people terms, it means somebody got struck by someone else.  

In legal terms, it has two meanings.  Let’s say Jim and Toby are hanging out at Blandford’s store.  Toby was all like, “you’re book is weak.”  So Jim smacked Toby in the mouf, and then Jim broke out.  Assuming Toby wants to pursue all legal options, he can choose to initiate both Civil and Criminal proceedings against Jim.  Civilly, Jim has committed a “Battery” against Toby.  “Assault,” in civil terms, is an act that puts someone in anticipation of a battery.

Toby can also go to the County Attorney’s office and swear out a charge against Jim.  In criminal terms, the mouf smack was an “Assault.”  Most likely, this would be charged as  “Assault in the 4th Degree” (hereinafter, “Assault 4”) pursuant to KRS 508.030.  A person is guilty of Assault 4, if he or she intentionally or wantonly causes physical injury to another person; or with recklessness, he or she causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

Jim would most likely be prosecuted under subsection 1(a) of KRS 508.030, because he intentionally caused a physical injury (albeit a mild one) to Toby.  Assault 4 is a Class A Misdemeanor, so Jim would be facing up to one (1) year in jail.

Pursuant to the KRS and anyone with a lick of common sense, the act of intentionally striking someone WITH something makes the act more culpable than intentionally striking someone with a fist alone.  That is a common theme with the Assault statutes.  Also, and just as obviously, causing more serious injury to someone will get you in more trouble.

About this time, we should probably dissect the difference between “physical injury” and “serious physical injury.”  And maybe figure out what exactly counts as a “deadly weapon.”  And “dangerous instrument.”  That might be it.  We’ll see - I haven’t really planned this out.

The definitions - if you are following along in the KRS* - are actually located in the “general provisions” of the Kentucky Penal Code section of the KRS - NOT in the Assault section.  So go to the 500 section, not 508.

"Physical injury" means substantial physical pain or any impairment of physical condition.  If you are wondering what “substantial physical pain” means, join the club.

"Serious physical injury" means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.  If you are thinking that this is a pretty high bar for damage in an Assault case, you are right.  This definition provides the basis for some pretty good criminal defense work in the world of Assault.

"Deadly weapon" means any of the following:
(a) A weapon of mass destruction;
(b) Any weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged;
(c)  Any knife other than an ordinary pocket knife or hunting knife; 
(d) Billy, nightstick, or club; 
(e)   Blackjack or slapjack; 
(f) Nunchaku karate sticks;
(g) Shuriken or death star; or
(h) Artificial knuckles made from metal, plastic, or other similar hard material.

No, I didn’t make that up.  The KRS actually uses the words “Nunchaku karate sticks” and “death star.”

"Dangerous instrument" means any instrument, including parts of the human body when a serious physical injury is a direct result of the use of that part of the human body, article, or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury.

Ok - so we’ve defined the words we need to define - let’s move on to other levels of Assault.

Assume that Assault 3 is reserved for Assault on an officer of the law, teacher, or other similar public servant.  We aren’t going to drone on and on about Assault 3.  Don’t hit a public servant.

Rather, let’s move on to Assault 2 - a Class C Felony which carries a penalty of 5-10 years in prison.  As you might imagine, the reason for the increased penalty is because the acts enumerated in the statute are more serious.  Pursuant to KRS 508.020, a person can be guilty of Assault 2 by doing any of the following:

(a) He intentionally causes serious physical injury to another person; or
(b) He intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(c)  He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.

As you can see, in order to be guilty of Assault 2, generally you have to either 1) cause a serious physical injury OR 2) cause a physical injury with a deadly weapon.

That brings us to Assault in the First Degree, or “Assault 1.”  If you take a look at KRS 508.010, you will find the requirements for this particular offense, which are as follows:

(1)      A person is guilty of assault in the first degree when:
(a) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(b)   Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.

Assault 1 is a pretty serious deal.  It is a Class B Felony, which means the actor is facing 10-20 years in prison.

Today, we’ve spent quite a bit of time talking about what makes a person guilty of Assault.  Bear in mind that we haven’t even scratched the surface on defenses to Assault at this point.  Any decent Louisville Assault lawyer would need to study your case in order to determine whether self-defense, anticipatory self-defense, defense of others, choice of evils, or intoxication may be ticket or tickets to your freedom.  Also "some people deserve to be smacked" may work, depending on the alleged victim.

