Free in Kentucky: It's Possible to Win a DUI Case Over a .08. Here'...

Free in Kentucky: It's Possible to Win a DUI Case Over a .08. Here'...: Recently (the last week of August, 2013), I tried a DUI case before a Jury in Hardin County.  My client was driving home from a restaurant,...

It's Possible to Win a DUI Case Over a .08. Here's How.

Recently (the last week of August, 2013), I tried a DUI case before a Jury in Hardin County.  My client was driving home from a restaurant, and after some Field Sobriety Tests (the police officer said she didn’t do very well), my client ended up blowing a .105 on the Intoxilyzer.  After an all day trial, the Jury found her Not Guilty of DUI.

It is possible to have your breath alcohol level measured by an Intoxilyzer, have a reading over a .08, and still be Not Guilty of Driving Under the Influence.  That’s a pretty strange thing to say.  And I realize some of you are giving me the “don’t try to lawyer me” face. 

I’d just like to remind you that your face WILL freeze like that one day if you don’t stop it.

Billboards, TV and Movies have brainwashed us into thinking things about the law that simply aren’t true.  If I had a nickel for every time someone told me their case should be thrown out because the police didn’t “read me my rights” I would have several nickels and a headache from yelling at Friday from Dragnet.

Friday came under the guise of wanting nothing but the facts, but ran through the U.S. like a tornado of misinformation.  The police don’t have to read you Miranda Rights unless you are in custody and they are going to interrogate you.

For another example: Raise your hand if you know it’s illegal to drink and drive in Kentucky.  Go ahead, put em up where I can see em.  All of you?*

Well, I’m sorry.  You’re all wrong.  That’s not the law in Kentucky.  “Don’t Drink and Drive” is a billboard slogan.  It is not the Law.  In this great Bluegrass State, it is very much legal to have a drink and drive if you are not “under the influence.”  That’s why the law is called Driving Under the Influence.  Not “drinking and driving.”  You can have a couple Maker's and Ale 8's out with friends -  if you aren’t over the .08 limit, and you’re not under the influence of alcohol, and drive home legally.

But what if the police get you to blow on a breathalyzer, and your BAC is over the “legal limit” of .08?  Well, then – you need a good DUI lawyer.  But you may not be Guilty of DUI.  It doesn’t look good.  But you may still have a good argument.

Let me explain why.  The argument is called “relation back” in the DUI defense circles.

In Kentucky, by law, a good deal of time has to pass between the time you’re driving a car and the moment you blow on an Intoxilyzer.  During that time, you’re probably going to be talking with a police officer (although, generally, I’d advise you not to), performing Field Sobriety Tests (although I would definitely advise you not to), taking a ride to the police station, and undergoing a 20 minute watch period before the Intoxilyzer exam.

Reasonably, at least 30 minutes are going to pass from the time you’re behind the wheel to the time you give a breath sample. 

There’s the key.

The Intoxilyzer measures your breath AFTER you’ve been driving.  That doesn’t mean you’re at that level of intoxication WHILE driving.

Let me give you an example.  Let’s say I’m with my buddies at BW3s, and we’re having wings and beers.  I drink like 4 of those big cold ones within a 20 minute period.  Let’s assume that 4 22oz beers will get me to .08, the legal limit.  But that doesn’t happen immediately.

Alcohol levels rise and fall.  After drinking, the BAC starts to go up, and once you reach your peak, the level starts to go down.  If you were to put it on a graph, it kinda looks like a bell curve.

Here’s a hypothetical scenario:  Let’s say I drink those beers at BW3s, and I drive home (I live about 5 minutes from B-dubs).  After I get home, I sit down in my favorite chair, and start watching a movie.  I’m ½ way through Ghost Dad before my BAC climbs to a .08 – I become under the influence, and then my BAC starts to fall.

Under those facts, I did NOT commit the crime of Driving Under the Influence of Alcohol.  Because at the time I was driving, I was not under the influence.  My BAC was only climbing.

That’s “relation back.”

And that’s why it’s possible to win a .105 DUI.

Keep in mind - I don't have to PROVE my client was sober.  It is the prosecution's job to prove she is under the influence.  And that burden is beyond any reasonable doubt.  In Kentucky, that 30 minute time span between a driver behind the wheel and an Intoxilyzer can be just the reasonable doubt we need.

