DUI Field Sobriety Tests: Police Officers Giving You the Finger - Test.

This post concerns Field Sobriety Testing - and specifically, the “eye test” that police officers perform.  If you ever wondered why police officers waive their finger in front of somebody's face to see if they've been drinking, this post should answer that question. 

If you are stopped by a police officer and the officer believes you have been drinking, the officer will most likely ask you to perform Field Sobriety Tests (hereinafter, “FSTs”).  You are probably a little bit familiar with these tests even if you have never been asked to perform them.  Since they have been standardized and consistently used for years, you have probably heard of the Horizontal Gaze Nystagmus (hereinafter “HGN” and commonly referred to as the “eye test”), the One Leg Stand, and the Walk and Turn Tests.  

I first became familiar with FSTs at Eastern Kentucky University.  EKU has a pretty phenomenal police administration program - one of the best in the nation.  They used to (and probably still do) get college students to come in and drink, so they could teach aspiring police officers and new recruits how to perform FSTs.  They would  get some of us a little intoxicated and some of us over the limit, take us around to different stations and let the officers perform tests on us.  The officers would guess whether we were over or under the legal limit, and then they would feed us.  We watched some movies, and then left after we blew .000 on the breathalyzer.  And they paid us $75 for the day.  It was a pretty fantastic way to earn side cash in college.  I actually know a guy who took a date to the alcohol testing.  But that's probably a story for another time.  I don't want to tell you who it was, but if you're ever in the Richmond area and run into a guy named Shane Smith, ask him about it.

Anyway, while performing the tests I became very interested in how they were performed, and the different rules to which the officers had to abide.  There are a lot of details that go into the tests and often, officers forget some of the details.  If that happens, an experienced Louisville DUI lawyer might be able to get the evidence of FSTs suppressed.  That means they wouldn’t be admissible at a jury trial.

The HGN:

The HGN test is an assessment of the involuntary movement of a subject’s eyes.  An officer takes a stimulus, often their index finger, and move the stimulus back and forth in front of the subject’s eyes.  The subject is supposed to stand still, keep their head still, and follow the finger only with their eyes.  As the officer moves the stimulus, they will first check your pupils, then check for equal tracking of the eyes (whether they both move together like they should) and finally, the officer will look for “jumping” or “jerking” of the eyes.  This involuntary movement is nystagmus (or one of the many different kinds of nystagmus).

In actuality, everyone has at least a little bit of nystagmus, all the time.  Nobody’s eyes move in exact smooth pursuit.  Consistently, there are very small involuntary jumps.  Alcohol consumption exaggerates the nystagmus that we all have.  If you have a DUI charge, and the officer wrote “lack of smooth pursuit” on your citation, that’s what the officer was saying.

As the suspect follows the police officer's finger with their eyes, the officer is supposedly able to detect when the nystagmus begins and is supposedly able to estimate the angle from straight ahead at the point where it begins.  If the onset is prior to 45 degrees, in theory, the blood alcohol level will be over .05.  If you have a DUI charge and the officer performed the HGN, the officer probably wrote “onset of nystagmus prior to 45 degrees” on the citation.

The next part of the HGN is to note whether the jerking becomes more "distinct" when the eye is moved to the lateral extreme — that is, when there is no longer any white of the eye visible at “maximum deviation.”

Officers are supposed to administer the test the same way every time and to use an objective scoring method to determine the results of the test.  In reality, few officers understand the test, administer it correctly, or use objective scoring.  A lot of officers simply report that they "detected nystagmus", and subjectively count that as a failure.  However, it is the characteristics of nystagmus, not the simple presence thereof, which is relevant to determining whether someone may be impaired.  As a side note, and unfortunately, many things besides alcohol cause nystagmus and many of us have distinct nystagmus under normal conditions.

The above reasons are why you should NOT perform field sobriety tests.  You do not have any obligation to do so, and you are well within your rights to refuse to take the tests.  In fact, you should not speak to the officer, and you should just hand them my card.  On the back of my card, the officer will find the following message:  

Dear Officer:  I do not waive any of my Constitutional Rights.  I do not consent to any search.  I wish to remain silent.  I will not perform Field Sobriety Tests, and I will not take a PBT.  If you have any questions, call my attorney, Greg Simms, at 502.618.4949.

If an officer asks for your license, registration or proof of insurance, you should hand my card to the officer with the aforementioned documentation.

