Friday, May 23, 2014

Free in Kentucky: Brief on Unconstitutionality of Kentucky Implied C...

Free in Kentucky: Brief on Unconstitutionality of Kentucky Implied C...:        Today's post is primarily for my criminal defense attorney friends.  Others may find it a bit technical and nerdy.  But if you...

Brief on Unconstitutionality of Kentucky Implied Consent Statute

       Today's post is primarily for my criminal defense attorney friends.  Others may find it a bit technical and nerdy.  But if you like that kind of stuff, hey - knock yourself out.  Happy reading.

       One problem I've found with lawyers is that too often, we get caught in the weeds.  Everyone is caught up in the details of how to apply a specific case to a set of circumstances, or how culpable a client's conduct is by the wording of the current statute.  What we don't do often enough - is back up.  Take it all in.  We don't stop to think "Why is this law any good?  Why are we following it?"

        I'd like you to keep that sort of mentality as we discuss the Kentucky Implied Consent Statute.  You can refresh yourself on implied consent at KRS 189A.103-107.  And again, let's back up.  Take it all in.  The reason states have these statutes is to get around the 4th Amendment.  It's an attempt to make a police officer's job easier.  I don't say that in a grand conspiracy theory way - I just mean that states have decided that it would be a good thing to give motorists an incentive to submit to blood, breath or urine testing.  And so, they've built consent right into the law.  The way states justify forcing consent on people is this:  Driving is a privilege.  Not a right.  So if you don't want to consent, you don't have to drive.

       There are a couple problems with this sort of logic.  When does driving become a right?  The answer is, it kind of already is.  There is a property right recognized in drivers licensing, after someone passes the test.  In fact, you get a little card that you have to pay money for.  And you have a property right in that card.  The right to drive is recognized by every court in the United States.  That's why they don't take your license without a hearing.  They recognize the due process requirement that comes with taking a right - not a privilege.
        Whether you believe driving on the roadway is a "Right" or not, the DUI statute still infringes on driving rights.   DUI statute in Kentucky specifically states that you can be charged with DUI anywhere in the state.  That means that you don't have to be on a Kentucky roadway.  You can be on private property.  The truth is you can be charged with DUI driving a farm truck on your own farm.

       But Greg!?  You don't have to have a license to drive a farm truck on your own property, do you!?  
       I like where your head's at.  And you're correct.  You don't have to have a license to drive on your own property.  So driving, in that case, is a right that comes with using your own property - the farm truck.  Driving in that instance is certainly a right.  Not a privilege.  

       How can the implied consent statute force consent on people based on the concept that driving is a privilege, when the DUI statute covers driving that is a right, and not a privilege!? 
        Another good question.  And nobody has really challenged the implied consent statute on these grounds.  Recently, however, the United States Supreme Court gave us defense lawyers some good fodder for defending blood tests which were taken on the basis of implied consent.  That's where our conversation is going today.  I've started filing these motions in every DUI case I have.  Today I'm going to provide you with a brief that you can literally copy and paste into your own motion to declare the Kentucky Implied Consent statute to be Unconstitutional.  Print out a copy of the Duncan case to attach to your brief.  And remember to serve a copy on our Attorney General, so that they can have a chance to respond.  Here it is:
      The Supremacy Clause in Article Six, Clause 2 of the US Constitution establishes the U.S. Constitution, federal statutes, and U.S. treaties as "the supreme law of the land". It provides that these are the highest form of law in the U.S. legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either the state constitution or state law  of any state.  The text of the Supremacy Clause is as follows: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
            Thus, when any state law conflicts with the United States Constitution, the state law must fail.
            The problem with the Kentucky implied consent statute is that it requires drivers to submit to a blood draw, without requiring the police to obtain a warrant.  The Kentucky law conflicts with and attempts to circumvent the 4th Amendment of the US Constitution.
            Recently, the issue of implied consent for blood draw has come before the United States Supreme Court.  In Missouri v. McNeely, 133 S.Ct. 1552 (2013), the state sought to uphold the implied consent requirement (similar to Kentucky’s) by arguing that a warrant was not necessary in the case of a DUI blood draw, because the officer has probable cause and exigent circumstances.  The state argued that the natural metabolism and expiration of alcohol presented an exigent circumstance which justified an invasive body search – a blood draw - without a warrant.  The Court in McNeely said:

       The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances. Id.

