Selfish Stoners are Less Culpable

Sometimes growing marijuana is NOT "Marijuana Cultivation."

I know that sounds strange, but it's true.  It all depends on the intent of the individual who is growing the funny green plant.  "Intent" can be a very complicated legal concept - and it takes a while to get the hang of it.  Last week, there was some discussion of intent in the previous post about the "Stripper Arson" question, and I got some great feedback from some of you about intent.  That was a more complicated issue of "specific intent." Today, the conversation about intent will be very simple.  The question for the person growing is this:  Do you intend to transfer the pot, or do you intend to smoke it yourself?  If the stoner in question intends to hoard his or her weed, they are not "cultivating" for the purposes of Kentucky law.  KRS 218A.1423 controls this act, and it reads:

218A.1423   Marijuana cultivation -- Penalties.

(1) A person is guilty of marijuana cultivation when he knowingly and unlawfully plants, cultivates, or harvests marijuana with the intent to sell or transfer it.

(2) Marijuana cultivation of five (5) or more plants of marijuana is:

(a) For a first offense a Class D felony.

(b) For a second or subsequent offense a Class C felony.

(3) Marijuana cultivation of fewer than five (5) plants is:

(a) For a first offense a Class A misdemeanor.

(b) For a second or subsequent offense a Class D felony.

(4) The planting, cultivating, or harvesting of five (5) or more marijuana plants shall be prima facie evidence that the marijuana plants were planted, cultivated, or harvested for the purpose of sale or transfer.

Subsection (1) is especially important to today's conversation.  In order to be guilty, a person must knowingly and unlawfully plant, cultivate or harvest marijuana "with the intent to sell or transfer" the marijuana.  If the "intent to sell or transfer" element is missing, the person is Not Guilty.

So, if a person is growing less than 5 plants, and they intend to keep the marijuana for themselves, they are not guilty of Marijuana Cultivation.  In actuality, said stoner may only be guilty of Possession of Marijuana (which will only be a Class B Misdemeanor beginning in June of 2011).  And "Bogarting."*  Keep in mind that even passing a joint to your buddy can constitute a "transfer" of marijuana.  So if a person grows, and intends to share in the least, they are guilty of Marijuana Cultivation.

The "5 plant" provision in subsection (4) of the above statute is especially important.  Growing marijuana is illegal in Kentucky regardless of the number of plants, but generally speaking, people who grow 5 or more plants are committing felonies.  Growing 4 plants or less will get someone in much less trouble.

If you have a Marijuana Cultivation charge in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, call 502.618.4949 to speak with an experienced attorney.  You will not be charged for an initial consultation.  The lawyers at Gruner & Simms, PLLC have handled numerous Marijuana Cultivation charges with great success.

*"Bogarting" is not actually recognized as a criminal offense in the great Commonwealth of Kentucky.  Yet.

Questions answered in this blog post:  How many marijuana plants can someone grow in Kentucky without it being a felony, what is marijuana cultivation, what is the intent required for marijuana cultivation, how many weed plants is a misdemeanor, can I grow 5 plants in Kentucky, can I grow 4 plants in Kentucky, in Kentucky how many marijuana plants is a felony?

Stripper Arson Bar Lingerie

http://www.cbsnews.com/8301-504083_162-20026827-504083.html


Am I the only one who thinks this is the most entertaining criminal law story of the past six months?  I mean really - how often do you get to read about allegations of a stripper setting another stripper's lingerie ablaze because stripper #2 was "stealing customers"???


A couple of people have asked me how this can possibly be "arson."  The answer is that if the allegations are true, it could very well be arson.


I'd like to start by saying that everyone is innocent unless they plead guilty or they are proven guilty beyond a reasonable doubt.  Not many people take the presumption of innocence more seriously than myself.  The above article is simply a report about what police officers said, and is not necessarily the truth.


That being said, for the sole purpose of debating the subject of arson, we will assume that the allegations are true.  Word around the campfire is that Mrs. Anderson is charged with Arson in the First.  I haven't substantiated that rumor (if anyone gets the opportunity to ask her, let me know), but police frequently "over-charge" people, so I wouldn't be surprised.  Let's start with Arson in the First.  KRS 513.020 governs this offense, and reads:

513.020 Arson in the first degree.

(1) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, he starts a fire or causes an explosion, and;

(a) The building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or

(b) Any other person sustains serious physical injury as a result of the fire or explosion or the firefighting as a result thereof.