If you have a DUI charge in Louisville, Lexington, Frankfort, Elizabethtown or the surrounding areas, call 502.618.4949 or visit www.grunersimms.com.  Don’t trust your case to a DUI attorney who only takes DUI cases “every once in a while.”  Get an experienced Louisville DUI lawyer on your side.  Results.  As fast as the law will allow.

Free in Kentucky: Angry About Casey Anthony? This Might Explain Why...

Free in Kentucky: Angry About Casey Anthony? This Might Explain Why...: "This particular post isn’t really directly about, but has been triggered by the Casey Anthony trial. There has been a lot of response, whic..."

Angry About Casey Anthony? This Might Explain Why Some Juries Do What They Do.

This particular post isn’t really directly about, but has been triggered by the Casey Anthony trial.  There has been a lot of response, which has varied, but a lot of it has teetered on wide open furiousness...of...anger...ocity.  People are genuinely mad because Casey Anthony was found Not Guilty of Murder or Manslaughter (or whatever they call the equivalent in Florida.  I’m too tired to look it up right now because it is 9 o friggin clock and I’ve been working all day).  If you are angry about the outcome, hopefully this might make you feel a little better.

I just want to touch on a few things.

1) “You’re only as good as your verdict.”

This is something that lawyers say to each other when they want to talk like hot shots.  It basically means that the public perception of a lawyer’s legal prowess is based purely on whether you win or lose.  It holds a lot of weight.  I’ve already heard people talking wide open about how good the Defense attorneys from the Anthony trial must be phenomenal, and about how the Prosecutors must have “totally screwed the case up.”  

The truth is that lawyers win and lawyers lose.  It happens.  My philosophy is to work extremely hard and be as prepared as possible, and hopefully I’ll win more than most.  It has worked out pretty well so far.  

It might be true that public perception of a lawyer’s worth is substantially based on winning or losing, but it shouldn’t be assumed that a a lawyer’s performance is THE factor that wins cases.  Contrary to what most of us trial lawyers want to believe, we aren't the single deciding factor.  The truth is that there are a whole lot of factors that go into a trial - one important factor that happens to be significant to this post is the background and experiences of each juror.  Which brings me to my next point.

2) “Your jurors are the first 12 people out of Wal-Mart.”

There are a lot of sayings about juries.  I don’t particularly like the derogatory phrases about juries like, “the jury is made up of 12 people who aren’t smart enough to get out of jury duty.”  These sayings don’t take into account the fact that a lot of people actually give a damn about doing their civic duty and/or being a huge part of our judicial system.    Personally, I think serving on a jury is the second most important civic duty a person in America can perform - second to serving in the armed forces.  The “Wal-Mart” saying I don’t mind, because pretty much everybody goes to Wal-Mart.  I’ve seen people from all walks of life there, and the first 12 people out of Wal-Mart could very well be on your jury.  If the person uttering it means that your jury will be made up of a random cross section of the community, they are absolutely right.

Regardless, you have to understand that when jurors come into a trial they all have different experiences and opinions.  What one thinks is “reasonable” may not be what another person believes is also reasonable.

Which brings me to my next point.

 3) Beyond a reasonable doubt.

There are a lot of different burdens of proof or standards of evidentiary proof that have to be presented in legal settings.  Feel free to sit down in a little orange plastic chair while I blather on about them and write on a chalk board.

Scintilla (pronounced SIN-tila) of Evidence - this means any little speck of evidence.  Anything at all that might tend to prove any fact would be considered a scintilla of evidence.

Reasonable Suspicion - This is what officers need to pull you over in your car or effectuate a “Terry Stop” (named after the case which established the standard of proof).

Probable Cause - This is the level of evidence that is required for an officer to arrest you.  This is not really that high of a burden, but is higher than reasonable suspicion.

Preponderance of the Evidence - This is the standard for winning a civil jury trial.  If the Plaintiff in the case proves from the evidence at trial that it is even the slightest bit more probable that their side is correct, they win.  If they can’t, the defendant wins.  The Plaintiff has the “burden of proof” which means that it is their duty to produce the evidence in front of the jury, and if they cannot, they lose.

Clear and Convincing Evidence - This is pretty self explanatory.  It is a higher burden than a preponderance, and the evidence must be clear and convincing in order for the party with the burden of proof to prevail.

