Free in Kentucky: Caught with a Joint? You can get more time for th...

Free in Kentucky: Caught with a Joint? You can get more time for th...: Seriously.   Apparently the Kentucky legislature believes that rolling papers are more dangerous than marijuana.   Far be it from me to ac...

Caught with a Joint? You can get more time for the paper than for the pot.

Seriously.  Apparently the Kentucky legislature believes that rolling papers are more dangerous than marijuana.  Far be it from me to act like I know more than the Kentucky legislature, but I think maybe they didn't follow the advice of the learned Tom Simms and "mow the front yard first" on this one.*

The definition of “Paraphernalia” is broad.  To say the least.  We’ll skip a lot of the fluff and concentrate on what’s important for today:

“all equipment, products and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter.

It includes but is not limited to:

(a) Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;

(g) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining marijuana;

(l) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as: metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; water pipes; carburetion tubes and devices; smoking and carburetion masks; roach clips which mean objects used to hold burning material, such as marijuana cigarettes, that have become too small or too short to be held in the hand; miniature cocaine spoons, and cocaine vials; chamber pipes; carburetor pipes; electric pipes; air-driven pipes; chillums; bongs; ice pipes or chillers.

(5) Any person who violates any provision of this section shall be guilty of a Class A misdemeanor.

I’ve left out the majority of other types of paraphernalia that are typically associated with other controlled substances (for example, syringes) in order to highlight the topic of marijuana paraphernalia.  Notice that possession of marijuana paraphernalia is a Class A misdemeanor.  That means that the offense carries a punishment of up to one year in jail.

Now let’s move on to possession of marijuana.  KRS 218A.1422 governs possession, and reads:

(1) A person is guilty of possession of marijuana when he or she knowingly and unlawfully possesses marijuana.

(2) Possession of marijuana is a Class B misdemeanor, except that, KRS Chapter 532 to the contrary notwithstanding, the maximum term of incarceration shall be no greater than forty-five (45) days.

As you can see, possession of marijuana is a Class B misdemeanor – which normally carries a penalty of up to 90 days in jail.  However, the beautiful relief of House Bill 463 came through in June of 2011 like sweet summer rain and decriminalized marijuana from a Class A misdemeanor to a Class B misdemeanor with a 45 day jail cap.

So, let’s say you 2 friends are standing on the corner in the highlands.  “Tony” holds a fistful of marijuana – about 8 grams.  “Nick” holds a joint – about a gram of marijuana rolled up in a rolling paper.  Although Tony has more smokable marijuana on his person, Nick is actually committing the more serious crime, a Class A misdemeanor.

Ridiculous, huh?  I thought so too. 

If you have been charged with a marijuana offense in Louisville, Lexington, Elizabethtown, Frankfort or the surrounding areas, you should contact a lawyer.  For a free consultation with a Louisville controlled substance lawyer, call 502.618.4949 and talk to Greg Simms today.

Simms & Reed, PLLC.  Results.  As fast as the law will allow.

*Not to be confused with my father's advice to us on our first day of kindergarten, "Prior planning prevents piss poor performance."

Free in Kentucky: Can I Break a Car Window to Save a Dog in a Hot Ca...

Free in Kentucky: Can I Break a Car Window to Save a Dog in a Hot Ca...: The question of the week comes from another attorney (we’ll call her “Robin”) who sent me a message on Facebook.  Let me set the stage for...

Can I Break a Car Window to Save a Dog in a Hot Car?

The question of the week comes from another attorney (we’ll call her “Robin”) who sent me a message on Facebook.  Let me set the stage for the question:

It was an ordinary Sunday afternoon in Louisville, Kentucky, much like any other Sunday afternoon in July.  The white Kentucky sun beat down with a relentless 106 degree cruelty that only Mother Nature can provide.  A wavy haze rose from the asphalt, rubber, metal and glass of the Kroger parking lot.  It was staggering, this heat. 

Robin stepped out from the cool confines of her Ford Fusion, and onto the asphalt.  Instantly, she felt the sticky discomfort and forced herself to think optimistically.  It will be a short walk across this parking lot to the Kroger.  They’ll have the air conditioning blasting inside.

Robin isn’t one to snoop.  Honestly, your business is your business and she has enough business of her own.  But on this particular Sunday, as she made the brief but taxing journey across the Kroger parking lot, something caught her eye.  There, in the backseat of an old, beat up Toyota Camry, was the most adorable of adorable dogs. 

It was a small dog, about 15 lbs or so.  short nose.  medium length hair.  But the most commanding feature of this particular animal was the look of fear and hopelessness in its eyes.  The dog was trapped in the old Camry – its owner having abandoned it for the tenure of the owner’s trip to Kroger.  The windows were up.  The doors were locked.  Robin’s heart sank.

This dog was dying.

The question posed by Robin is this:  Am I legally allowed to break the window? 

