Free in Kentucky: It's That Time of Year Again: Can I Get a DUI for ...

Free in Kentucky: It's That Time of Year Again: Can I Get a DUI for ...: Question: Can I get a DUI mowing the grass on my own property (assuming it is a riding lawn mower)?  Answer: Some people like to party. Som...

It's That Time of Year Again: Can I Get a DUI for Drunk Lawn Mowing?

Question: Can I get a DUI mowing the grass on my own property (assuming it is a riding lawn mower)? 

Answer: Some people like to party. Some people like a nicely trimmed lawn.  Some people like Uncle Sam to leave them alone when they are on their own property.  For all of those people, this blog post is for you.

Any Louisville DUI lawyer worth their salt will tell you that KRS 189A is the statute that controls DUI in Kentucky.  It is a long statute, so I will only post the pertinent sections:

(1) A person shall not operate or be in physical control of a motor vehicle anywhere in this state:

    (a) Having an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person's breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle;

       (b) While under the influence of alcohol;

There are a lot of elements, facets, ifs, ands, and what-have-yous to DUI.  For the purpose of this discussion I will concentrate on 2 portions - 1) the interpretation of the term “motor vehicle” and 2) the geographical scope of the law.

First, the question is this:  Does a riding lawn mower count as a “motor vehicle?”

Turning to the caselaw of this great Commonwealth, we find a couple of cases that are (sort of) on point.  Let’s start with mopeds.  Not surprisingly, in Adams v. Com., 275 S.W.3d 209 (Ky. Ct. App. 2008), the Kentucky Court of Appeals found that a moped is a “motor vehicle” for defining DUI offenses.  For those who think drinking and plowing sounds like a great way to spend a Saturday, I direct your attention to Nemeth v. Com., 944 S.W.2d 871 (Ky. Ct. App. 1997), wherein the same Court found that farm tractors count as motor vehicles.

Finding no case about lawn mowers (although I swear I have read one), we will turn to the reasoning in the Adams case for direction.  Without boring you to death, the Court in Adams found a moped to be a motor vehicle because it has a motor and it is a means of transporting a person.  If a Kentucky Court applied theAdams reasoning, they would most likely come to the conclusion that a riding mower is a motor vehicle - as it also has a motor and can transport a person.

But what if you are not George Jones and you have no intention of taking your Husqvarna to the local bar?  What if you intend to stay on your own property and mow your own lawn?  This question brings us to the geographic scope of the law - which is broad.

Our Kentucky Supreme Court tackled the issue of DUI on private property in Lynch v. Com., 902 S.W.2d 813, 815 (Ky. 1995).  The Court found that an arrest for DUI on private property is indeed proper.  Apparently, the first sentence of KRS 189A is read strictly, and “anywhere in the state” really means “anywhere in the state.”

So the answer is “Yes.  You can get a DUI mowing the grass on your own property.”

DUI is a serious charge.  Don’t trust your case to a lawyer who handles DUIs “every once in a while.”  If you have a DUI charge in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, call an experienced Louisville DUI lawyer at Simms & Reed, PLLC.  There is no charge for an initial consultation, so call 502.618.4949 today.  

Results.  As fast as the law will allow.

Free in Kentucky: The Cracker Barrel Killings and Extreme Emotional ...

Free in Kentucky: The Cracker Barrel Killings and Extreme Emotional ...: Some of you may have heard the tragic story of the recent deaths at Cracker Barrel Resraurant outside of Cleveland, OH.  For those of you wh...

The Cracker Barrel Killings and Extreme Emotional Disturbance

Some of you may have heard the tragic story of the recent deaths at Cracker Barrel Resraurant outside of Cleveland, OH.  For those of you who haven’t heard, the reports go something like this-

According to ABC News: A man whose wife had just told him she was leaving him [that part is especially important to our conversation today] shot and killed her and one of their daughters, who was celebrating her birthday, inside a crowded Cracker Barrel restaurant in a Cleveland suburb, then was killed by police as he fled [other reports indicate he “refused to surrender” rather than “fled”].

Kevin Allen came into the restaurant [I am still confused as to whether Kevin Allen went with the family to Cracker Barrel initially, left and came back, or whether they went without him] in suburban Brooklyn on Thursday night with a shotgun and, witnesses said, "selectively" fired on his family. The shooting created panic and confusion in the restaurant, and a manager helped get people out through a rear door, a witness said.

In addition to the death of Katherina Allen, 42, and Kerri Allen, 10, the couple's other 10-year-old daughter, Kayla, was wounded and in critical condition, authorities said. According to police records, Thursday was Kerri Allen's birthday [I assume the 2 daughters named Kerri and Kayla, who were both 10 years old, were twins.  But I don’t know that to be fact.  Maybe they were Irish Twins].