Beyond a Reasonable Doubt - BARD is the highest standard of evidence that exists.  It is a great burden.  It means that if a juror thinks that someone is probably guilty, but they are not sure, and they have any doubt which they consider reasonable, they must vote to find the Defendant Not Guilty.  If they think someone is most likely guilty and they are almost completely positive, but there is one single solitary fact that causes a doubt, and they think it is a reasonable doubt, they MUST find the Defendant Not Guilty.  It is huge.  It is a huge burden for the prosecution.

The reason we have this massive burden for the prosecution is that, as a country, we tend to give a damn about freedom.  We think it’s pretty awesome that liberty is valued, and that some of our citizens are willing to go to some God forsaken desert and get shot at to protect it.  So we stack the odds against the house because it is better to allow 10 guilty people to walk free than it is to allow 1 innocent person to be imprisoned.*

As attorneys, we are not even allowed to explain what “reasonable doubt”  is to juries.  The reason for this is, as explained supra**, everyone has different opinions and what may be reasonable for some may not be reasonable for others.

Which does NOT bring me to my next point, but again, it’s late.  So I don’t care.

 4) A jury doesn’t get to hear everything.

Everyone else was privy to the media coverage, for better or worse, concerning the Casey Anthony trial.  The jury was not.  So they didn’t hear everything that we did.  There are very good reasons for this.  Without insulting any member of the press, I have had several experiences where I gave statements to the press and they totally screwed it up.  They aren’t perfect and they don’t report...perfect...ly.  Also, I hope this doesn’t shock anyone, but the media is SELLING something.  They sell time and space.  Advertisers buy that time and space.  That is how the media stays alive.  Sex sells and violence sells but explaining both sides of a story and trying to remain unbiased does NOT sell.

In order to peddle their wares, the media can tend to exaggerate and sensationalize to sell time and space to advertisers.  They start with some facts and then they throw some sparkle and glitter on it.  So it is a good thing that juries don’t get to hear all of that.  They are supposed to decide a case based on facts.  Not sparkle.  Nor glitter. 

Also, evidentiary rules keep certain bits of evidence out that you might get to hear from the media.  Again, there are very good reasons for that.  But again, it's late.  And I have droned on for long enough.  Even Greg Simms gets tired of listening to Greg Simms after a while.

Conclusion-

Looking back, I don’t know if this will make you feel better or not.  Maybe it has less to do with Casey Anthony and more to do with my rants and/or the fact that it is now 9:46pm.  Either way, I hope you got something out of it.

Murder is a very serious crime.  If you have been charged with Murder, you are facing 20 years to life in prison - or in some cases, the death penalty.  Do not trust your case to a lawyer who has never tried a homicide case.  Call an experienced Louisville Murder attorney at Gruner & Simms, PLLC.  You can contact us at 502.618.4949 or visit www.grunersimms.com.  Results.  As fast as the law will allow.

*Don’t blame me.  Freedom rules.

**Fancy Lawyer Talk

Houdini Teenager Escapes from Louisville Hall of Justice Holding Cell

http://www.courier-journal.com/article/20110621/NEWS01/306210074/Teen-escapes-through-ceiling-Hall-Justice-holding-cell?odyssey=mod_sectionstories

Feel free to click on the above link for the whole story - I feel compelled to write a blog post on the issue because I just find it hilarious.  But there's nothing I can say that lends much to the above story.  Click above and enjoy.

Here are a couple of other issues concerning escape:

Question 1) Is it considered escape if I am under arrest and I kick the back window out of a police car?

You wouldn't believe how often that happens.  Let's call our subject "Bob."  Bob is possibly intoxicated and would rather not be arrested.  In fact, he is downright anti-being arrested.  So when Bob is confined to the back seat of a cruiser, he tries to cause as much ruckus as possible.  For some people, that means kicking out a window.  When it does, police tend to charge a person with escape, even if the only thing that leaves the cruiser is Bob's recently bloodied foot/ankle.

If a police officer charges Bob with Escape in the first degree, he is over-charged.  Escape in the first requires "the use of force or threat of force against another person."  If the reason Bob is in the cruiser is because he has been charged with a felony, it could be Escape in the second degree, which is a Class D felony.  If Bob was only arrested for a misdemeanor, such as DUI, first offense, then Bob hasn't committed a felony by "escaping."  This could possibly be Escape in the third degree, which is a Class B misdemeanor.

All of this, of course, depends on the definition of the word "escape" which is conveniently located in KRS 520.010(5). "Escape" means departure from custody or the detention facility in which a person is held or detained when the departure is unpermitted, or failure to return to custody or detention following a temporary leave granted for a specific purpose or for a limited period[.]"