Back in that Kroger parking lot, Robin doesn’t have time to think things out.  She has read the National Weather Service’s warnings on this subject, and knows that every minute is crucial.*  Robin goes back to her Fusion, pops the trunk, grabs a tire iron, and liberates the animal.

Let’s find out if Robin is going to do hard time, shall we?

We’ll start with the proposition that, if Robin breaks the window of the Camry (damage which would total $273.50 for the replacement window, not including labor), she would be committing a criminal offense.  Specifically, Criminal Mischief.  If Robin damages someone else’s property, and causes less than $500 in damage, she is committing Criminal Mischief in the Third Degree, which is a Class B misdemeanor.  Since this crime carries up to 90 days in the County Jail, Robin is seriously concerned about the ramifications of her Kroger Parking Lot choices.  So, assuming Robin’s conduct would be criminal in nature, we need to find a good defense.

The Kentucky Revised Statutes provide “principles of justification” in KRS 503.  Among the justifications for committing a crime are “Choice of Evils,” which is found in KRS 503.030.  The statute states in pertinent part:

(1) Unless inconsistent with the ensuing sections of this code defining justifiable use of physical force or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged[.]

Basically, the “choice of evils” defense allows a person to commit what would otherwise be a crime, if that person genuinely believes it is necessary to prevent a greater evil (injury).  The question then becomes: What is/are the injury or injuries inflicted, and what injuries would be prevented.

From a purely financial perspective, things don’t look good for Robin.  The window is worth $273.50, based on a blind guess conjured in my head as I write this blog.  The dog, however, is considered only personal property, or “chattel” in Kentucky.  The law recognizes no sentimental value in the animal.  At best, the dog is probably worth $50.  Thus, considering only the financial aspect of the “damage,” one should let the dog die.  $273.50 is greater than $50. 

However, Robin makes a little scratch, and so she hires a good lawyer.  Some young, handsome hotshot named Greg Simms.  Simms informs her that this “Choice of Evils” justification may work out for us after all.  The law is slightly ambiguous, and speaks of “greater injury.”  Although the injury caused in Criminal Mischief is purely monetary in nature, the Choice of Evils justification does not speak in such constricting terms.  If we get creative with the defense, it can still work for us.

Simms explains that the owner of the dog was most likely committing the crime of Cruelty to Animals in the Second Degree, a Class A misdemeanor, by keeping the dog in a car with the doors locked and windows up in the 106 degree heat.  By arguing that Robin made the choice to commit a Class B misdemeanor in order to prevent a Class A misdemeanor (a greater crime), we can justify Robin’s actions.

What may be even more important is the fact that the Choice of Evil “necessity” is determined by what the defendant subjectively “believes” to be necessary.  So long as Robin genuinely believed that she needed to break the window to prevent a greater injury, it doesn’t matter if Robin was correct in her belief.  Thus, if the owner of the dog only ran in for a very brief time, and came out just as Robin broke the window (so we can assume the dog was NOT going to die), Robin still has a valid defense, based on her belief that the actions were necessary.

In short, the answer is “Yes.  Robin can break the window because the ‘injury’ of property damage would be outweighed by the ‘injury’ she would be preventing.”

Robin will rest easy knowing that she is not going to spend 90 days in the clink, eating nearly edible bologna sandwiches and awkwardly taking showers with some of her own clients.

If you have any other questions or concerns on this issue, please feel free to call me, attorney Greg Simms, at 502.473.6464.  Visit www.louisvillefirm.com.

 *http://www.nws.noaa.gov/os/heat/index.shtml

Free in Kentucky: DUI 4 is a Felony in Kentucky. That's Kind Of A B...

Free in Kentucky: DUI 4 is a Felony in Kentucky. That's Kind Of A B...: This is the end of the road for our DUI punishment range analysis. I know.  We've had some good times.  But everything comes to an end...

DUI 4 is a Felony in Kentucky. That's Kind Of A Big Deal.

This is the end of the road for our DUI punishment range analysis.

I know.  We've had some good times.  But everything comes to an end.  It's not you.  It's me.  I can't find any more law on greater punishments for DUI crimes.

We'll still be friends.  I promise.  And we'll keep in touch.  I'll keep writing blog posts on different subjects.

So far we have gone through the possible punishments for DUI 1^st, 2^nd, and 3^rd.  Today, we’ll be talking about the most serious DUI charge you can face in Kentucky, the DUI 4^th offense within a 5 year period.

You might recall that we refer to DUI as an “enhanceable offense” in Kentucky.  Basically, that just means that, within 5 years, the punishment for a second or subsequent offense is worse than the previous punishment or punishments.  A DUI 2^nd is worse than a 1^st, a 3^rd is worse than a 2^nd, and the 4^th within 5 years is as bad as they come.  If you still have any questions or concerns about the punishments associated with DUI 1^st, 2^nd, or 3^rd, please feel free to go back over the past couple of blog posts, or call me if you would like a “real-time” answer.