(2) Arson in the first degree is a Class A felony.

If the police charged Ms. Anderson with Arson in the First, and the allegations are true, she is not guilty of the offense for which she is charged.  The first sentence of the statute it requires a specific intent to destroy or damage a building.  If the allegations are true, Mrs. Anderson had no such intent.  Her intent was to destroy lingerie, in order to teach Stripper #2 a lesson about stealing customers.  Anderson is Not Guilty.

Let's move on to Arson in the Second.

This offense is governed by KRS 513.030, and reads as follows:

513.030 Arson in the second degree.

(1) A person is guilty of arson in the second degree when he starts a fire or causes an explosion with intent to destroy or damage a building:

(a) Of another; or

(b) Of his own or of another, to collect or facilitate the collection of insurance proceeds for such loss.

(2) In any prosecution under this section, it is a defense that:

(a) No person other than the defendant had a possessory or proprietary interest in the building, or, if other persons had such an interest, all of them consented to the defendant's conduct; and

(b) The defendant's sole intent was to destroy or damage the building for a lawful purpose.

(3) Arson in the second degree is a Class B felony.

Again, we don't need to get past the first sentence.  This statute also requires the specific intent to destroy or damage a building.

The lowest level of arson in the Commonwealth is Arson in the Third.  It is governed by KRS 513.040, and reads:

513.040 Arson in the third degree.

(1) A person is guilty of arson in the third degree if he wantonly causes destruction or damage to a building of his own or of another by intentionally starting a fire or causing an explosion.

(2) In any prosecution under this section, it is a defense that no person other than the defendant had a possessory or proprietary interest in the building, or, if other persons had such an interest, all of them consented to defendant's conduct.

(3) Arson in the third degree is a Class D felony.

Mrs. Anderson might have a problem getting past this one (if the allegations are true).  Starting a fire inside a building may or may not be considered "wanton" behavior.  This is a fact driven situation.  I think most people would agree that starting a fire inside a fireplace isn't wanton behavior.  Most people would also agree that starting a fire directly on a carpet by using an accelerant like lighter fluid would be wanton.  If you start a fire indoors on a non-flammable surface, it might not be considered "wanton" by some people.  Starting a fire ON a pool table, which has an inflammable slate base underneath the felt may just be negligent, not wanton.  It depends on who you ask.  If the fire was started directly on the carpet, there is more of a chance that the entire building could go up in flames, so it would probably be considered more wanton behavior.

But take note - if the police actually did charge her with Arson in the First, she is drastically over-charged.  Class A felonies carry a minimum penalty of 20 years in prison.  That kind of conviction can, at the very least, eliminate your stripping career.  Ms. Anderson wouldn't be out until she was in her 40s if she was convicted of a Class A felony.  On the other hand, a Class D felony carries only 1-5 years.  She might even get the charge amended down and end up taking a misdemeanor with no jail time whatsoever.  Ms. Anderson could be back on the main stage before you could say "Thirty Dollars for a bucket of beers!!!  How do strip club owners sleep at night!?!?" 

DUIs are like snowflakes...

They're all different.  The following is a brief overview of some DUI frequently asked questions and the answers thereto. Hopefully it will help explain to my readers why some DUIs get dismissed and some don't.  I hope you enjoy reading it.

Question:  Can I refuse to perform Field Sobriety Tests?

Answer:  Yes.  You can.  And you should.

Keep in mind that Field Sobriety Tests ("FSTs") and breathalyzers are two completely different animals.  There are legal ramifications to refusing to submit to an Intoxilyzer-type test (more on this later).  However, there is no law in this great Commonwealth that requires you to perform FSTs.

A lot of clients believe that they convince a police officer to let them go if they just perform the tests and pass them.  The problem with that rationale is this: the police officer already suspects you of drinking and driving if they're asking you to perform FSTs.  The police officer gets to administer the test, and the police officer (who already thinks you are drinking and driving) gets to subjectively determine the results of the test.  If you don't perform the tests, you won't give them ammunition to use against you.  Don’t perform these tests.  