For the record, I’m not telling you that drinking and driving is a good idea.  Generally, it’s a pretty bad idea.  When you’ve had a drink or two, call a cab.  It’s safer and you won’t have to deal with these expensive and stressful legal issues.

If you’d like more information on Kentucky DUI, call me – Louisville DUI attorney Greg Simms, at 502.473.6464

My door is always open.

*Sorry - I didn't see you in the back.  I didn't mean ALL of you.

Questions answered in this blog post:  Do I need a lawyer for a DUI 1st; How can you win a DUI over a .08 in Kentucky; who has the burden of proof in a DUI case; how can I find a good Elizabethtown DUI lawyer; is it illegal to have a drink and drive in Kentucky; what is the legal limit in Kentucky;  who was named in Louisville Magazine's Top Lawyers for the past 2 years in a row for DUI - Greg Simms was, that's who.

Free in Kentucky: Expungements in Kentucky: Get a Lawyer or Do it M...

Free in Kentucky: Expungements in Kentucky: Get a Lawyer or Do it M...: Can I do an expungement by myself? Absolutely.  You can represent yourself for an expungement.  You can also represent yourself in your...

Expungements in Kentucky: Get a Lawyer or Do it Myself?

Can I do an expungement by myself?

Absolutely.  You can represent yourself for an expungement.  You can also represent yourself in your own divorce.  And if you get caught committing a crime, you can represent yourself in those proceedings.  Also – if you break your leg, you can try to set it and make a splint for yourself.  But all of these things are terrible ideas.

There are internet sites out there that offer expungement advice, paperwork, etc.  Legal assistance websites are abundant.  Some sites offer to give you what you need to draft wills, and some will give you the tools to perform your own uncontested divorce.  The problem with a lot of these sites is this:  Those sites are run by some people in California.  Or Michigan.  Or wherever.  And inherently, that is not good for you, as a Kentuckian, trying to get legal work done.

The laws are different in different states.  That’s why each state has a different bar exam for lawyers.  And as a lawyer, you have to get licensed to practice in each state you do business in.

So don’t get forms from Michigan or wherever, and expect to use them in Kentucky.  In fact, don’t get forms in Kentucky and expect to use them in Kentucky.  Let me explain that little tidbit…

In Kentucky, you don’t do an expungement the same way in every County.  Each County has its own little nuances.  In Jefferson County, there is an entire office dedicated to expungements.  That’s very unusual for Kentucky.  Some District Court Judges want you to send expungement petitions to them.  Some don’t.  Some District Court Clerks will automatically give you a court date when you file a petition.  Some won’t – and some require that the County Attorney be given notice before a court date is set.

See where I’m going with this?

The lawyers who run that website in Michigan or New York City or wherever, don’t know the difference between filing an expungement petition in Louisville versus Elizabethtown, or Lexington, etc.

And that’s just one reason not to get online legal advice, or perform your own legal services.

There are many others.  Not the least of which is that lawyers go to law school.  And people who aren’t lawyers did not.  There’s a reason we go to school for 3 years.  If performing legal work were as simple as just filing in the blanks on a form we found online, there wouldn’t be lawyers.  There are snags.  Problems arise and we need to fix them.

For example, with expungements – what if you have a speeding ticket on your record?  How will that affect the charge you want to expunge?  What if the District Court Clerk says you need additional paperwork (like that criminal record check you didn’t know you were supposed to file simultaneously)?  What if you have a question about the time of filing?  Is it 60 days?  2 years?  5 years?  (the answer is “yes” to all three of those questions, based on different circumstances).

Getting a lawyer to do an expungement is not expensive.  It’s one of the cheapest legal services you will find.  It doesn’t take long to do, and it can be an extremely beneficial process.  After all, what if you apply for a new job and they do a criminal background check?  What if you were to get a new charge, and they hold the old conviction against you for the new offense?

My point is this:  Get a lawyer to do your expungement.  If you don’t get me, get someone else.

Nevermind – get me.  I’m really good at that stuff.

If you have any more questions about expungements, my door is always open.  Come see me or call me at 502.618.4949. 



Questions answered in this blog post:  Can I do an expungement by myself; what is an exponge espongement expongement expungment; how do I get something expunged in Kentucky; can I get a free expungment online form; do I need a lawyer for an expungement in Kentucky?

Free in Kentucky: How Accurate are Field Sobriety Tests???

Free in Kentucky: How Accurate are Field Sobriety Tests???: You would think that would be an easy question to answer, but it isn't. The Standardized Field Sobriety Tests (sometimes referred t...

