Free in Kentucky: Dogfighting in Kentucky is Illegal.

Dogfighting in Kentucky is Illegal.

There’s an ASPCA “Action Alert” that is up on their website that at least implies that having dogs for the purpose of fighting, in Kentucky, is not illegal.

It is. 

For some reason, Kentucky seems to distinguish between 1) owning a dog and training it to fight; and 2) owning a dog that you actually enter into a fight, or organizing a dog fight.

The first situation is a violation of KRS 525.130b, and the language of that statute is as follows:

525.130b Cruelty to animals in the second degree -- Exemptions.

(1) A person is guilty of cruelty to animals in the second degree when except as authorized by law he intentionally or wantonly:

(a) Subjects any animal to or causes cruel or injurious mistreatment through abandonment, participates other than as provided in KRS 525.125 in causing it to fight for pleasure or profit (including, but not limited to being a spectator or vendor at an event where a four (4) legged animal is caused to fight for pleasure or profit), mutilation, beating, torturing any animal other than a dog or cat, tormenting, failing to provide adequate food, drink, space, or health care, or by any other means;

(b) Subjects any animal in his custody to cruel neglect…

(3) Activities of animals engaged in hunting, field trials, dog training other than training a dog to fight for pleasure or profit, and other activities authorized either by a hunting license or by the Department of Fish and Wildlife shall not constitute a violation of this section.

(4) Cruelty to animals in the second degree is a Class A misdemeanor.

The language of the statute in (1)(a) is a little choppy, but it does, in fact, outlaw the owning and training of dogs for the purpose of fighting, in the Bluegrass State.  It is clarified a bit by subsection (3) which states that training a dog for reasons OTHER than training a dog to fight for pleasure or profit is not illegal.  Nothing clarifies some ambiguous language like a double negative.

If you own a dog and actually use it for fighting (as opposed to just training it to fight), you would be prosecuted under the Cruelty to Animals in the First Degree statute - which reads as follows:

525.125b Cruelty to animals in the first degree.

(1) The following persons are guilty of cruelty to animals in the first degree whenever a four-legged animal is caused to fight for pleasure or profit:

(a) The owner of the animal;

(b) The owner of the property on which the fight is conducted if the owner knows of the fight;

(c) Anyone who participates in the organization of the fight.

(2) Activities of animals engaged in hunting, field trials, dog training, and other activities authorized either by a hunting license or by the Department of Fish and Wildlife shall not constitute a violation of this section.

(3) Cruelty to animals in the first degree is a Class D felony.

Long story short, dogfighting is illegal in Kentucky and the ASPCA has reckless disregard for the truth.  I don't know why they put out such information.  Maybe it's to spur an emotional response to get people to vote for a stricter law.  Either way it's incompetence or intentionally misleading the public.  Both of which can lead to serious backlash on the ASPCA.  

Thanks and have a great day.

Dogfighting in Kentucky is Illegal.

Dogfighting in Kentucky is Illegal.

There’s an ASPCA “Action Alert” that is up on their website that at least implies that having dogs for the purpose of fighting, in Kentucky, is not illegal.

It is.

For some reason, Kentucky seems to distinguish between 1) owning a dog and training it to fight; and 2) owning a dog that you actually enter into a fight, or organizing a dog fight.

The first situation is a violation of KRS 525.130b, and the language of that statute is as follows:

525.130b Cruelty to animals in the second degree -- Exemptions.

(1) A person is guilty of cruelty to animals in the second degree when except as authorized by law he intentionally or wantonly:

(a) Subjects any animal to or causes cruel or injurious mistreatment through abandonment, participates other than as provided in KRS 525.125 in causing it to fight for pleasure or profit (including, but not limited to being a spectator or vendor at an event where a four (4) legged animal is caused to fight for pleasure or profit), mutilation, beating, torturing any animal other than a dog or cat, tormenting, failing to provide adequate food, drink, space, or health care, or by any other means;

(b) Subjects any animal in his custody to cruel neglect…

(3) Activities of animals engaged in hunting, field trials, dog training other than training a dog to fight for pleasure or profit, and other activities authorized either by a hunting license or by the Department of Fish and Wildlife shall not constitute a violation of this section.

