Free in Kentucky: Dragnet and Beyond: Your Miranda Rights and What T...

Free in Kentucky: Dragnet and Beyond: Your Miranda Rights and What T...: I’ve had a request to write about Miranda Warnings (also called your Miranda Rights) and, looking back on the time that I’ve been blogging...

Dragnet and Beyond: Your Miranda Rights and What They Mean

I’ve had a request to write about Miranda Warnings (also called your Miranda Rights) and, looking back on the time that I’ve been blogging, I have no idea why I haven’t done a post about the Miranda Warnings yet.  It’s an area of law that is very misunderstood by the public and I’d like to clarify the issues for the 3 of you who read this blog.

Recently, Miranda was a hot topic because of the Boston bombing and the detention of suspects therein – people were confused as to why the police wouldn’t have to give Miranda Warnings up front, and why they would want to wait.

Every TV show since Dragnet has taught Americans that police have to read you your rights as soon as you get arrested.  That’s not exactly true.

I suppose it’s prudent to start at the beginning, so let’s talk a little bit about what Miranda is.

Miranda v. Arizona is the case where the “Miranda Warning” rule was created by the United States Supreme Court.  Some laws are made by congress, some laws are made by courts, some laws are made by local governing entities and some are made by international treaty…the list of law origins goes on.  I’m sure there’s a SchoolHouse Rock about it somewhere on YouTube.  Anyway, the law on Miranda Warnings is a creature of caselaw.  That’s what lawyers call it when a law is made by case (because we are not creative).  And Miranda Warnings are named after Miranda v. Arizona, the case that established that particular rule of law (again, because we are not creative).

Basically, the law says that when police take you into custody (for the purpose of this post only, we will say that “custody” is the same as saying “arrested”) the officer has to explain your rights to you before they question you.

So what are your rights?  Well, at a bare minimum, the police should advise a suspect in custody that they have the right to remain silent, anything they say can be used against them in court, they have the right to an attorney, and if they cannot afford an attorney, an attorney will be provided for them.

“But Greg!?”  Says recently arrested individual learning about Miranda Rights over a disreputable internet blog.  “They didn’t read me my rights when I was arrested!  Can you get the case thrown out!?”

The answer is maybe, but not on those facts alone.  The ramification for a failure to read a suspect their Miranda Rights is that any evidence gleaned as a result of custodial interrogation will not be admissible in court.  So, no.  You don’t automatically just go free. 

If the police question you BEFORE they take you into custody (as they frequently do), they do NOT have to read you Miranda Rights.  Let’s say Officer Bob is walking down the street and smells a strange chemical smell coming from an alley.  He walks down the alley and sees a couple of ruffians up to no good.  Officer Bob asks, “What are you two doing back here?”  “Smokin’ Meth!” they reply.  “Well, then – you’re under arrest.”  Officer Bob never reads the boys their Miranda Rights.

In the preceding scenario, Officer Bob didn’t read the boys their Miranda Rights.  But Miranda v. Arizona wouldn’t preclude the statement “Smokin’ Meth!” from coming into evidence because the boys were not in custody at the time of questioning.  In fact, they were free to leave and did not have to speak to the police officer at the time they were questioned.  If they had shut their meth mouths, they may not have gotten arrested at all.

So – If you are 1) In custody, and 2) The police are going to question you, then the police have to read you your Miranda Rights.

These days, the police often go a step further, and have a custodial suspect sign a waiver of their Miranda Rights.  That way they have tangible evidence that the suspect was informed, and either waived or did not waive their right to remain silent/right to counsel.

That about does it for today.  Next time you watch Dragnet, and Friday reads Miranda, you can quote this entire blog post to your friends.  Seriously, nothing will make you look cooler.

If you have any other questions about Miranda Warnings, or your rights in general, you should call me.  502.618.4949, or you can email me at greg@attorneysimms.com.

Free in Kentucky: DUI Diversion: What it Means and Why It's a Good T...

Free in Kentucky: DUI Diversion: What it Means and Why It's a Good T...: Diversion is a beautiful thing.  As far as legal courses of action are concerned, it is the silver medal to the gold of Dismissal.  Or may...

DUI Diversion: What it Means and Why It's a Good Thing.