I've said it before and I'll say it again:  Cops are not your friends.  They are not trying to help you.  Do not help them build a case against you.

Question:  Why did the officer make me blow on a breathalyzer twice?

Answer:  Because the first one was inadmissible in court.

When I see clients who have gotten a Kentucky DUI charge, often they want to know why they had to provide two breath samples to the Police.  The short answer (which is the only answer I’m going to give you on this lazy Sunday) is that Police usually offer two breathalyzers.  The first one you might encounter would be the Portable Breath Tester, or “PBT.”  Officers carry the PBT on their Batman-esque utility belts in case they “detect the odor of alcohol on or about your person.”  This PBT is a nicer, more expensive police version of the $80.00 “AlcoHAWK slim” PBT that I own and keep in my golf bag. 

The problem with PBTs (even Police PBTs) is that they are not 100% accurate.  In fact, they are consistently inaccurate unless you calibrate them regularly.  Because of the inherent un-reliability of these machines, the results that they provide are inadmissible in a Kentucky Court of Law.  You can and should refuse to take a PBT. 

The second type of breath tester IS admissible.  After an arrest, (if you are not asked to submit to a blood or urine test) you will most likely be asked to give another breath sample back at the police station.  The police officer will probably lock you up and “observe” you for at least twenty minutes before asking you to step up to a much larger breath tester.  Most police departments in Kentucky use the Intoxilyzer 5000, which is manufactured by CMI, Inc., in Owensboro, Kentucky.  These machines (if calibrated and serviced regularly) are about as reliable as breath testers come.  There are legal ramifications to refusing to submit to an Intoxilyzer-type breath test.  You should talk to a lawyer about whether to submit to an Intoxilyzer test.

There are a lot of rules concerning how a police officer must administer a breath test – for example, it must be done within 2 hours after the cessation of your vehicle in order to be admissible in a per se prosecution – so talk to a lawyer about your circumstances.  The results of your breathalyzer may or may not be allowed in Court.

As a side-note, if you tend to drink a couple of beers while playing golf (or other activity), you should be careful about how many you have consumed, and how long it took you to consume them. It wouldn't hurt to get an "AlcoHAWK slim" and keep it in your golf bag (or other...activity...bag).  Just in case.  And if the situation is questionable, call a taxi.

Question:  If I get a DUI and my BAC was really high, shouldn’t I just go ahead and plead guilty, instead of hiring a lawyer?

Answer: That's a bad idea.  Let me tell you why.

If you have a DUI charge in Kentucky, your BAC isn’t the only factor in your case.

If you end up blowing under a .08 on an admissible breath test, you have a pretty great case.  Feel free to skip ahead to the section which includes my contact information.  If, like the vast majority of my DUI clients, you blow over, it is time to explore other alternatives to your defense.  Typically, I tend to fight Kentucky DUI charges in two ways.  1) Attacking the stop; and 2) Attacking the FSTs.  There also may be other issues, such as "control" of the vehicle.

1) Police aren’t allowed to stop anyone for any reason.  There are legal standards for when Police may effectuate a traffic stop – which is great, because otherwise, police would have carte blanche to abuse their authority (racial profiling, for example, could be even more rampant).  In Kentucky, a police officer must have reasonable, articulable suspicion that you are engaged in criminal activity to pull you over.  If the officer did not have reasonable, articulable suspicion, the officer performed an unlawful stop.  The ramifications to an unlawful stop are tremendous.  A case can be completely dismissed on the basis of an unlawful stop.

For example, I recently represented a client on a Bardstown DUI charge who stopped his truck in the parking lot of a Doctor’s office after business hours.  It was approximately 11:00pm.  The police officer felt that being at a closed Doctor’s office at 11:00pm was “suspicious” activity.  As my client began to pull out of the parking lot, the officer drove over and stopped my client.  The client blew “over the limit” on an Intoxilyzer test.  After a grueling hearing before a District Court Judge, I convinced the Judge that the officer lacked reasonable, articulable suspicion for the stop – a violation of my client’s 4^th Amendment rights.  The case against my client was dismissed.  This was just one of the many cases I’ve seen where the case was dismissed because an officer stopped someone in an unlawful manner.  Each case is different, and each case has its own set of circumstances and issues.  Your case may or may not be able to be dismissed.  Talk to an attorney about your case for more information.

