For everyone who has asked me: "Can I shoot somebody if..."

I don’t often write about “serious crimes” in my blog.  I suppose it’s because I want the blog to be relevant to the lives of the majority of the people who read this thing.  Hopefully you guys will be able to actually use some of the information contained herein.  And the average person is pretty likely to have an issue regarding DUI or drug possession - rather than Murder.

However, on occasion, people ask me about when and how they can defend themselves.  Bigger crimes make up a significant percentage of my practice - and self-defense is a defense I have used many times.  And this week, self-defense is especially relevant to my practice, as I just picked up a new Murder case out of Lexington.  It looks like self-defense is going to play a huge role in the case, so let’s talk a little bit about when and how you can defend yourself.  I usually get this question in several forms:

Can I shoot somebody if they don’t have a gun, but they are threatening me with something else?

Can I shoot somebody if they are breaking into my house, or do they have to be trying to hurt me?

Can I shoot somebody if they are threatening someone else but not me?

KRS 503.050 governs the use of force in self-defense.  It reads:

503.050 Use of physical force in self-protection -- Admissibility of evidence of prior acts of domestic violence and abuse.

(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.

(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.

(3) Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section.

(4)  A person does not have a duty to retreat prior to the use of deadly physical force.

Sections 1, 2, and 4 will be the most important to today’s discussion.  Subsection (1) basically says that you can defend yourself when you believe it is necessary to do so.  But there are some nuances that should be addressed.  It is significant that the requisite “belief” in the need for self defense is a very subjective standard.  The law does not require this belief to be a reasonable belief, or a belief that others in similar situations would also hold.  Only the actor needs to believe that self-defense is necessary.  Also significant is the wording of the last part of subsection (1).  It allows a person to defend themselves not only against the use of unlawful physical force, but also the “imminent use” of unlawful physical force.  This is what we call “anticipatory self-defense” and is not allowed in all states.  Personally, I believe that anticipatory self-defense is very reasonable - it means you don’t have to take a punch in the face before you defend yourself.

Subsection (2) answers all of the “can I shoot someone” questions.  It addresses the use of deadly force in self-defense.  Boiled down, it says that you can shoot someone (or use some other type of deadly force) when you believe it is necessary to protect yourself against death, serious physical injury, kidnapping, sexual intercourse (which would be against your will), or the circumstances found in KRS 503.055.

So let’s tackle question 1) Can I shoot somebody if they don’t have a gun, but they are threatening me with something else?  Under KRS 503.050 the answer is: It depends.  Do you feel like they are going to cause you serious physical injury?  Specifically, the Kentucky Revised Statutes define “serious physical injury” as 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.  So I think you’re safe to kill someone in self-defense if somebody comes at you with any dangerous weapon which can create a substantial risk of death.  If they have a knife, yes.  If they have a whiskey bottle, maybe.  If they have a Wiffle ball bat, don’t shoot them.  To quote Adam Sandler, “put up your dukes like 30s style boxing.”

Question 2) Can I shoot somebody if they are breaking into my house, or do they have to be trying to hurt me?  Again, the question needs to be answered by the mental state of the shooter.  Do you believe it is necessary to protect yourself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055?  If so,  you can pull the trigger.  And although “reasonableness” of the belief held by the shooter is not necessary, I would certainly want to show reasonableness to a jury.  So it would help if it was at night when the burglar/shot victim was crawling through your window.  A lot of people think it is more reasonable that you might be harmed by a burglar breaking in at night than during the day.

The last question is number 3) Can I shoot somebody if they are threatening someone else but not me?  The answer, generally, is yes.  But this is a section for another night, when I’m not watching television drinking a manhattan.

Lastly, it is important to note subsection (4) of KRS 503.050.  This great Commonwealth of Kentucky is a “no retreat state.”  If somebody is posing an imminent threat to you, pursuant to above, you can defend yourself without turning around, tucking your tail between your legs, and trying to run.  No offense to the states who require retreat.  But seriously - cowboy up.

Homicide is an extremely serious charge.  You should make sure you have a lawyer who has handled numerous homicide cases.  Specifically, ask the lawyer you speak with if they have handled Kentucky murder charges before, and if they have ever taken a homicide case to a jury trial.  If you are charged with Murder, Manslaughter, or Reckless Homicide in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding regions, call the experienced criminal defense lawyers at Gruner & Simms, PLLC at 502.618.4949.