How Accurate are Field Sobriety Tests???

Posted by Attorney Greg Simms, 502.618.4949

You would think that would be an easy question to answer, but it isn't.

The Standardized Field Sobriety Tests (sometimes referred to as "SFSTs" or "FSTs") that are the staples of Law Enforcement sobriety testing today, include the Horizontal Gaze Nystagmus (HGN), the Walk and Turn (W&T) and the One Leg Stand (OLS) tests.

The tests were conceived by the Southern California Research Institute (SCRI) around about 1975.  I presume these people were academics, and not actual doctors.  And for the purpose of this blog we will assume that they were not funded by an agency or company with any outside interests - that the people at the SCRI were genuinely unbiased.

The HGN is the test where a police officer puts a finger in front of your face, and moves it around.  They tell you to follow their finger with your eyes, and the officer looks for involuntary jerking of the eyes, called "nystagmus."  This word is pronounced most commonly as "nis-TAG-muss" and less commonly as "na-STY-muss."

The walk and turn test and one leg stand tests are pretty self explanatory.  If you can't figure them out, raise your hand and Tommy will come along and hit you in the head with a tack hammer...

Anyway, when the SCRI developed the tests in 1975, they gave a percentage of accuracy for each test in determining the impairment of a subject test taker.  Those percentages are as follows:

-The HGN alone, was 77% accurate

-The W&T alone, was 68% accurate

-The OLS alone, was 65% accurate

and the combination of the HGN and W&T yielded an accuracy of 80%.  If you have any questions about math, feel free to text my friend, Jeremie Wade.  He loves that.

These " percentages of accuracy" are legitimate if, and only if, the tests are performed correctly by the police officer, and only if the test results are interpreted correctly by the police officer.

Let me expound on that just a little bit.  There are a lot of details involved in giving these tests.  Specificities that the officer has to remember.  For example, when performing the HGN test, the officer's finger should be between 12-15 inches in front of the subject's face.  A lot of officers have forgotten this information years after learning it, and some don't remember the numbers correctly (for some reason a lot of officers think it's 12-18 inches.  

In addition, and maybe more importantly, the guidelines for the tests state specifically that the officer is always supposed to turn the subject test taker AWAY from any flashing lights (like the cruiser's emergency lights).  This makes sense because the officer is looking for "jumping" in the eyes, and flashing lights can cause your eyes to jump, or jerk.  Surprisingly, I have found that an extremely high percentage of police officers do NOT turn subjects away from the flashing lights - like 50% or so.

The problem with doing the tests wrong, is that - obviously - you can get bad results.  Even the guidelines state specifically that "if any one of the standardized field sobriety test elements are changed, the validity is compromised."  The book seems to think that's pretty important, because in the book, that writing is in all caps, and bold letters.

There are a LOT more details associated with performing the HGN test - like the seconds it takes to do a full sweep, the method for determining the onset of nystagmus prior to 45 degrees, and the specific time of the hold at maximum deviation.  And we haven't even started on the W&T and OLS, which are also frequently performed incorrectly.

So the answer to the original question is - we kind of don't know.  We know how accurate the SCRI says the tests are supposed to be if they are done correctly.  But we also know that a lot of police officers don't do them correctly - and that the guidelines say that compromises the validity of the tests.

So... my bad.  I hate to give you a question like that, and then not answer the question.  That must be frustrating for you.  If it makes you feel better, I empathize with you.

If you have any more questions on field sobriety tests, let me know.  Feel free to contact me, Greg Simms, at 502.618.4949.  Or drop by.  My door is always open.

Questions Answered in this Blog Post:  How accurate are Field Sobriety Tests FSTs SFSTs; what is the accuracy rate of HGN W&T OLS; accuracy for Horizontal Gaze Nystagmus, Walk & Turn and One Leg Stand tests; how can I find a good DUI lawyer in Louisville Kentucky; DUI lawyers for Elizabethtown Kentucky; Hokum Field Sobriety tests?

The Police Have Been Doing Roadblocks Wrong.

So, I got a published case from the Court of Appeals reversing a conviction against one of my clients this week.  That’s pretty rad.

To put this in perspective – if you get convicted at a jury trial, you have one appeal “as a matter of right.”  That means you have a constitutional right to have a higher court look at the case and determine whether something was done wrong.  And if they think the original judge made a mistake, it’s possible for that higher court to reverse your conviction.