(4) Cruelty to animals in the second degree is a Class A misdemeanor.

The language of the statute in (1)(a) is a little choppy, but it does, in fact, outlaw the owning and training of dogs for the purpose of fighting, in the Bluegrass State.  It is clarified a bit by subsection (3) which states that training a dog for reasons OTHER than training a dog to fight for pleasure or profit is not illegal.  Nothing clarifies some ambiguous language like a double negative.

If you own a dog and actually use it for fighting (as opposed to just training it to fight), you would be prosecuted under the Cruelty to Animals in the First Degree statute - which reads as follows:

525.125b Cruelty to animals in the first degree.

(1) The following persons are guilty of cruelty to animals in the first degree whenever a four-legged animal is caused to fight for pleasure or profit:

(a) The owner of the animal;

(b) The owner of the property on which the fight is conducted if the owner knows of the fight;

(c) Anyone who participates in the organization of the fight.

(2) Activities of animals engaged in hunting, field trials, dog training, and other activities authorized either by a hunting license or by the Department of Fish and Wildlife shall not constitute a violation of this section.

(3) Cruelty to animals in the first degree is a Class D felony.

Long story short, dogfighting is illegal in Kentucky and the ASPCA has reckless disregard for the truth.  I don't know why they put out such information.  Maybe it's to spur an emotional response to get people to vote for a stricter law.  Either way it's incompetence or intentionally misleading the public.  Both of which can lead to serious backlash on the ASPCA.  

Thanks and have a great day.

How To Defend an "Undefendable" DUI

        Let’s say you get a DUI, and things look pretty bad.  You’ve been arrested and you had an arraignment where the judge entered a plea of Not Guilty and told you to come back with a lawyer.  Your first question(s) may be “Do I really need a lawyer or would I just be wasting time/money - I think I’m guilty so why not just plead guilty?”

            After all, you may have a BAC over the “legal limit” and you might feel like fighting the case is futile.  Why not just cash it in like Seinfeld before things take a downward slump?  End it before it ends you, right?  Is it better to burn out or to fade away?  Elvis Presley, for example – had it; lost it.  Ended up doing shows in Vegas way past his prime and eating fried peanut butter and downer sandwiches.  Nobody wants to be old, fat Elvis.

            The big question is to know when to quit and when to go on. 

           A lot of people feel that if you have a DUI over a .08, you should throw in the towel.  That isn't necessarily true.  There may be a way to fight that "undefendable" DUI.

            The good news is – when it comes to DUI – you should get a free consultation with a lawyer.  That way you can find out if paying any money will be worth the fight.  Whether to cash those chips in or go and fight.  Any Louisville DUI lawyer worth a damn will at least give you a free consultation and tell you how they plan on fighting your case.

            Sometimes I tell clients I am sorry but the best I can do is get the best deal possible.

            But most of the times I find something. Even DUIs that start out looking problematic (with an “over the limit” BAC) usually have some shining beacon of defensible hope.  Today we’re going to talk about some of the ways a good Louisville DUI lawyer can fight a difficult DUI case.

1.  No bad driving.

            Even if your BAC is over the limit, most juries want to hear about bad driving in order to believe Beyond a Reasonable Doubt that someone is guilty of DUI.  They want to hear about swerving, crossing the line, causing an accident, going the wrong way down a one way street – just to name a few examples.  Better yet, a jury wants to SEE that stuff on a police officer’s in car video system.

            The good news for you: Most police officers in Kentucky don’t have in car video.  Louisville Metro Police officers usually do – but even LMPD officers sometimes don’t turn the video on (for VHS systems) or the system may be down.  Typically, police officers in other Kentucky jurisdictions do not have video systems – including the Kentucky State Police.

            Even if your officer has video of the stop, there still may be no evidence of bad driving.  Some DUIs come from non-traditional DUI stops.  For example, the officer may have pulled you over for expired tags, speeding a little over the limit, or for dark tint.  These violations are not evidence of intoxication because sober people are frequently stopped for the same. 