2) Officers are taught to perform FSTs according to the National Highway Traffic and Safety Administration (“NHTSA”) guidelines.  For some officers, it has been years since they learned how to perform the tests.  Unfortunately, some officers “guess” at how to perform the tests if they cannot remember the details.   If they do not perform the tests correctly, the results of those tests may not be admissible as evidence against you.  That makes a lot of sense, because a flawed test can often produce flawed results.

For example, I recently represented a client on a Louisville DUI charge, and was able to show the Judge that the officer incorrectly performed the Horizontal Gaze Nystagmus test and the Walk and Turn test.  The Judge agreed that the tests were not performed in accordance with the NHTSA guidelines, and held that the tests were inadmissible.  Again, each case is different, and each case has its own set of circumstances and issues.  Your case may or may not be able to be dismissed.  Talk to an attorney about your case for more information.

Lastly, there may be other circumstances which might be beneficial for your DUI charge.  In Kentucky, the Commonwealth must prove beyond all reasonable doubt that you were not only under the influence, but that you were in control of, or operating a motor vehicle.  This “control” of the vehicle issue is very fact-specific.  Is someone who is asleep in a parking lot of an apartment complex “in control” of the vehicle?  What if they are in the passenger seat?  What if they are in the driver’s seat but the keys are not in the ignition?  What if the car is on but not in gear?

I (very) recently tried an Elizabethtown Driving on a DUI Suspended License charge in front of a Hardin County Jury.  The facts were this: my client was at Court, and the Judge suspended his license for a DUI.  (I did not represent the client for the DUI charge).  The client walked out of the courthouse, and a plain-clothes police officer followed him.  Client went up to his truck, opened the door, got inside, started the vehicle and pressed the brake.  After the brake lights came on, the officer shouted for my client to get out of his truck, and client was arrested.  At trial, the issue of “control” of the vehicle was heavily debated.  In the end, I was able to convince the Jury that my client was Not Guilty.  After only twelve minutes of Jury deliberation, the client walked away free and clear.

Conclusion

All Kentucky DUI charges are different.  Even from this very cursory overview of some DUI issues, you can tell that some “small” facts can completely change the outcome of a case.  Even if you blow over the legal limit on an admissible breath tester, you should talk to an attorney about your DUI charge.  At Gruner & Simms, PLLC., we take DUI defense very seriously.  We have handled numerous cases with favorable results.  If you have been charged with a DUI in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, call 502.618.4949 and schedule a free consultation with an experienced Kentucky DUI lawyer.

How much marijuana is too much marijuana?

Answer: complicated.

The law as it is –

     As it currently stands in this great Commonwealth, a person who is knowingly in possession of any amount of marijuana is committing a Class A misdemeanor.  That means the penalty can be a fine, or jail time up to one year, or both.  “Any amount” of marijuana can include resin or residue in a pipe or other paraphernalia, shake (left in a grinder, the floorboard of a vehicle, or in your carpet by the coffee table), marijuana seeds, etc.

     Actual trafficking in marijuana can include more than just selling marijuana to someone else.  To “traffic” means to manufacture, distribute, dispense, sell, transfer OR possess with the intent to manufacture, distribute, dispense, or sell.  A key word in that definition is “transfer.”  This means that giving a buddy a joint, or passing a bowl in the circle, equals “trafficking in marijuana.”

     Currently, trafficking in less than eight (8) ounces of marijuana is a Class A misdemeanor (the second or subsequent offense is a Class D felony).  Trafficking in more than eight (8) ounces but less than five (5) pounds is a Class D felony (the second or subsequent offense is a Class C felony).  Trafficking in more than five (5) pounds is a Class C felony (the second or subsequent offense is a Class B felony).

     When people ask me “how much marijuana is too much marijuana for simple possession?” they are asking if there is an amount which might trigger a presumption that one intends to traffic.  There is a statutory answer, and then there is the REAL answer.  Under the Kentucky marijuana trafficking statute, possession of eight (8) ounces or more is prima facie evidence that the possession occurred with the intent to traffic.  So the statutory answer is “eight ounces.”