If that higher court doesn’t think the original judge made a mistake, you might be out of luck.  You don’t have any more appeals as a matter of right.  However, that isn’t exactly the end of the line.  You can petition the next highest court for “discretionary review.”  That means you can ask the next highest court to take a look at your case, but they aren’t obligated to do so.  They can basically tell you to go fly a kite.  In fact, most of the time they do.  And they don’t even have to give you a reason why they turned you down.

If you started out in District Court, your appeal as a matter of right would be to the Circuit Court in that county, and then your motion for discretionary review would be made to the Kentucky Court of Appeals.

I don’t know what the percentage of acceptance for motions for discretionary review is – I want to say less than 20% but I’m just guessing.  But I can tell you that after the Court of Appeals accepts a case and gets out a ruling, less than 15% of those that are taken up become published cases.  So it is very rare for an attorney to get published caselaw.  Some lawyers go their whole careers without getting anything published by the Court of Appeals. 

In the case I’m talking about today, we started out in District Court – it was a DUI case stemming from a police roadblock.  I made the argument that the roadblock wasn’t done correctly (a violation of my client’s Constitutional rights), and the District Court disagreed.  We tried the case before a jury.  After a short trial* my client got convicted of DUI, second offense, open container, and the failure to wear a seatbelt.

My point on the roadblock issue is this:  The police didn’t have a “pre-approved start and stop time” for the roadblock, and that’s too much discretion for a police officer to have.  This argument was kind of a new twist on some existing law.  The law on roadblocks, boiled down, is this:  Instead of having individualized suspicion to pull someone over, police can use roadblocks if, and only if, they follow some guidelines in order to limit the discretion of the officers implementing the roadblock. 

There’s a list of guidelines for the police to follow, but the law in Kentucky has been that the failure to follow some of those guidelines won’t necessarily make the roadblock unconstitutional.  The guidelines are supposed to be used as a kind of balancing test.  But I was asking the Court of Appeals to recognize that some of those guidelines are more important than others, and that the failure to adhere to some of the important ones can be fatal in some roadblock cases.  To make the rubber hit the road, in the case we’re talking about today, I’ll give you 2 different examples of mistakes the police made.  1) They weren’t wearing the approved and extremely fashionable safety vests that police are supposed to wear during a roadblock.  2) The start and stop time of the roadblock was not pre-approved by a supervisor.

Nobody really gives a damn about whether the police wear their safety vests (I mean, police should, because it can be dangerous out there – but, still).  The failure to wear them doesn’t give the police any more discretion, or power.  However, if you let police determine their own start and stop times for the roadblock, they can look down the line and see some white people coming – and decide that the roadblock doesn’t start just yet.  As soon as the black guy rolls up, the roadblock starts.

The lack of a pre-approved start and stop time gives the police more power – which can be dangerous.  That can lead to the exercise of their own personal bias or prejudices.  There is “grave danger’ inherent in allowing law enforcement officers to exercise ‘standardless’ and ‘unconstrained’ discretion in conducting traffic stops.” Cox v. Commonwealth, cite to come later, citing Prouse, 440 U.S. at 661-662, 99 S. Ct. at 1400-01.**

Fortunately for me and for my client, the Court of Appeals agreed with me.

This case, Cox v. Commonwealth, stands for the proposition that some roadblock guidelines are more important than others – and that the lack of a pre-approved start and stop time is one of those very important factors. 

Part of the cool thing about this case is that it doesn’t just apply to my client.  It applies to all roadblock cases in Kentucky.  That means that of all the roadblock DUIs in Kentucky right now, an extremely large percentage of those cases can now be dismissed because the police haven’t been doing what they were supposed to, in order to protect the Constitutional rights of the public.  And that’s pretty awesome.

For all my lawyer friends who want to cite the case in an existing roadblock case, you can read the entire opinion at: http://opinions.kycourts.net/coa/2012-CA-000957.pdf

If you have any questions about this case, or Kentucky Roadblock DUI law, or anything else, you can call me at 502.618.4949.  My door is always open.

*That’s an inside joke for Jon Spalding, who will probably never read this.  So I’m not sure why I included it.

** Yeah, that felt good.


Questions Answered in this Blog Post:  How can I find a good Roadblock DUI lawyer in Kentucky; how to defend a roadblock DUI; DUI lawyer in Elizabethtown Ky; Louisville DUI lawyer; what does the Cox v. Commonwealth roadblock DUI case mean for police procedures?