            The best case scenario for a DUI stop, from a defense standpoint, would be a roadblock stop.  In this situation, you may have been exhibiting no conduct whatsoever that would evidence of a violation – and the roadblock can be challenged if the police didn’t do everything properly.

            If a jury hears about one of these type of stops, they are missing a piece of the DUI puzzle: “Bad,” or intoxicated driving is a key component of a Guilty verdict.  Without bad driving, we may be able to prove reasonable doubt.  And you may go free.

2.  Borderline BAC.

         Even if you are “over the limit” you still may have a defendable DUI.  In order to win a per se prosecution for DUI, the Commonwealth would have to prove that at the time you operated a vehicle you had a BAC of over a .08.  The problem that prosecutors have, is that the BAC wasn’t taken until sometime AFTER you drove the car. 

            Before an officer takes your BAC at the station (this is the BAC result that is admissible in court) they have to watch you for 20 minutes.  It is likely that the ride in the police cruiser took several minutes (from the point of your arrest back to the police station).  So, it isn’t unreasonable to have a 30 minute difference between the time you were operating the vehicle and the time you took the BAC.  If your BAC was only a little over the limit, who’s to say that your BAC didn’t raise within that 30 minute time frame???  You could have been under the limit while driving and over the limit a half hour later.  That makes you Not Guilty of DUI.

3. A constitutional issue on the stop.

            Police officers can’t just pull you over because they want to.  They have to have a reason.  Specifically, they need what we call “Reasonable, Articulable Suspicion of Criminal Activity” to stop you.  If you were speeding, and the police stopped you for speeding, we need to know the last time the radar equipment was certified.  If the equipment is unreliable, we may need to fight the stop.

           If you were stopped for “swerving” it’s important (especially in Louisville) to check and see if the officer had an in-car video system.  The camera may not match the officer’s memory or testimony.  Without evidence of swerving, we may win a motion to Suppress evidence from the stop. 

            That’s the beauty of finding a Constitutional violation in the stop.  If we can convince the judge that the stop was improper, we can get all of the evidence from the stop Suppressed.  That means the prosecution wouldn’t be able to use any of the evidence they got from that Constitutional violation.  Including your BAC.  Without that, we may have a slam dunk Not Guilty verdict coming.

        In short, these are just a few ways we can fight “undefendable” DUIs.  If you are charged with a DUI in Louisville, Elizabethtown, Lexington, Frankfort, or the surrounding areas – call Greg Simms at Murphy & Powell, PLC.  The number is 502.618.4949 and you will receive a free consultation about your case.  Maybe you need a lawyer.  Maybe you don’t.  Let’s find out.

Free in Kentucky: Legalized Marijuana

Free in Kentucky: Legalized Marijuana: This post might seem 3 weeks late – but I promise, there’s a reason for it.  We’ll talk about the timing relevance later. On January 1,...

Legalized Marijuana

This post might seem 3 weeks late – but I promise, there’s a reason for it.  We’ll talk about the timing relevance later.

On January 1, 2014, the weed fairy (with the help of state legislature) brought Colorado the gift of legal pot.  The streets were alive with the patchouli smelling masses – thrilled to spend 2 or 3 times the street market value for legalized marijuana.  There were literally thousands of people in line at numerous dispensaries. 

Local black market drug dealers were on suicide watch.

You know how every year we hear about black Friday shoppers fighting, trampling, or even killing other people in the shopping frenzy?  That didn’t happen in Colorado.  As reported by the Denver Post:  Denver City Councilman Charlie Brown said he was "pleasantly surprised" by the large, mellow crowd he encountered during a visit to Medicine Man dispensary in Denver, where lines wrapped around the building and into a parking lot.

"It's kind of a relief, frankly," he said. "This could have gone a lot of different ways. So far, so good."

"What I love about it," Denver Councilman Albus Brooks said, "is the peacefulness of the crowd ... and the diversity."

No shit.  Government officials were stunned and relieved that stoners were calm and pleasant.  Shock and Awe.

In other news, the President made headlines this past week (now we’re getting to the relevance on the timing of this post) saying that marijuana was a “bad idea, waste of time and not very healthy” but “less dangerous than alcohol.”  And then some people got angry because they genuinely didn’t know that.  REALLY?