            The Court in McNeely refused to allow an Implied Consent statute (nearly identical to the Kentucky statute) justify the warrantless search.  The Kentucky Court of Appeals has addressed the McNeely case in Duncan v. Commonwealth, a copy of which is attached hereto.  The Commonwealth has filed a motion for Discretionary review to the Kentucky Supreme Court in Duncan and the case is not yet final.
            In Duncan, the officer then asked Duncan to submit to a blood test, which Duncan refused. He did agree, however, to submit to a breathalyzer test at the station. The officer refused, and Duncan was arrested. Id.  Duncan argued that the officer’s request that he submit to a blood test rather than a breathalyzer or urine test was in error. The Kentucky Court of Appeals agreed.
            The question presented in Duncan was “Whether the law of Kentucky (the implied consent statute) allows an arresting officer to choose whether a suspect be offered a blood test rather than a breathalyzer test is a matter of law.” (clarification added).  Id.  The Kentucky Court of Appeals held that it does not and reversed and remanded the case.

            If the McNeely and Duncan cases mean anything at all, they must, at the very least, stand for the proposition that the mere fact that one drives on the road in Kentucky does NOT mean that they consent to a blood draw.  And therefore, the Implied Consent statute in Kentucky must be invalid.  In order to go inside someone’s body for a search, the police must have a warrant or actual verbal consent.  The protection of the 4th Amendment of the US Constitution cannot be circumvented by state statute.

       WHEREFORE, the Defendant respectfully demands that this honorable Court declare the Kentucky Implied Consent Statute to be Unconstitutional.

If you have any more questions, don't hesitate to call me, Greg Simms, at 502-618-4949.  

Questions answered in this blog post: What is Kentucky Implied Consent law; How does the 4th Amendment affect Kentucky Implied Consent law for DUI; how do I find a Louisville DUI lawyer; how do I find a good Elizabethtown DUI lawyer; who was named one of Louisville's best DUI lawyers according to Louisville Magazine Top Lawyers (this blog doesn't actually answer that - I just like to brag).

Monday, May 5, 2014

Free in Kentucky: Expungement: Why You Need One

Free in Kentucky: Expungement: Why You Need One: Expungements are a beautiful thing. There aren’t many of us who didn’t engage in some sort of youthful indiscretion in high school, col...

Expungement: Why You Need One

Expungements are a beautiful thing.

There aren’t many of us who didn’t engage in some sort of youthful indiscretion in high school, college, or a couple years ago at Churchill.  Most of us share that common thread.  But we’ve moved on.  Grown up.  Made the conscious decision to walk the straight and narrow.  We’re going to be better.

Fortunately for you and for me, the law offers us a little shake to the etch-a-sketch of our criminal histories.  An expungement will allow us to wipe that slate clean, as if those youthful indiscretions never ever happened.

Why do I need an expungement if I got a Dismissal?  Good question and I’m glad you asked it.  Dismissals mean that someone doesn’t have any further punishment under the law, and does not stand convicted of a crime.  However, that does NOT mean that the criminal history goes away.  It is not erased.

Let’s say, for example, you try to get a new job.  Some places ask if you’ve been convicted of a felony or misdemeanor crime.  Other places specifically ask whether you have been CHARGED with a crime.  If you have a case that was dismissed, but not expunged, that kind of place will be able to find out that you were charged with a crime years ago, even though it was dismissed.  If you get an expungement done, they will not find any such thing on your record.

If you want something “erased” in Kentucky, expungement is the only way to go.  It is a cheap and easy process, and you should call me today at 502-618-4949 to make sure that you qualify for the process.

Recently, there have been some changes to the procedure of expungement – there is another step or 2 involved, and it takes another couple weeks to complete.  If you’d like to know the details on that, feel free to give me a call at the above number.

Have a phenomenal week.