I think most people would agree that if Bob is in the back of a cruiser, handcuffed, with his bloody foot hanging out of a newly broken cruiser window, that Bob has not actually made a "departure" from his custody.  In fact, he is still very much in custody.  However, Bob might still have committed felony Criminal Mischief (police cruiser windows are VERY expensive, apparently).

So, no.  Even though you will be charged with a slew of crimes, kicking out a cruiser window is probably not actually "escape."

Question 2:  Is it considered escape if I go somewhere else during work release from jail?

Yes.  It is most likely a "departure from custody" if you have been granted work release, but instead of work, you go to Wal-Mart.  Or, if you actually go to work, but you take a long lunch break to have a "date" with your girlfriend.  Nothing will get your work release terminated, and add charges to your record, like getting a girl preggers while you're supposed to be laying brick.

Escape is a serious charge, and can often be a felony.  If you have a Louisville Escape charge, or if you are charged with Escape in Lexington, Frankfort, Elizabethtown, or the surrounding areas, call 502.618.4949.  Get an experienced criminal defense lawyer from Gruner & Simms, PLLC on your side.  Results.  As fast as the law will allow.

The Age of Consent in Kentucky: Card Her.

No, seriously - CARD HER.

How young is too young?  The ages for Kentucky sex crime laws can be complicated.  The years 12, 14, 16, 18, and 21 are all significant in the Kentucky Revised Statutes for sex crimes.  And sometimes it matters whether the actor is more than 5 years older than the victim.  Sometimes the difference in their ages doesn’t matter at all.  Even for the most experienced sex crime lawyers, it can be difficult to keep everything straight.

Often, people use the term “statutory rape” when they talk about Kentucky sex crimes.  However, there are only a couple of instances where age can determine that sexual activity is “rape.”  It might be rape in the second degree (a Class C felony), if, “being eighteen (18) years old or more, he engages in sexual intercourse with another person less than fourteen (14) years old[.]”  If the perpetrator is older than 21, and the victim is under 16; or if the perpetrator is over 21 and they have sex with a foster child under 18; or if the perpetrator is in a position of trust or authority (being any age), and the victim is under 16; it could be rape in the third degree (a Class D felony).  Ok, maybe there are more than just a “couple” of instances where age can determine that sexual activity is “rape.”  My bad.

See what I mean about it being difficult to keep all of this straight?  Let’s move to something a little more simple.

On to the age of consent.  It is illegal to engage in sexual activity with anyone who is incapable of consent, and there are a few reasons why a person may not be capable of consenting.  Pursuant to KRS 510.020(3)(a), one of those situations is if said person is under 16 years old.  So, on a person’s 16th birthday, it might be possible for them to consent to sexual behavior.  That does NOT mean that you can go out and have sexual contact with a 16 year old and no crime has been committed.  There are a slew of other crimes that might be committed.

If a person is under the age of 18 you may still have age-related sex crime problems.  Convincing or coercing someone under 18 into sexual activity can still be a serious problem.  For example, if you induce, assist, or cause anyone under the age of 18 to participate in any illegal sexual activity, you could be guilty of Unlawful Transaction with a Minor in the first degree, which is a Class C felony.  So don’t touch her if she can’t buy her own cigarettes.  

The answer is:  16 is the age of consent, but under 18 can still be a serious problem.

Sex crimes can be extremely serious.  Get an experienced lawyer on your side.  If you are charged with a sex crime in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, call a Louisville sex crimes lawyer at 502.473.6464.  Get a free consultation with Attorney Greg Simms.  

Questions answered in this blog post:  How old is the age of consent in Kentucky; how old can a girl be for statutory rape; what is unlawful transaction with a minor; what is statutory rape; How can I find a good Louisville sex crime lawyer; what is the age of consent; Elizabethtown rape lawyer; sex abuse lawyers in Louisville?

Can I get a DUI while pushing my own wheelchair?

I’ve had some more questions about what sort circumstances can lend themselves to DUIs. 

I never know exactly what someone is asking me when they ask a question like, “Can I get a DUI while riding a horse?”  One person asking that question can mean something completely different than another.  Some people intend to ask, “Will a police officer arrest me for riding a horse while under the influence?” and other people intend to ask, “Is it against the law to ride a horse while under the influence.”  And I know those questions seem very similar.  Some people are rolling their eyes at me right now, thinking “He’s going off on some BS legalese tangent.  Don’t try to ‘lawyer’ me, Greg.  Just tell me the answer.”  But the two questions really can be worlds apart.