Diversion is a beautiful thing.  As far as legal courses of action are concerned, it is the silver medal to the gold of Dismissal.  Or maybe more like a gold medal with strings attached.

Let me break it down like this:  Most people are familiar with the term “probation.”  If you plea Guilty to a crime, or you are found Guilty at trial, you can receive jail time.  For a misdemeanor, you can receive up to a year in a county jail.  For felonies, you can receive a year or more in prison.  In order to avoid jail time, if you have a decent lawyer, your lawyer will ask for probation.  In lieu of actually serving jail time, a judge may order the time probated.  Essentially your probation period will be a period of time (usually measured in years) where you have to be good.  If you avoid further offenses, and abide by the conditions of probation, you don’t have to go to actual jail.  And that’s nice.

Diversion is even better than Probation. 

Diversion is a multi-faceted creature that can be used in a number of different ways.  It’s sort of like probation, because there will be a period of time where you have to be good.  And if you don’t get new charges and abide by the conditions of diversion, you can avoid a jail sentence.  But Diversion is better than probation because at the end of the diversionary period, the charge is DISMISSED.  That means you don’t have a conviction.

One of the best reasons to enter into a diversion agreement is that after a dismissal, you can expunge your record quicker than if you took a conviction.  A lot quicker.  Like, 5 years quicker.  And for felonies, it makes all the difference in the world.  Because without successfully completing diversion, the general rule is “Once a Felon, Always a Felon.”  If you successfully complete felony diversion, the plea is set aside, and the case is dismissed.  Unlike other felony cases, you can get the charge expunged from your record (subject to some other qualifications).

In most counties, Diversion is not an option for DUI charges.  However, in Jefferson County, there is a formal diversion program.  If you qualify for the DUI Diversion program, your license will be forfeited for a period of time, you perform some community service, pay about $800 in fines in costs, complete Alcohol Drug Education classes, and attend a Mothers Against Drunk Driving Victim Impact Panel.  Also, and obviously, you can’t get any new charges in the diversion period.  That period is one (1) year.  If you abide by the conditions, and successfully complete diversion, the DUI charge will be dismissed.  Two (2) years after the dismissal, you can have the charge expunged [this is a weird little caveat to the normal rules on time frames for expungement].

You will NOT qualify for diversion if you have an aggravated DUI.  That means if any of the aggravating circumstances listed in KRS 189A are present, you can’t get into the program.  Refusing to submit to a blood, breath, or urine test is NOT an aggravator for a DUI, 1^st offense.  However, refusal WILL prevent you from getting into the diversion program.  There are also time limitations, and other considerations that may prohibit you from entering the program.  For example, a large neck tattoo that says "No Regrets!"

If you have a DUI, you need a lawyer.  Ask your lawyer about whether you might qualify for the diversion program.

Also, if you have any other questions on this subject, please don’t hesitate to call.  502.618.4949.

Greg Simms, Attorney at Law

Free in Kentucky: Under a .08 Does NOT Always Mean You Are Legal.

Free in Kentucky: Under a .08 Does NOT Always Mean You Are Legal.: You’ve probably heard that in Kentucky, we have a “legal limit” for driving under the influence in Kentucky.  But what you may not know is...

Under a .08 Does NOT Always Mean You Are Legal.

You’ve probably heard that in Kentucky, we have a “legal limit” for driving under the influence in Kentucky.  But what you may not know is there are different kinds of DUIs.  Or, at least, there are several different ways DUIs are prosecuted.

If you operate a vehicle in Kentucky (and this means ANYWHERE in Kentucky, not just on the open public roadways), and your BAC is over a .08, you are guilty of DUI.  Specifically, you would be prosecuted under KRS 189A.010(1)(a).  That subsection reads: 

“(1) A person shall not operate or be in physical control of a motor vehicle anywhere in this state:  (a) Having an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person's breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle[.]”

This is what is known as the “Per Se rule.”  If the Commonwealth (specifically, it would be a County or Assistant County Attorney if a DUI 1^st, 2^nd or 3^rd) would only have to prove that you were operating a vehicle in Kentucky with that number BAC.  That’s a Per Se prosecution.  But that’s not the only way to get a DUI in Kentucky.