Obviously this is a startling and very tragic story.  Especially considering the children involved, one of whom will grow up without her mother, father, and sister.

Today, I’d like to talk to you about Extreme Emotional Disturbance (hereinafter, “EED”).  I don’t know anything about this story except what has been reported, so for the sake of today’s conversation, let’s assume the above reports are true and accurate.  The question for the day is (assuming he had lived and would be able to be tried before a jury): would Kevin Allen be found guilty of Murder?

Murder is a specific homicide crime, defined and governed in this great Commonwealth by KRS 507.020.

(1) A person is guilty of murder when:

(a) With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a prosecution for or preclude a conviction of manslaughter in the first degree or any other crime; or

(b) Including, but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.

(2) Murder is a capital offense. [meaning the state can kill you for committing the crime] [boldness added for emphasis]

The interesting part about the Murder statute in Kentucky, as you can see above, is that EED is not just a defense to Murder; the Commonwealth must prove a lack of EED as an element of the offense.  If they fail to do so, and the jury believes that EED is present, then the more appropriate conviction should be under Manslaughter in the First Degree, KRS 507.030, which states, in pertinent part: With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in subsection (1)(a) of KRS 507.020. (2) Manslaughter in the first degree is a Class B felony.

Since a Class A Felony carries 20 years to life (and possibly the death penalty), but a Class B felony carries a punishment of 10-20 years, it can mean the difference between having a life after prison, or not having a life outside of prison.  Obviously, the element of EED can be extremely important.

So what does it mean, exactly?  Good question, I like the fact that you’re paying attention.  The classic example of EED is: Man comes home and finds wife in bed with stranger.  Man goes off the deep end and shoots wife and stranger.  Man committed what would have been Murder, but because he was in a pretty jacked up situation, and had a flood of feelings and emotions come over him, we're going to ease up on him a bit.  The extreme emotional disturbance that Man was under will lessen the crime to Manslaughter in the First Degree.

The same sense of overwhelming emotional turmoil may very well have been present in Kevin Allen’s mind at the time of the Cracker Barrel killings.  The report states that his wife expressed the fact that she was leaving to Kevin.  The reports aren't clear, but it looks like she went to Cracker Barrel without him to celebrate their daughter's birthday without Kevin.  Assuming Kevin really believed his wife was leaving him and that he may never see his children again, I think a lot of jurors would genuinely believe that Kevin was under extreme emotional disturbance, taking the facts from Kevin’s viewpoint, as Kevin believed them to be.

Or maybe not.  If I was a prosecutor, I would probably try to convince the jury that if Kevin believed his family was going to be taken away from him, it would only be logical that Kevin would have focused that rage on his wife alone, whom he believed to be the cause of his broken family.  He wouldn’t have turned on his daughters.

But that might be injecting a level of logic that isn’t present in someone who is genuinely under extreme emotional disturbance.  Right?  I mean the whole point is that we, as a society, are going to allow mitigation of the punishment due to the fact that some extreme circumstances can make a person act extremely illogically.  Am I wrong?  

Maybe I should stop asking.  I guess we’ll never know how a jury would have ruled on this.

Murder is a capital offense in Kentucky.  It is an extremely serious charge.  If you are charged with Murder, you need a lawyer who understands the law and is willing to fight for your Constitutional Rights.  Call 502.618.4949 today for a free consultation about your case.  Simms & Reed, PLLC.  Results.  As fast as the law will allow.

Free in Kentucky: UK Madness: Riots On the Streets of Lexington, KY!...

Free in Kentucky: UK Madness: Riots On the Streets of Lexington, KY!...: Tipoff for the NCAA men’s basketball championship is tonight at 9:23pm.  The University of Kentucky will be representing this fine Commonwea...

UK Madness: Riots On the Streets of Lexington, KY!!!

Tipoff for the NCAA men’s basketball championship is tonight at 9:23pm.  The University of Kentucky will be representing this fine Commonwealth in said championship, and is favored to win by 84 points.*  Regardless of whether you are a UK fan, or a fan of UofL, Murray State, Morehead, EKU or WKU, I hope we can all follow the advice of the Honorable Rick Pitino, who addressed the basketball fans in this state, and was quoted after the Final Four game as saying, “For those that have brains, they root for each other.”

I am a Cards fan.  But I will certainly be cheering on the Cats to victory tonight – Bring that big trophy back to the Commonwealth, boys!  Having any Kentucky institution in the National Championship is good for all of us.  Go Cats!

On that note – I don’t know if you’ve been following the news lately, but there have been some rowdy fans in Lexington lately.