We have three questions for today's conversation.  1) Can I get a DUI while riding a bicycle?  2) Can I get a DUI while riding a horse?  and 3) Can I get a DUI while propelling my own wheelchair?  All three are going to depend on the definition of "vehicle" under the Kentucky Revised Statutes, so let’s start with the definition of “vehicle” and “motor vehicle” which appear in KRS 189.010 (19), subsections (a) and (b), respectively.  The definitions are kind of broad.  Here they are:

(19) (a) "Vehicle" includes:

1. All agencies for the transportation of persons or property over or upon the public highways of the Commonwealth; and

2. All vehicles passing over or upon the highways.

(b) "Motor vehicle" includes all vehicles, as defined in paragraph (a) of this subsection except:

1. Road rollers;

2. Road graders;

3. Farm tractors;

4. Vehicles on which power shovels are mounted;

5. Construction equipment customarily used only on the site of construction and which is not practical for the transportation of persons or property upon the highways;

6. Vehicles that travel exclusively upon rails;

7. Vehicles propelled by electric power obtained from overhead wires while being operated within any municipality or where the vehicles do not travel more than five (5) miles beyond the city limits of any

municipality; and

8. Vehicles propelled by muscular power

I gotta tell you the truth – I don’t like how our legislators have written these definitions.  They could be a little more clear as to what a “vehicle” is in the first place, before trying to weed out the difference between motor vehicles and vehicles.  But honestly, it doesn’t matter that much for the purpose of today’s conversation, because you can be found guilty of DUI if you are operating ANY vehicle ANYWHERE in the state, while under the influence of alcohol or other intoxicants, pursuant to KRS 189.520.  The answers to today's questions depend on whether something constitutes a “vehicle.”

We will tackle bicycles first, because they are the easiest.  

Can I get a DUI for riding a bicycle while intoxicated?

Yes.  A police officer will most likely arrest you, and you can certainly be found guilty of DUI for riding a bike while intoxicated.  A bicycle is an agency for the transportation of people on the public highways of this great Commonwealth of Kentucky.  Bikes are for people to ride, and it is reasonable to assume they are to be ridden on roads (amongst other places).  So, yes.  Bikes count.  If you still have any questions concerning the same, please consult Thomas v. Dahl, 170 S.W.2d 337 (Ky. App. 1943).

Like Jigga, we are on to the next one.  

Can I get a DUI for riding a horse while intoxicated?

This is where it gets important to separate the question into two questions.  First, we will answer the question of “Will a police officer arrest me for riding a horse while under the influence?” and the answer is yes.  Cops will arrest you if you are drunk on a horse.  Just ask Millard Greg Dwyer, who was arrested in Somerset for the same.  An off duty Kentucky State Trooper said that Mr. Dwyer nearly fell off the animal, so he was arrested and charged with DUI. 

As for the question, “Is it against the law to ride a horse while under the influence.”  That question depends on whether a Court would consider a horse to be an agency for the transportation of people on the public highways of Kentucky.  The answer is that most courts would find that, even though the subject is a source of debate amongst legal nerds such as myself and the people who write the Law Reader.  See http://news.lawreader.com/?p=784.  As you can tell by clicking on that link, the people at the Law Reader have a clear cut opinion that “It is not a DUI offense to ride a horse while intoxicated!”  I disagree with them, and my advice to you is:  Stay off the horse when you are drunk.  I bet Millard Greg Dwyer would also tell you that you can, indeed, get into some trouble for being drunk on a horse.

Lastly, the most complicated question of the day is “Can I get a DUI for propelling my own wheelchair while intoxicated?”

I sure hope not.  If the Americans with Disabilities Act means anything at all, at the very least, it must mean that our government and police should make efforts to make sure disabled Americans get the same rights and freedoms as everyone else.  And everyone else has the right to get stinkin’ drunk on their own property, crow like a rooster, and wake up with a headache.  The fact that someone is confined to a wheelchair shouldn’t mean that they can never be intoxicated without the fear of DUI charges (remember, as per previous blog posts, that you CAN get a DUI on your own property in Kentucky).  The Marion County in me wants to say "That just ain't right."  My legalese response is, "It is contrary to our basic principles of liberty and equality."