If you have been charged with Assault in Louisville, Lexington, Elizabethtown, Frankfort, or the surrounding areas, you need an attorney.  Call an experienced Louisville Assault lawyer today.  For a free consultation, call 502.618.4949 and ask for Greg Simms.

Simms & Reed, PLLC.  

Individual Attention.  Extraordinary Results.

*If you’re doing that, stop it.

Tuesday, October 2, 2012

Illegal Possession of Alligator: Exotic Animal Law of Kentucky

Pursuant to NBC News, a New York couple was arrested for possession of guns, drugs and an alligator.  The gator was 3.5 feet long, and a picture of the same can be viewed at the following web address:

Want to know about the law on exotic animal possession in Kentucky?  You’re in luck.

Many states have statutes or regulations prohibiting the possession of exotic animals.  Until recently, Kentucky was not one of those states.  You could own just about whatever kind of animal you wanted to, because in this great Commonwealth, we (used to) recognize that this is America.  And you’re supposed to have some individual liberties.

That changed in 2005.

Just because some people who didn’t have enough faith in God got bitten when they took up some exotic beasts, we all have to suffer.*

The current version of the Kentucky Administrative Regulations, and specifically at 301 KAR 2:082, prohibits the ownership of most fun animals.

Even more specifically, the following species are prohibited under subsections 4(1) and 4(2):

      (a) Baya weaver (Ploceus philippinus);
      (b) Blackbirds (Genus Agelaius), except native species;
      (c) Cape sparrow (Passer melanurus);
      (d) Cowbirds (Genus Molothrus), except native species;
      (e) Cuckoo (Family Cuculidae), except native species;
      (f) Dioch or red-billed quelea (Quelea quelea);
      (g) European blackbird (Turdus merula);
      (h) Fieldfare (Turdus pilaris);
      (i) Flying fox or fruit bat (Genus Pteropus);
      (j) Gambian giant pouched rat (Cricetomys gambianus);
      (k) Giant, marine, or cane toad (Bufo marinus);
      (l) Hawaiian rice bird or spotted munia (Lonchura punctulata);
      (m) Jack rabbit (Genus Lepus);
      (n) Java sparrow (Padda oryzivora);
      (o) Madagascar weaver (Foudia madagascariensis);
      (p) Mistle thrush (Turdus viscivorus);
      (q) Monk or Quaker parakeet (Myiopsitta monachus);
      (r) Multimammate rat (Genus Mastomys);
      (s) Mute swan (Cygnus olor);
      (t) Nutria (Myocastor coypus);
      (u) Prairie dog (Cynomys spp.);
      (v) Raccoon dog (Nyctereutes procyonoides);
      (w) San Juan rabbit (Oryctolagus cuniculus);
      (x) Sky lark (Alauda arvensis);
      (y) Song thrush (Turdus philomelus);
      (z) Starling (Family Sturnidae) including pink starlings or rosy pastors (Sturnus roseus), except for Indian Hill mynahs (Gracula religiosa);
      (aa) Suricate or slender-tailed meerkat (Genus Suricata);
      (bb) Tongueless or African clawed frog (Xenopus laevis);
      (cc) Weaver finch (Genus Passer), except Passer domesticus;
      (dd) White eyes (Genus Zosterops);
      (ee) Wild European rabbit (also called the San Juan Rabbit) not distinguishable morphologically from native wild rabbits;
      (ff) Yellowhammer (Emberiza citrinella); or
      (gg) A member of the following families:
      1. Suidae (pigs or hogs), except for domestic swine;
      2. Viverridae (civits, genets, lingsangs, mongooses and fossas); or
      3. Tayassuidae (peccaries and javelinas).