     The real answer is more like an ounce or so, if you’re talking about weight alone.  I’ve seen many clients who only possessed about an ounce of marijuana, and based on weight, they were charged with trafficking.  In addition to weight, other evidence might be considered by a police officer when deciding how to charge someone with either marijuana possession or trafficking.  If you have substantially less than an ounce, but you also have any of the following in your possession: scales, baggies, twist ties, a large amount of cash, etc., in addition to the marijuana, a police officer will likely charge you with trafficking.

The law is changing –

               

     House Bill 463 has been signed into law.  Most of the provisions of the bill will become effective on June 8, 2011 (there are five sections that were effective immediately upon the Governor’s signature, and five sections that are delayed).  This new Kentucky law is going to drastically change marijuana possession, trafficking, and the procedure associated with both. 

     Let me take a little detour here for a moment.  Kentucky has been moving in the right direction, slowly but surely, concerning marijuana.  While 15 states have taken steps to decriminalize marijuana for medicinal purposes, Kentucky has made some slow changes in the right direction.  In April of 2010, the law was changed concerning the possession of paraphernalia – what used to be a felony offense for the second or subsequent possession is now a non-enhanceable offense.  In addition to the change in the paraphernalia statute, HB 463 is making some very significant changes that will affect people charged with Kentucky marijuana charges.

     First, simple possession of marijuana will drop from a Class A misdemeanor to a Class B misdemeanor.  An imposition of a “jail cap” will be placed on the charge as well, limiting the penalty to forty five (45) days instead of the ninety (90) day maximum which normally accompanies a Class B misdemeanor.

     HB 463 will also change the range of “near school” trafficking from 1000 yards to 1000 feet.  This is a drastic change considering trafficking near a school is a Class D felony, and because a lot of Kentucky towns are very small (such that, in extremely small areas, the vast majority of residences are within 1000 yards of a school).

     Most importantly, HB 463 will require police officers to give a citation for simple marijuana possession in lieu of an arrest.  This is evidence of the Kentucky Senate’s evolving mentality toward relatively harmless drugs and the incarceration of alleged offenders.  For all of those people who have been angry about tax payer money being spent (to the tune of about $20,000 per year) to house citizens charged with simple marijuana possession, this is fantastic news.  Clearly, this great Commonwealth can use that money in a manner which provides a greater benefit to its citizens.  For example, by housing people who are truly dangerous.

     The foregoing has been a VERY brief overview of Kentucky marijuana laws and the changes which are occurring to the same.  For a more in-depth analysis, see a lawyer for a consultation.

UPDATE TO THIS BLOG POST

SUNDAY, JUNE 5, 2011

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 one of our experienced Louisville drug charge lawyers 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, is a marijuana rally “organized crime”, is possession of marijuana a misdemeanor or felony.

Conclusion

     Possessing marijuana is still a crime in Kentucky, regardless of the amount.  However, possession of an ounce or more, or any other evidence of trafficking, can get you into much more serious trouble.  If you have a marijuana charge in Louisville, Lexington, Elizabethtown, Frankfort, or the surrounding areas, you should talk to an attorney about your charge.  Greg Simms has handled numerous marijuana charges, from possession to trafficking to cultivation.  If you have a Kentucky marijuana charge, call 502.473.6464 for a free consultation with an experienced drug charge lawyer.

Questions answered in this blog post: how much weed is trafficking in Kentucky, what actions constitute trafficking in marijuana, what are the changes in law from house bill (HB) 463, how much marijuana can I carry without intent to sell/sale, is marijuana possession a misdemeanor or felony, is paraphernalia a felony, is paraphernalia an enhanceable offense, is possession of marijuana seeds considered possession of marijuana.

If I was arrested and charged with a crime I didn’t commit, and the case was dismissed, can I sue the police officer/police department?

The answer to this question is, “Probably.”  Allow me to explain.

Let me start by saying that there are a lot of great police officers out there.  The good ones do a dangerous job for little pay, just because they want to give back to their communities.  We applaud the good ones.  But not all of them are good ones.  Some police officers abuse their authority and engage in false arrests and police brutality.  The sad part, is when they abuse their authority, most citizens are basically helpless against them. 