If you don’t know anything about marijuana, stop entering the debate on whether it should be legalized.

Ask any police officer* and they will tell you exactly what President Obama said.  Marijuana is less dangerous than alcohol.  How are there still people who don’t accept that statement as fact?  Are there really still people who don’t understand that nobody has ever died from a marijuana overdose – meanwhile, the CDC estimates that about 88,000 people per year die of excessive alcohol consumption? 

While you’re talking to that police officer, ask the officer how many domestic violence runs they’ve been on that started with marijuana consumption and how many involve alcohol abuse.  I bet they tell you that 9 times out of 10 the subject was hammered drunk and that last 1 time, he was just an asshole.  But 0 times out of 10 are because someone smoked a joint.

Ok I’m done ranting about the “danger” factor.

Let’s get back to Colorado and a little closer back to the subject of today.

Over 20%!!!!!!!!!!!!!!!!!!!  TWENTY.  That’s the sales tax on marijuana in states that have legalized.

At the ceremonial first purchase in Colorado on January 1, the first customer was 32-year-old Sean Azzariti, an Iraq war veteran who campaigned for marijuana legalization and said he uses cannabis to alleviate symptoms of post-traumatic stress disorder. Under a canopy of cameras, Azzariti bought an eighth of an ounce of the marijuana strain Bubba Kush and a package of marijuana-infused candy truffles.

"We did it!" a beaming Azzariti said at the end of the purchase.

The cost was $59.74, including $10.46 in tax. At the bottom of the receipt was the message "Thank you for your purchase!"

What you should take away from the Sean Aszzariti story is that his receipt evidences OVER TEN DOLLARS in tax on a $49.00 purchase.  These hippies (I mean, suffering Iraqi war veterans) are beaming and standing in line to pay over 20% in sales tax on marijuana.  Maybe that’s how, in only 3 short weeks, the tax revenue on marijuana in Colorado is already enough to pay all of the yearly salaries for the governor and his staff.  A non-partisan tax commission in Colorado estimates that the state will bring in an additional $70 million this year on marijuana.

Let’s talk about some of the specifics of legalization.  More precisely, I would call the legislative move “State Decriminalization for Personal Use.”  Because none of this makes marijuana “legal” under federal law.  And it ain't 100% legal at the state level, either.

It is legal to purchase and possess up to one ounce of marijuana in Colorado.  It's also legal to cultivate up to 6 plants (up to 3 can be mature).  And if you are an out of state resident you can purchase a quarter of an ounce.  However, the possession of an abundance of pot is still criminal conduct.  Smoking out in the open, in public, is also illegal.  

Basically, if you possess an ounce or less there is no penalty.  If you possess over an ounce, it is considered a petty offense carrying up to 15 days in jail and a $100 fine.  2-6 ounces is serious legal trouble carrying a penalty of up to a year in jail and $1000 fine.  6-12 ounces can get you up to 18 months in jail and a $10,000 fine.  Anything over 12 ounces is a felony.

Trafficking is still very much illegal.  In Colorado trafficking of any amount is a felony, and the possession of 8 ounces or more is considered possession with the intent to distribute.

A key difference between the Kentucky and Colorado trafficking laws is that in Colorado, if you GIVE someone less than an ounce of marijuana for “no remuneration,” it isn’t considered a crime.  In Kentucky, it doesn’t matter if you receive compensation.  The “transfer” of marijuana makes it trafficking.

By the way, if you are a Kentucky resident you CAN go to Colorado and purchase marijuana, assuming you are old enough.  However, it should go without saying that if you take that legal purchase into another state that criminalizes marijuana possession – your legal weed just became illegal.  So you can’t legally bring it back into Kentucky.

For more questions on marijuana possession and trafficking, call Greg Simms at Murphy & Powell, PLC. 502.618.4949.  My door is always open.

**with the exception of officers that work on marijuana eradication teams – after all, their jobs depend on stomping out marijuana.

Free in Kentucky: Passing Out? Make Sure Your Keys Aren't in the Ig...