      (2) Except as specified in Section 5 of this administrative regulation, a person shall not import or possess the following species of inherently dangerous wildlife:
      (a) Alligators or caimans (Family Alligatoridae);
      (b) African buffalo (Syncerus caffer);
      (c) Bears (Family Ursidae);
      (d) Cheetah (Acinonyx jubatus);
      (e) Clouded leopard (Neofelis nebulosa);
      (f) Crocodiles (Family Crocodylidae);
      (g) Elephants (Family Elephantidae);
      (h) Gavials (Family Gavialidae);
      (i) Gila monsters or beaded lizards (Family Helodermatidae);
      (j) Hippopotamus (Hippopotamus amphibius);
      (k) Honey badger or ratel (Mellivora capensis);
      (l) Hyenas (Family Hyaenidae), all species except aardwolves (Proteles cristatus);
      (m) Lions, jaguars, leopards or tigers (Genus Panthera);
      (n) Old world badger (Meles meles);
      (o) Primates, nonhuman (Order Primates);
      (p) Rhinoceroses (Family Rhinocerotidae);
      (q) Snow leopard (Uncia uncia);
      (r) Venomous exotic snakes of the families Viperidae, Atractaspididae, Elapidae, and Colubridae, except for hognose snakes (Genus Heterodon);
      (s) Wolverine (Gulo gulo); or
      (t) Hybrids of all species contained in this list.

If you acquired your Gila Monster prior to July 13, 2005, if it hasn’t eaten you, and if you wish to keep it, you should read subsection (5) which states: “(5) A person who legally possessed wildlife listed in Section 4(2) of this administrative regulation prior to July 13, 2005, may continue to possess the animal and shall maintain:
      (a) Veterinary records;
      (b) Acquisition papers for the animal; or
      (c) Any other evidence that establishes that the person possessed the animal in Kentucky prior to July 13, 2005.”

That's all I got.  Hope you enjoyed this post.

If you or someone you know has been cited or arrested for harboring a dangerous exotic animal, call 502.473.6464 for a free consultation.  Murphy & Powell, PLC.

*May or may not have anything to do with this law.

Tuesday, September 25, 2012

Free in Kentucky: Heroin Possession in Kentucky: Penalties, etc.

Free in Kentucky: Heroin Possession in Kentucky: Penalties, etc.: Heroin is back. I’m not sure why, but it’s back.  In a big way.  I wish I could give you some statistics regarding how many more cases...

Heroin Possession in Kentucky: Penalties, etc.

Heroin is back.

I’m not sure why, but it’s back.  In a big way.  I wish I could give you some statistics regarding how many more cases of heroin possession have made their way through Kentucky courthouses than, say, five years ago – but I don’t have that information.  All I can tell you is that five years ago I saw very few heroin cases, and over the past 12 months, heroin possession has become a lot more prevalent.

Heroin is a Schedule I narcotic, pursuant to KRS 218A.050(2), which defines all Opium derivatives as such.  Schedule I is the classification for the most dangerous drugs, those which are considered to have a high potential for abuse and are generally without medicinal value.  This criteria for classification is enumerated in KRS 218A.040 (and, if I can recall correctly, it is borrowed from the language in federal statutes for drug classification).

Possession of a Schedule I narcotic, like heroin, is a pretty serious deal in Kentucky.  The name of the crime is Possession of a Controlled Substance in the First Degree (known in the legal community as POCS 1– pronounced “pocks first”).  It is a class D felony, carrying a penalty of 1-3 years.

Typically, a class D felony carries a penalty of 1-5 years, but fortunately for everyone who likes a hit of laudanum when the headaches start, house bill 463 (HB 463) came through Kentucky like a tornado of common sense and eased some of the penalties for non-violent, victimless drug possession.

Guess what else is a Schedule I narcotic.

Ok, seriously, we’re not going to play this game if you’re not going to guess.

It’s marijuana.  Marijuana is a schedule I narcotic in Kentucky (and in many other places).  “But Greg!?” you ask, “Didn’t you say that the criteria for schedule I narcotics includes 1) the high potential for abuse and 2) a lack of medicinal value?”  That’s a phenomenal question and I’m glad you asked it.  The answer is yes, and it appears that Kentucky legislators are completely ignoring the AMA, and countless doctors that have unequivocally stated that marijuana does have medicinal value.  Further, the fact that marijuana is not physically addictive seems to be ignored, regarding the “high potential for abuse” issue.

That does NOT mean that possession of marijuana counts as POCS 1.  There is a more specific statute governing marijuana possession, and whenever a general statute and a more specific statute conflict, you are supposed to rely on the more specific statute.  For more on marijuana, see my post “How Much Marijuana is Too Much Marijuana?”

We got a little off track today, because today’s post was supposed to be about heroin.  Sorry about that.  I just wanted to show you that your government thinks heroin and marijuana should be classified in the same category.  Which is asinine.

Long story short – heroin is back and possession of heroin can get you in a lot of trouble.