If you have been charged with a crime you didn’t commit, and the criminal case ended favorably for you, you may be able to sue to recover damages for your pain and suffering, lost wages, attorney’s fees, and possibly punitive damages.

Jury trial “Not Guilty” verdict:

There are a couple of ways for a criminal case to end favorably for you.  If you went to a jury trial and were found Not Guilty, congratulations!  It is fairly easy to move forward with a civil case after a Not Guilty verdict is returned.  You don’t need to worry about the “stipulation of probable cause” section that is to follow.  You should see an attorney immediately about your possible civil case against the officer/police department.  You can feel free to skip to the “meeting with an attorney about your civil case” section.

Stipulation of probable cause:

If you have a current criminal case against you, please be advised that if you stipulate probable cause for your arrest, it can negatively affect your possible civil case against the officer/police department.  Often, if a prosecutor agrees to recommend dismissing your case, they will want you to agree to stipulate probable cause for the arrest.  This means that you agree that the officer had the right to arrest you at the time of the arrest.  If you agree, and stipulate probable cause, it can make things very difficult in a civil case against the officer/police department - especially if your case is for false arrest, rather than police brutality.  You may even have difficulty getting past Summary Judgment.  If a judge grants Summary Judgment against you, your civil case will be dismissed.

In short, a stipulation of probable cause in a criminal case can be very damaging to your possible false arrest case.  If your primary concern is to pursue a false arrest case, you should not stipulate probable cause for the arrest.

Meeting with an attorney about your civil case:

Most attorneys will not charge you for an initial consultation.  We will sit down with you, hear your story, and make a determination as to whether we will take your case, and not charge you for the consultation.  When you call an attorney, always ask if the first consultation is free.  Once you see an attorney about your case, make sure you understand how the attorney’s fees will be collected. 

For example, I take false arrest and police brutality cases on contingency fees.  This means that I collect my legal fee from the money that is recovered in the lawsuit.  I also front the costs of litigation, so that a client won’t have to pay out of pocket for filing fees, depositions, expert witnesses, etc.  Those costs can be very expensive, so make sure you ask an attorney about who will pay the costs of litigation.  At the end, assuming we recover against the police officer/police department or the insurance company that insures them, I re-coup the costs of litigation from the amount of money recovered.  If I don’t recover for you, you don’t pay me any money.

The damages in false arrest/police brutality cases vary from case to case, and every case is different.  The amount of money recovered depends on the degree of negligence/intentional conduct on the part of the officer, the amount of injury sustained by the plaintiff, and the insurance coverage available.

Statutes of Limitations:

The Commonwealth of Kentucky has statutes of limitations which limit the time available to file a lawsuit.  If the time allotted by the statute of limitations passes (or, “runs”), then your civil suit can be barred forever.  That makes it very important for you to contact an attorney as soon as possible.

Conclusion:

A lot of attorneys don’t take false arrest/police brutality cases.  Therefore, when you are looking for an attorney to take your case, make sure the attorney has had experience with these kinds of cases.  At Gruner & Simms, PLLC., we have handled numerous false arrest and police brutality cases.  If you have a possible civil case against a police officer or police department, call 502.618.4949 for a free consultation with an experienced false arrest and police brutality lawyer.

Results.  As fast as the law will allow.


Questions answered in this blog post: What can be done about police brutality; can I sue for false arrest; what lawyers take false arrest cases; how do I find a good Louisville police brutality lawyer; what is a civil rights lawsuit; what is stipulation of probable cause; how does a stipulation of probable cause affect a false arrest/police brutality claim; what is the statute of limitations on a civil rights lawsuit; what is the statute of limitations on a false arrest/police brutality claim; explain how lawyer fees work; what is a contingency fee; how can I find a good Lexington false arrest/police brutality lawyer?

DUI - How to handle a DUI stop “Have you been drinking tonight?” question.

One frequent question I get (especially if I am having a drink with someone) is: “If I get pulled over and the cop asks me if I’ve been drinking, what should I tell the cop?”