[All of this talk about punishment is certainly not meant to lead you to believe that EVERYONE who is charged with a DUI is punished.  There are a lot of ways to fight DUI charges, and if you have a decent Louisville DUI lawyer, they may even be able to get the charge completely dismissed.  If you are charged with a DUI, call a lawyer.  For example, me.]

If you plead guilty, or are found guilty, of a DUI 4^th in Kentucky, here’s what you can expect, pursuant to KRS 189A.010:

For a fourth or subsequent offense within a five (5) year period, be guilty of a Class D felony. If any of the aggravating circumstances listed in subsection (11) of this section are present, the mandatory minimum term of imprisonment shall be two hundred forty (240) days, which term shall not be suspended, probated, conditionally discharged, or subject to any other form of release[.]

In addition to the above, if you plead guilty to a DUI 4^th in Kentucky, any decent Louisville DUI lawyer will tell you that you are facing a DUI service fee, a license suspension of 5 full years, and alcohol/drug education classes.

Yes, a DUI 4^th in Kentucky is a felony.  A Class D felony in Kentucky carries a penalty range of 1-5 years in prison.  But most Class D felonies in Kentucky don’t have a mandatory minimum jail service – and typically a first time felon can ask for probation (or better).  However, DUI 4^th requires a mandatory minimum120 days in jail (you might be thinking “I didn’t read that in the statute above!” and you would be right, but the 120 day mandatory minimum is enumerated in subsection (8) to KRS 189A.010.  I’m not sure why they didn’t just put in the above section.) and this 120 day sentence cannot be probated.

 

Notice that the mandatory minimum jail time is doubled to 240 days of incarceration if an “aggravating circumstance” is present.  To put that in perspective, at the class D felony level, a felony “year” equals a serve out time of 5 months and 27 days.  That means that an aggravated DUI 4^th carries a mandatory minimum of the equivalent to nearly a felony year and half. 

So what does it mean when lawyers say someone is charged with an “Aggravated DUI” or a “DUI with an aggravator?”  The list of aggravating circumstances includes:

1) Operating a motor vehicle in excess of thirty (30) miles per hour above the speed limit;

2) Operating a motor vehicle in the wrong direction on a limited access highway;

3) Operating a motor vehicle that causes an accident resulting in death or serious physical injury as defined in KRS 500.080;

4) Operating a motor vehicle while the alcohol concentration in the operator's blood or breath is 0.15 or more as measured by a test or tests of a sample of the operator's blood or breath taken within two (2) hours of cessation of operation of the motor vehicle;

5) Refusing to submit to any test or tests of one's blood, breath, or urine requested by an officer having reasonable grounds to believe the person was operating or in physical control of a motor vehicle in violation of subsection (1) of this section; and

6) Operating a motor vehicle that is transporting a passenger under the age of twelve (12) years old.

A refusal under subsection (5) is NOT an aggravator for a DUI 1^st, but it IS an aggravator for a DUI 2^nd, 3^rd, or 4^th.  The explanation for this is extremely complicated, but trust me – that’s the truth.

There is no such thing as a “double aggravator.”  No matter how many aggravating circumstances are present, as long as there is at least one aggravator, the person pleading guilty to a DUI 4^th would serve a mandatory minimum 240 days. 

However, a jury could give a person convicted of a DUI 4^th substantially more time in prison.  Again, it carries a penalty range of 1-5 years because the offense is a Class D felony.  Which also means, as a convicted felon, the perpetrator would lose the right to vote, hold public office, and gun rights (plus a slew of other ramifications depending on the circumstances – like deportation, etc.).

That about does it for our discussion of the punishments associated with the “enhanceable offence” of DUI.

If you have been charged with a DUI 4th Offense in Louisville, Lexington, Elizabethtown, Frankfort, or the surrounding areas, you should know that you are charged with an extremely serious crime.  You should call 502.618.4949 and speak with Greg Simms, a Louisville DUI lawyer at Simms & Reed, PLLC.  The initial consultation is free.

Simms & Reed, PLLC.  Results.  As fast as the law will allow.


Questions answered in this blog post:  What is the penalty for DUI 4th; how much jail time can I get for a DUI 4th; what is an enhanceable offense; what is the difference between a DUI 3rd and DUI 4th; where can I find a good DUI lawyer Louisville Ky; where can I find a good DUI lawyer Elizabethtown, Ky; is DUI 4 a felony?


Check out http://www.duilawfirmlouisville.com/

Free in Kentucky: DUI 3: What is the Punishment for a DUI 3rd Offens...

Free in Kentucky: DUI 3: What is the Punishment for a DUI 3rd Offens...: This blog post is a continuation of our analysis of the different levels of punishment regarding the “enhanceable offense” of DUI in Kentu...