If the question is, "Will a police officer arrest me for propelling my own wheelchair while intoxicated?"  The answer is, "I hope not.  But I just don't know."

The next question, is "Is it against the law to push my own wheelchair while under the influence.”  In order to find out if you would actually be guilty of DUI, again, the definition of "vehicle" will be pretty important to this conversation.  However, in this case, the definition actually helps us out.  In order for you to be guilty of DUI by propelling your own wheelchair while under the influence, your wheelchair would have to be considered a “vehicle.”  And I think we would have a pretty decent argument that a wheelchair is not meant to be an agency for the transportation of people on the public highways of this great Commonwealth of Kentucky, any more than my own legs are.  Bikes are meant for getting you down a road.  Horses might be meant for getting you down a road.  But wheelchairs aren’t meant for the road, just as people who have use of their legs aren’t supposed to walk down the road like crazy people.  We’re supposed to use the sidewalk and alleys.  Only when we have an appropriate “agency” are we supposed to actually travel the roadways.  And a wheelchair is not an appropriate agency for road travel.

That being said, if you are in public, a disabled person can certainly get arrested or cited for Alcohol Intoxication in a Public Place, just like everyone else.  So be careful with the booze, regardless. 

DUI is a serious charge.  You should trust your case to a Louisville DUI lawyer who regularly practices DUI law.  Call the experienced Louisville DUI lawyers at Gruner & Simms, PLLC for a free initial consultation.  The number is 502.618.4949, or you can visit www.grunersimms.com

Results.  As fast as the law will allow.

As of Wednesday, You Cannot be Arrested for (only) Smoking Marijuana in Public.

Want to watch the law change?  You can physically see the big changes happening to Kentucky law, right before your eyes.

Many of the changes (brought to you by the letters HB and the numbers 463) to the Kentucky Revised Statutes are taking place this week.  Significant parts of House Bill 463 are solidifying as law on June 8, 2011 (which is this Wednesday).  And if you go to the KRS online, you can physically watch the changes taking place.  

For example, http://www.lrc.ky.gov/KRS/218A00/1422.PDF. 

If you click on the above link, you will see both the old and the new law posted under KRS 218A.1422, the Possession of Marijuana statute.  This double entry of the law evidences the change in Kentucky law - where the possession of marijuana has previously been a Class A misdemeanor, but as of June 8, 2011, it will be a Class B misdemeanor with a 45 day jail cap.  Any Louisville drug charge lawyer will tell you that this is significant de-criminalization, because a Class A misdemeanor carries up to twelve (12) months in jail.  In short, as of June 8, 2011, the maximum penalty for marijuana possession will be about 12% of what it previously has been.  Big change.

I’m not sure why, but some of the KRS changes are already posted without the previous laws.  For example, KRS 218A.1411, which governs Trafficking in Controlled Substance in or Near School, already has the changed law posted.  HB 463 has reduced the geographic scope of what will be considered “near” a school from 1000 yards to 1000 feet.  The statute has the “effective date” listed as June 8, 2011.  So technically, the current law is not posted on the KRS website.  This makes for a really sticky situation for everyone who gets arrested from now until Wednesday for Trafficking Near a School.  I believe that anyone who engages in trafficking within 1000 yards of a school between now and June 8, 2011 would have a very solid argument that the law posted by our great Commonwealth is the law that governs their actions.  Hopefully my clients will never have to find out whether I’m right.

The most significant change, I believe, is the change to KRS 431.015.  This statute previously granted the discretion to police officers to decide whether to arrest someone for a misdemeanor offense, or to give them a citation.  The change is simply massive.  It takes a good deal of discretion away from the officer, and requires that they just write a citation for a lot of non-violent, less dangerous misdemeanors.  For example, a person smoking marijuana in public cannot be arrested in Kentucky as of June 8, 2011.  The police will have to issue them a citation, just like they would for a speeding ticket.  Let’s take a look at the specific language of the KRS, because it is pretty important.  I am not going to post the entire Section, because the change we are talking about really just occurs in Subsection (1).  Pay attention to how the language “may issue” changes from the old statute to the new.

Here is the old law:

431.015   Citation for misdemeanor -- Failure to appear.

(1) A peace officer may issue a citation instead of making an arrest for a misdemeanor  committed in his presence, if there are reasonable grounds to believe that the person being cited will appear to answer the charge. The citation shall provide that the defendant shall appear within a designated time.