As reported by a semi-reputable internet site: “Post-game revelry in Lexington turned to destruction and fire-setting Saturday night as University of Kentucky fans swarmed the streets surrounding campus, prompting police in riot gear to move in.

College antics in alcohol-fueled celebrations of UK’s Final Four victory quickly escalated, as young people set couches and two cars ablaze and hurled beer cans into clusters of party-goers.

Firefighters responded to about 50 nuisance fires, mostly couches set afire on purpose, according to Battalion Chief Ed Davis of the Lexington Fire Department. Ten people were injured, he said.

Two car fires were set on State Street.”

Concerning the wide open, stuff-to-the-wall partying, Joey Frederick, who joined the revelry in Lexington, was quoted, saying, “We are the best team in America,” he said. “I think houses should burn.”

Although I don’t quite follow Mr. Frederick’s “logic,” this blog post is for people like Joey.

Let’s talk about Riot.  Pursuant to KRS 525.010, “Riot” is defined as “a public disturbance involving an assemblage of five (5) or more persons which by tumultuous [loud, excited or emotional] and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs law enforcement or other government function.”  [definition added for Joey].

I know that some people like to party.  And those people are infrequently deterred from partying by the legal consequences thereof.  But if you intend on engaging in the above behavior, you should be advised that participating in a riot can be against your penal interest [can get you in trouble with “the law”].  KRS 525.020 governs Riot in the first degree, and provides as follows:

(1) A person is guilty of riot in the first degree when:

(a) He knowingly participates in a riot; and

(b) In the course of and as a result of such riot a person other than one (1) of the participants suffers physical injury or substantial property damage occurs.

(2) Riot in the first degree is a Class D felony.

Without droning on the subject, just trust me, turning over cars and lighting couches on fire constitute “substantial property damage.” 

The interesting thing about Riot is that you can be criminally responsible for someone else’s conduct.  If you run out on to State Street, with the knowledge that people are rioting, and you run around celebrating with everyone else, you do NOT have to be the person who causes the damage in order to be punished under this subsection of the KRS.  And, in fact, you could be facing a felony [crime that involves a punishment of over a year in prison].  Specifically, if you are found guilty of Riot in the first degree, you would be facing up to five (5) years in prison [definition added for Joey].

If no substantial property damage were to occur, the participant can still be criminally liable under KRS 525.030, for Riot in the second degree.  It is defined as follows:

(1) A person is guilty of riot in the second degree when he knowingly participates in a riot.

(2) Riot in the second degree is a Class A misdemeanor.

If you do not wish to participate in the riot, but would rather encourage others to do so, you should be aware that KRS 525.040 may prohibit that conduct as well:

525.040   Inciting to riot.

(1) A person is guilty of inciting to riot when he incites or urges five (5) or more persons to create or engage in a riot.

(2) Inciting to riot is a Class A misdemeanor.

Although I do not condemn Public Intoxication in the moral sense, I would like to inform you that it can be illegal.  KRS 222.202 defines Alcohol intoxication in a public place, and states:  “222.202   Offenses of alcohol intoxication or drinking alcoholic beverages in a public place.
(1) A person is guilty of alcohol intoxication when he appears in a public place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property, or unreasonably annoy persons in his vicinity.”

And although the aforementioned statute sets a high bar for public intoxication (“manifestly under the influence of alcohol to the degree that he may endanger himself…”) I would just like to caution you that a lot of police officers seem to ignore that high bar, and will arrest you even if you seem a little drunk.

Also related to this conversation is Disorderly Conduct, or as some criminal defense lawyers call it, “DC2.”

525.060   Disorderly conduct in the second degree.

(1) A person is guilty of disorderly conduct in the second degree when in a public place and with intent to cause public inconvenience, annoyance, or alarm, or wantonly creating a risk thereof, he:

(a) Engages in fighting or in violent, tumultuous, or threatening behavior;

(b) Makes unreasonable noise;

(c) Refuses to obey an official order to disperse issued to maintain public safety in dangerous proximity to a fire, hazard, or other emergency; or

(d) Creates a hazardous or physically offensive condition by any act that serves no legitimate purpose.

(2) Disorderly conduct in the second degree is a Class B misdemeanor.

Any partying aftermath of the National Championship game would not constitute Disorderly Conduct in the First degree, unless there was a funeral going on simultaneously.  But that is a conversation for another time.

I hope this was informative.

If you get arrested for Riot, Disorderly Conduct, or Public Intoxication in the wake of a National Championship celebration, call a Louisville criminal defense lawyer who will fight for you.  Call 502.618.4949 and speak to an attorney at Simms & Reed, PLLC today. 

Simms & Reed, PLLC.  Results.  As fast as the law will allow.

*This blog may contain fabricated statistics, “facts,” and/or odds.