Nothin' says "Summer" like shotgunning a beer and mowing the lawn...

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 the Adams 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 Gruner & Simms, PLLC.  There is no charge for an initial consultation, so call 502.618.4949 or visit www.grunersimms.com today.  

Results.  As fast as the law will allow.

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Walgreens is the New Tommy Chong: Everyone with a Prescription is a Criminal

Let’s say your grandmother’s memory isn’t quite as sharp as it once was.  And she has some pills.  Let’s assume Grandma got those pills from a legitimate Doctor, and not a street pharmacist.  The only problem is that Grandma has a little trouble remembering to take her pills - and when she does, sometimes she can’t remember that she has actually taken them, and she might take the pills multiple times without realizing it.  The very realistic danger is that she may not actually take them, or may overdose on the pills she takes.  So she goes to the local pharmacist and picks up one of those “days of the week” pill containers.  You know the ones – they have seven little boxes, all connected, in a row.  Each one of the boxes has a little letter on them and they read, “S M T R F S.”  Right?  She takes the container home and puts her pills in it, so that she can remember to take them, and only the right amount of them.  Problem solved.

New problem.  Let’s talk about drug charges.  Because Grandma found a very rational way to solve a legitimate problem, using a product she found at a reputable store, Grandma just did something illegal.  Grandma is facing 90 days in County, bunking with the crazy chick from down the block who just stabbed her ex-boyfriend for looking at the waitress at Applebees.  The crime is called “Possession of a Controlled Substance, Not in Original Container.”  Grandma could really use the advice of a Louisville drug charge lawyer.

Sometimes, in this profession, I run across a law that just absolutely burns my toast.  Usually it involves some sort of vague or overbroad language that teeters on unconstitutionality.  For example, my rant of the week concerns KRS 218A.210.  It reads:

218A.210   Controlled substances may be possessed only in original container  -- Penalties.

(1) A person to whom or for whose use any controlled substance has been prescribed, sold, or dispensed, by a practitioner or other person authorized under this chapter, may lawfully possess it only in the container in which it was delivered to him by the person selling or dispensing the same.

(2) Violation of subsection (1) of this section is a Class B misdemeanor for the first offense and a Class A misdemeanor for subsequent offenses.

You might be thinking, “Greg – seriously, what kind of police officer would actually charge my grandmother with this sort of crime?”

You would be surprised.  I have a current client (the client will remain nameless out of respect for confidentiality) who is charged with this offense.  The undisputed facts are: 1) the pills are non-narcotic; 2) my client had a prescription for the pills; and 3) my client had the pills in her purse.

In fact, my client originally had the pills in a prescription container – they just spilled out into her purse.  She cleaned up what she thought was all of the pills, and put them back into the container.  However, a couple of those little slippery bastards remained in the bottom of her purse.  The client didn’t realize this until the officer was rooting through her purse, and found them at the bottom.  The officer arrested her and charged her with Possession of a Controlled Substance, Not in Original Container.

The law is overbroad because it says you may possess a prescription “only in the container in which it was delivered to him[.]”  In the most strict reading of this law, a person who gets a prescription filled can never take the pills out of the container.  Possessing the pill in his/her hand would be possession in a manner that is not “in the container in which it was delivered to him.”  Therefore, by taking prescribed medication, everyone who has ever followed those doctor’s orders, has violated the law.  Absurd, right?

On a related note, I’m about to really annoy a prosecutor when I make my motion to declare this statute Unconstitutional.  I’ll let you know how it goes.

I love this great Commonwealth, but sometimes the Kentucky drug laws can be overbroad.  For that reason, and for many others, drug charges should be handled by experienced drug charge lawyers.  If you have a drug charge in Louisville, Lexington, Elizabethtown, Frankfort, or the surrounding areas, you should speak with an experienced Louisville drug charge lawyer.  Call Gruner & Simms, PLLC at 502.618.4949.  You will not be charged for an initial consultation.   

Results.  As fast as the law will allow.






Questions answered in this blog post:  Is it illegal to put pills in other containers; explain KRS 218A.210; when can I take prescription pills out of the original container; how do I find a good Louisville drug charge lawyer; how can I find a good Louisville lawyer for prescription pills not in original container; what does it mean for a law to be unconstitutional; what is vagueness and overbreadth; are days of the week pill boxes illegal?