Here is the new law:

431.015   Citation for misdemeanor -- Arrest for certain misdemeanors -- Failure to appear.

(1) (a) KRS 431.005 to the contrary notwithstanding, and except as provided in paragraphs (b) and (c) of this subsection, a peace officer shall issue a citation instead of making an arrest for a misdemeanor committed in his or her presence, if there are reasonable grounds to believe that the person being cited will appear to answer the charge. The citation shall provide that the defendant

shall appear within a designated time.

(b) A peace officer may make an arrest instead of issuing a citation for a misdemeanor committed in his or her presence if the misdemeanor is:

1. A violation of KRS Chapter 508, 510, or 527, or KRS 189A.010;

2. An offense in which the defendant poses a risk of danger to himself, herself, or another person; or

3. An offense in which the defendant refuses to follow the peace officer's reasonable instructions.

(c) A peace officer shall make an arrest for violations of protective orders issued pursuant to KRS 403.715 to 403.785.

As a qualifier to the previous statement about how “as of June 8, 2011 a person in Kentucky cannot be arrested for smoking marijuana in public” please note that if any of the conditions present in subsections (b) or (c) are present, someone can be arrested.  Consider the following scenario:

Police Officer:  Excuse me, ma'am.  Are you smoking a marijuana cigarette?

Ma'am:  Yup.

Police Officer:  Would you kindly extinguish that marijuana cigarette?

Ma'am:  Nope.

Police Officer:  Well then, you are under arrest. (Police Officer handcuffs Ma'am and thrusts her into the back of a police cruiser) (End Scene)

The preceding dialogue is an example of how one might get arrested based on subsection (b)(3).  I knew that theatre degree would really come in handy one day.  Obviously, refusing to cease illegal activity would constitute a refusal to follow a peace officer’s reasonable instructions. 

Please keep in mind that I expressly advise against smoking marijuana in public.  It’s a really good way to establish probable cause to get you searched.  Further, if a police officer sees you sharing a joint with a friend or fellow Phish concert attendee, you can both be charged with trafficking in marijuana.  The simple act of “transferring” marijuana constitutes trafficking under KRS 218A.010, subsection (42).  And as of right now, if it is your second or subsequent offense, passing that joint can be a felony under KRS 218A.1421.

Also, for all of my marijuana reform readers – I’ve had more than a couple of people talk about how they think it would be a great idea to organize some sort of “smoking in public” day, where a bunch of people would meet up and light up in public because the law is changing.  There are a lot of perils of “trafficking” that would come along with that circus, as mentioned above.  However, I do NOT believe that organizing such an event would constitute “engaging in organized crime (as one person has expressed concern about the same), because it doesn’t rise to the level of the statute.  Here is the applicable subsection of KRS 506.120 –

"criminal syndicate" means five (5) or more persons, or, in cases of merchandise theft from a retail store for the purpose of reselling the stolen merchandise, two (2) or more persons, collaborating to promote or engage in any of the following on a continuing basis:

(a) Extortion or coercion in violation of KRS 514.080 or 521.020;

(b) Engaging in, promoting, or permitting prostitution or human trafficking in violation of KRS Chapter 529;

(c) Any theft offense as defined in KRS Chapter 514;

(d) Any gambling offense as defined in KRS 411.090, KRS Chapter 528, or Section 226 of the Constitution;

(e) Illegal trafficking in controlled substances as prohibited by KRS Chapter 218A, in intoxicating or spirituous liquor as defined in KRS Chapters 242 or 244, or in destructive devices or booby traps as defined in KRS Chapter 237;

or

(f) Lending at usurious interest, and enforcing repayment by illegal means in violation of KRS Chapter 360

The definition of “criminal syndicate” does not include smoking marijuana, or the organization of a marijuana related rally.  Again, none of this should be construed as advice advocating marijuana use.  Those funny little plants are certainly still illegal.

Criminal charges are serious.  If you have been charged with a drug offense in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, please visit www.louisvillefirm.com.  Or you can call experienced Louisville drug charge lawyer Greg Simms at 502.473.6464.  The initial consultation is free.

Results.  As fast as the law will allow.

Questions answered in this blog post:  What are the changes in HB 463, How many feet is trafficking near a school, can a police officer arrest me for smoking marijuana in public, in Kentucky, how much weed can be a felony, Louisville drug charge lawyer; Elizabethtown drug lawyer; Elizabethtown attorney for drug possession; is a marijuana rally “organized crime”, is possession of marijuana a misdemeanor or felony.