The answer is, “It depends.”  Which is annoying, because all the person usually wants is some sort of magic phrase that will get them out of trouble. Or maybe they want my permission to lie to a police officer, which I don’t ever advise.  The longer answer is as follows:

If you haven’t been drinking and don’t have any contraband in the car, feel free to just tell the police officer that you haven’t been drinking.

That being said, I have a lot of clients who would have been a lot better off if they had just remained silent.  You have the right to do that.  Remember Dragnet?  And basically every single cop/lawyer show since Dragnet?  “You have the right to remain silent” is the first, most important, and very frequently ignored portion of the Miranda warnings.

[If you feel bad about “hiding” information from the police, just remember – the right to remain silent is an essential part of your Constitutional Rights.  You are not a bad person for invoking your rights as an American.  Trust me.  I know a lot of bad people.  Invoking your rights doesn’t make you one of them.]

If a police officer asks you if you’ve been drinking, and you have, your answer should be something like this:  “I wish to remain silent.”

Or, if you think that makes you sound guilty, you could say, “I have an attorney.  His/Her name is _________.  If you have any questions, you can call him/her.”  Some of my clients believe that this answer makes them sound less “guilty” and more “paranoid.” 

You do not have to divulge the whole truth to the police officer.  You can remain silent.  Cops are not your friends.  They are not trying to help you.  Do not help them build a case against you.

The key to remaining silent is not to be silent at first, but then answer the police officer’s next question.  If at first, you say “I have an attorney.  His name is Greg Simms.  If you have any questions, you can call him.”  But then the police officer asks, “Where are you coming from tonight?”  You should not say “I’ve been at the nudie bar, slamming down shots.”  Instead, you should continue to state, “I have an attorney.  His name is Greg Simms.  If you have any questions, you can call him.”

This might go without saying, but if you reek of booze and you breathe all over a police officer, they're probably going to get you out of the car for sobriety tests.  Thus, in the ideal situation, you would have one of my business cards with the aforementioned phrase written on the back.  That way, you don't have to talk to the cop at all - you can just hand the officer the card.

On a side, but related note, if you are stopped by a police officer in Kentucky, you are required to show proof of insurance, registration, and license.  If you don’t, you can be cited for not having any or all of the same. 

If you have a DUI charge in Louisville, Elizabethtown, Frankfort, Lexington, or the surrounding areas, and would like to talk to a Louisville, Ky. DUI lawyer, call Gruner & Simms, PLLC., at 502.618.4949.  One of our experienced DUI lawyers will be happy to sit down and talk to you about your case for free.

Results.  As fast as the law will allow.


Questions answered in this blog post:  Do I have to show police my license, insurance and registration; how do I find a good Louisville DUI lawyer; what am I supposed to say to an officer if I get stopped for DUI; Do you have to take a breathalyzer; do you have to take a DUI breath test; what are the rules on Kentucky DUI breath tests; how do I find a good Lexington DUI lawyer; do I have to answer a police officer's questions; do I have to take field sobriety tests in Kentucky; how do I find a good Elizabethtown DUI lawyer; if a cop asks if I have been drinking, what should I say; how to handle a DUI have you been drinking question; what is the right to remain silent?

Introduction

My name is Greg Simms.  I'm happy to be free in Kentucky and I hope you are too.

I grew up in Marion County, just a couple of minutes outside Raywick, Ky.  Marion County is famous for Maker's Mark, country ham, and the Cornbread Mafia.  It is a beautiful place.  I went to law school at the University of Louisville, and now I'm the head of the Criminal Defense section at Murphy & Powell, PLC.

I handle DUI, Drug Charges, Assault, Sex Crimes, Robbery, Burglary, Theft, Manslaughter and Murder cases.  I also sue police officers who abuse their authority and other governmental entities (schools, prisons, etc.) for violations of Constitutional Rights.

I am an attorney licensed to practice in the great Commonwealth of Kentucky.  I am not licensed to practice in any other state in the United States, and I do not claim to be familiar with the laws of any other state.  The postings on this blog are not to be considered legal advice.  If you want legal advice, I will be happy to speak with you and I will not charge you for an initial consultation.  You can call my law firm, Murphy & Powell. at 502.473.6464.  Neither this blog, nor any information contained herein, creates any attorney/client relationship.  This blog is for entertainment purposes only.