Free in Kentucky: Passing Out? Make Sure Your Keys Aren't in the Ig...: There are a lot of common misconceptions and/or myths about the law.  Let me take the next couple moments to dispel a couple or few.  123 g...

Passing Out? Make Sure Your Keys Aren't in the Ignition.

There are a lot of common misconceptions and/or myths about the law.  Let me take the next couple moments to dispel a couple or few.  123 go-

1) They didn’t read me my rights!!!!  It probably doesn’t matter.  The cops don’t have to read your Miranda Rights just because they arrest you.  Long story short, they only have to Mirandize you if you are going to be interrogated whilst in custody.  Blame Dragnet for this one.

2) If you put a penny in your mouth, it will beat the breathalyzer!!!  No.  Of course that’s not true.  Don’t be a jackass.

3) It’s illegal to drive without shoes on!!!  Not true, but I can see how one might reasonably believe this as it could be a safety issue.

4) If you’re drunk in a car, make sure the keys are out of the ignition so you don’t get a DUI!!!  Actually, this one holds a lot of weight and is damn near spot on.  And that brings us to the blog post of the day – Wells factor DUIs.

What happens when the police roll up on someone sleeping in a car, assuming the sleeping person is under the influence?  The answer, as it almost always is: It depends.  There are a lot of fact specific questions that need to be asked in order to find out if the Commonwealth can actually prove someone was driving under the influence. 

First things first, we have to define the word “driving” and it does not mean “driving” (doesn’t that sound like some serious lawyer BS?).

“DUI” and ‘Driving Under the Influence” are common terms for a legal charge in Kentucky based on KRS 189A, the statute that governs Operating a Motor Vehicle Under the Influence.  The key word is “operating” and not “driving.”  It is possible to get a DUI when you are not driving.

Now back to our hypothetical situation. 

The police roll up on Frank the Tank, who is passed out in the Red Dragon.  He just took the restrictor plate off and she ain’t exactly street legal, so we’ll keep that on the downlow.  But let’s say Frank is drunk in the old muscle car – and he is completely unconscious. 

With this information, we still don’t have enough to know whether Frank will be convicted of DUI.  Some of the first questions I would have for Frank would be “How did you get there?”  “Were you parked in a legitimate parking spot?  If not, where were you?”  “Was the engine running?” “Was the car in park?” And yes, I would certainly ask “were the keys in the ignition?”

My questioning is based on the Wells factor test that Judges use to determine if there was probable cause for a DUI arrest.  Commonwealth v. Wells is a published Kentucky case that sets forth some things to consider in order to determine whether there was sufficient “operation” of a vehicle.

The Wells factors include: 1) whether the person in the vehicle was asleep or awake; 2) whether or not the motor was running; 3) the location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location; and 4) the intent of the person behind the wheel. Wells v. Commonwealth, 709 S.W.2d 847, 849 (Ky. App. 1986).

One of the beautiful quotes from Wells is “a sleeping person is seldom operating anything” quoting Pomeroy.  But that only takes care of the first Wells factor.  The second factor concerns whether the motor is running.  If it is not running (especially if the keys are out of the ignition) then Frank the Tank passes the second Wells factor.  The next one is a bit tricky.  If Frank is passed out AT at red light, we have a problem.  If he is on the side of the road, that’s a little better but maybe not good.  If Frank is in a parking lot or in his driveway and is legally parked, then GREAT SUCCESS!  we pass the third Wells factor.  Lastly, we look to the intent of the person behind the wheel.  Again, if Frank is unconscious, he likely has formed the mental state to do anything except drool on himself.  The intent to drive is not present.

It should be noted that the factors should be taken as a totality of the circumstances test, meaning the failing or passing of one factor doesn’t necessarily pass or fail Frank the Tank.

That leaves us with the lesson for the day:  If you are going to pass out in a car, you should 1) be in a legal parking spot, 2) make sure the keys aren’t in the ignition, and 3) make it a little easier on your lawyer and pass out in the back seat or passenger seat, instead of the driver’s.

I hope this has cleared up any pass out/Wells DUI questions.  If you still have questions or concerns about DUI in Kentucky, call me – Greg Simms – at 502.473.6464.

My door is always open.