Any Louisville DUI lawyer worth their salt will tell you that the Per Se prosecution is only one of several different types of DUI prosecutions in Kentucky.  The next DUI we’re going to talk about is an “Under the Influence” DUI.

If you have a BAC of UNDER .08, and you are operating a vehicle in Kentucky, it IS still possible for you to get a DUI.  Let’s say, for example, you have a low tolerance for alcohol.  You only have 2 beers.  Your BAC is only a .04, but you are “under the influence of alcohol,” and you operate a vehicle in Kentucky, you are guilty of DUI.

KRS 189A.010(1)(b) provides:

“(1) A person shall not operate or be in physical control of a motor vehicle anywhere in this state: (b) While under the influence of alcohol[.]”

As you can see, a prosecution under subsection (1)(b) doesn’t require the prosecution to prove a number at all.  If they can prove you are under the influence (using evidence of failed Standardized Field Sobriety Tests, and/or bloodshot, watery eyes, and/or the fact that you may be unsteady on your feet, and/or cognitive impairment evidenced by disorientation, and/or slurred speech, etc), you can be found Guilty of DUI.

Keep in mind that when I say “alcohol” and the KRS that we are reading today uses the word “alcohol” you should substitute the words “alcohol, drugs, medications or a combination thereof.”  Because the other sections of the KRS make sure that those things are covered.

The last DUI we’re going to talk about today is the “Strict Liability” DUI.  “Strict Liability” is a term that we use in the legal world for crimes that don’t require a mental state.  We’ve talked about this before, but let me refresh your memory.  Because some of you out there look like you haven’t been paying attention.

A lot of crimes require that you do some act (setting fire to, striking, raping, etc) with a mental state.  You would have to “Intentionally,” “Knowingly,” “Wantonly,” or “Recklessly” do said act.  For example, drug possession culpability is typically reserved for someone who “knowingly” possesses said drug.  If you borrow your degenerate brother’s car, and there’s a kilo of bathroom molly sewn into the passenger seat, but you don’t know about it, you are NOT Guilty of drug possession.

However, as a society we have determined that it would be against public policy to require the prosecution to prove a mental state for certain acts.  Speeding, for example, is a strict liability offense.  If you did it, we don’t care why you did it.  We don’t even care if you know that you were speeding.  We, as a society have decided that we are going to punish you regardless. 

The truth is that NONE of the DUIs we are talking about require a mental state.  So I’m not sure why some lawyers call the list of substances at the end of 189A “Strict Liability” DUIs.  But just for your knowledge, here they are:

(1) A person shall not operate or be in physical control of a motor vehicle anywhere in this state: (d) While the presence of a controlled substance listed in subsection (12) of this section is detected in the blood, as measured by a scientifically reliable test, or tests, taken within two (2) hours of cessation of operation or physical control of a motor vehicle; (12) The substances applicable to a prosecution under subsection (1)(d) of this section are:

(a) Any Schedule I controlled substance except marijuana (don’t get excited, you can still get a marijuana DUI in Kentucky);

(b) Alprazolam;

(c) Amphetamine;

(d) Buprenorphine;

(e) Butalbital;

(f) Carisoprodol;

(g) Cocaine;

(h) Diazepam;

(i) Hydrocodone;

(j) Meprobamate;

(k) Methadone;

(l) Methamphetamine;

(m) Oxycodone;

(n) Promethazine;

(o) Propoxyphene; and

(p) Zolpidem

It is a defense to one of these DUIs if you actually have a prescription for the medication listed AND you have been taking the medication as directed (it helps if the directions didn’t include the statement “do not drive while taking this medication”).

I hope this blog post left you a little more informed about the different types of DUIs.  Most importantly, what I would like for you to take away from this is one simple statement:  “If a person is under a .08, that does NOT mean they are legal to drive in Kentucky.”

So be safe out there.  Take a cab.  City Scoot it.  Or, if you have friends who are willing to refrain, get a designated driver.

Greg Simms

600 West Main Street

Suite 100

Louisville, KY 40202

502.618.4949

Free in Kentucky: What is the Difference Between Dismissal and Expun...

Free in Kentucky: What is the Difference Between Dismissal and Expun...: Today’s blog post is not going to be extremely interesting or chock full of jokes.  Sorry.  It will, however, be informative.  And usefu...