If you have been charged with Possession of a Controlled Substance in the First Degree, you should have a lawyer that knows the law and fights for your rights.  Don’t get a lawyer who “dabbles” in drug possession law.  Get an experienced Louisville drug possession lawyer.  Call 502.618.4949 for a free consultation.  Ask for Greg Simms.

Simms & Reed, PLLC.  Individual Attention.  Extraordinary Results.

Thursday, September 6, 2012

Free in Kentucky: Louisville Detective Shoots Unarmed Man in Street

Free in Kentucky: Louisville Detective Shoots Unarmed Man in Street: Not all police officers are bad.  I promise.  Most are upstanding servants of the community, actually.  I see a lot of cops and I cross ex...

Louisville Detective Shoots Unarmed Man in Street

Not all police officers are bad.  I promise.  Most are upstanding servants of the community, actually.  I see a lot of cops and I cross examine the best and the worst of them.  

Then I sue the worst of them for false arrest and police brutality.

Speaking of which, a Louisville Metro Police Detective shot an unarmed man Tuesday night right in the middle of the damn street.  Everybody take a guess now as to whether the Detective has been arrested for Attempted Murder.  Also guess whether the Louisville Metro Police Department is taking any responsibility.  Let’s see how you do…

Per WLKY:  “A veteran police officer is on administrative leave (which happens after every officer shooting, justified or not) after shooting an unarmed man in the street.  WLKY has learned the officer has been disciplined by the department before. 

The shooting happened near 24th and Chestnut streets late Tuesday night. 

A neighbor heard the single shot fired and ran outside. 

"I looked again and I saw this guy standing there with a gun on him," said a neighbor.  The man with the gun was Detective Chauncey Carthan, who has worked for LMPD since 2001. 

Police say Carthan was off duty when he got into an argument with another man and it quickly escalated. 

‘At some point, both the officer as well as the individual exited their vehicles, at which time the officer did identify himself. However, the subject, or rather the individual, did not comply with the officer, leaving him to draw his weapon and discharge it one time,’ said LMPD spokewoman Alicia Smiley. 

Other officers arrived on the scene, surrounded Carthan and surrendered his weapon.  The man he shot was taken to the hospital and is expected to survive.

Apparently there are no charges yet against Carthan.  So if you guessed “No.” to the first question posed, congratulations!

Let’s see if LMPD is taking any responsibility…

LMPD seems to know something is wrong with this situation because they seem to be distancing themselves from Detective Carthan.  Specifically, they made it a point to say that he was “off duty.”  I would guess they’re doing this to set themselves up for a defense in any law suit that will follow (and if the gunshot victim calls me, that law suit will happen very quickly).  What they want everyone to know is: Detective Carthan shot that guy outside the scope of his employment.

But that might not work very well.  Because LMPD wants the best of both worlds here.  Instead of just distancing themselves from Carthan, they also made the statement that the “subject, or rather the individual, did not comply with the officer” which I laughed out loud at.  First, the spokeswoman for LMPD accidentally called the gunshot victim a “subject” which is akin to “person we suspected of committing some sort of crime.” and then she stated that the gunshot victim did not “comply” with the Detective.  That means that the Detective would have been acting as a police officer and giving some sort of official instruction that the gunshot victim would have to follow – but didn’t follow.

I'm not saying the gunshot victim didn't do anything wrong, but we certainly don't have any evidence of any wrongdoing at this time.  And he was UNARMED.  So whatever he may be accused of doing, it probably didn't justify a gun shot.

If this off duty Detective really did shoot an unarmed man in the street, there needs to be an investigation into the possible CRIMINAL CONDUCT of the Detective.  Make no mistake about it, blog reader – if you or I had shot an unarmed man in the street, we would be in handcuffs right now.  By not taking responsibility and not arresting Carthan, LMPD may only be increasing the damages in the subsequent law suit.

As I hear more on this story, I will keep you updated.

If you or someone you know has been shot by the police in the street, and you were unarmed, you should call a lawyer immediately.  It isn’t easy to find a Louisville police brutality lawyer.  A lot of attorneys will not take these kind of cases because they are difficult, and require a lot of work.  You deserve to have a lawyer on your side who cares about your case.  You deserve a lawyer who isn’t afraid of the work that needs to be put into your case.  Call 502.618.4949 and ask for Greg Simms.

Simms & Reed, PLLC.
Individual Attention.  Extraordinary Results.