What is the Difference Between Dismissal and Expungement in Kentucky?

Today’s blog post is not going to be extremely interesting or chock full of jokes.  Sorry.  It will, however, be informative.  And useful for people who need an expungement in Kentucky.

You can expunge some convictions and most dismissals in Kentucky.  A conviction means that a defendant either pled guilty to an offense, or the defendant was found guilty of the offense by a judge or jury.  There are different rules for expunging convictions and dismissals, and we’ll get to that later.

First, let’s define the terms Dismissal and Expungement. 

“Dismissal” or to have a case “dismissed” means that the criminal case against a defendant  is resolved in their favor, with no conviction.  The case against them is dismissed (usually with a stipulation of probable cause for the arrest if we are talking about an arrestable offense), and the defendant faces no more court dates.  There is no more possibility of punishment or conviction.  They walk away – free to go.

That does NOT mean that the charge “goes away.”  The term “dismissed” is not synonymous with “erased.”  If someone (an employer, police officer, etc.) looks up the defendant’s criminal record, they will still find the charge.  The record will show that the defendant was charged with a crime, but that the charge was dismissed.

If the defendant wants the record to be “clean,” “erased,” or to “go away” then the remedy is “Expungement.”  If the defendant qualifies for an expungement (and to be accurate, if he qualifies, he isn’t technically a “defendant” anymore), there is another step in the legal process that needs to be performed.  THIS IS IMPORTANT.  If the defendant had a lawyer, the lawyer got the case dismissed, and the defendant expects the lawyer to get the case expunged without this desire expressed to the lawyer, it will NOT be expunged.  It is a new step.  A new case.  That means a new legal fee, new paperwork, and most likely, a new court date or two.

If the defendant qualifies for an expungement in Kentucky – the process is quick and easy (in the grand scheme of legal process).  Expungements are typically cheap and usually cost less than $500.00 to get done (per charge).  In addition, they can be done quickly; it only takes about a month to get an expungement done in most cases.   

Let’s go over some brief rules (these are general rules and this is not an exhaustive list) on who/what qualifies for expungement in Kentucky.  First – Felonies cannot be expunged.  Exceptions are that Felony dismissals (including those resulting from diversion programs) may qualify subject to the other rules; first time drug possession cases may qualify; and if the felony has been pardoned, it may qualify.  But generally, if you are a convicted felon – I’m sorry.  The general rule is: “Once a convicted felon, always a convicted felon.”

There is a waiting period for expungement.  During that waiting period, the defendant must have NO new offenses.*  The general rule on the waiting period is that defendants with dismissals have to wait 60 days before an expungement can be filed, but defendants with misdemeanor convictions have to wait 5 years.  Again, during this waiting period, the defendant must have NO new offenses.

The time frames can be modified by agreement.  For example, in Jefferson County, we have a DUI diversion program.  If a defendant is lucky enough to qualify for the DUI diversion program, the DUI charge will be dismissed after completion of that program.  However, defendants have to agree (as a part of the program requirements) that the charge cannot be expunged until 2 years after the dismissal.

If you have a conviction on your record, and you would like to get it expunged, call expungement lawyer Greg Simms at 502.473.6464.  The process is easy, and it doesn’t cost an arm and a leg.  But don’t put it off.  It’s important because it’s YOUR record.  Call today.

Expungement Attorney Greg Simms

455 South 4th Street, Suite 1250, Louisville KY 40202

502.473.6464.

1. *There is a great debate now on what constitutes a "new offense" under the law for expungement purposes.  I will keep you posted on how this turns out. 

Questions answered in this blog post: How can I get an expungement in Kentucky; good expungement lawyers in Louisville; how to do a Louisville expungement; expungment attorney Louisville; expungment lawyer Elizabethtown; what is the difference between a dismissal and an expungement; expungement lawyers in Kentucky; how to get my record erased?

Free in Kentucky: Bardstown Cracker Barrel Kidnapper!

Free in Kentucky: Bardstown Cracker Barrel Kidnapper!: It has long been known that Cracker Barrel is a hotbed of criminal activity.   Over the past week, it seems that the stakes have been ra...

Bardstown Cracker Barrel Kidnapper!

It has long been known that Cracker Barrel is a hotbed of criminal activity.  

Over the past week, it seems that the stakes have been raised concerning your safety at the local Cracker Barrel restaurant.  This marks one of the creepiest occurrences to happen in Bardstown, Kentucky for years.  Normally, Bardstown is just known for being the most beautiful small town in America.

Apparently there's a guy (and a younger accomplice) riding around looking for women to abduct.  The most frightening piece of evidence to come out of this story is that he has a cage in the back of his unmarked, white van.  

So be super careful coming out of the Cracker Barrel until this guy is caught.  Lest you be snagged and thrust into some weird "put the lotion on its skin" scenario.

Let's talk about kidnapping.  Today we'll go over the elements of the offense and the punishment for the crime.  Kidnapping is a serious charge in Kentucky.  In this particular instance, Buffalo Bill is attempting to take a woman and keep her in a cage.  That's not really normal in the sense of how the crime is usually charged.

...or in any sense, I suppose.

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” in order for the perpetrator to have committed kidnapping in Kentucky.

A lot of people believe that the victim has to be taken somewhere else and held captive (Buffalo Bill style) 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 the difference between harming the victim and not harming the victim 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 for the perpetrator.  Class B felonies in Kentucky carry a penalty of 10-20 years.  Class A felonies are the most serious felonies in Kentucky – offenders face a penalty of 20 years to life in prison.

Further, if the victim dies as a result of injuries sustained during the kidnapping, this crime can be prosecuted as a capital offense.  That means that the punishment can be the death penalty.

Now you know all about kidnapping in Kentucky.  And the next time someone brings up the creepy guy who goes to Cracker Barrel in the white van, you can tell them all about how the kidnapping statute in Kentucky makes it a much more serious crime to harm or kill a victim during the course of the kidnapping.

And then your co-workers will want to know why you've been studying kidnapping statutes.  You're welcome.

If you have any more questions about kidnapping, please don't hesitate to ask.  502.618.4949.

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



See below for the Courier Journal story:



http://www.courier-journal.com/article/20130118/NEWS01/301180085/Police-investigating-another-encounter-white-van-linked-possible-abduction-attempts

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 3^rd 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.

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