Free in Kentucky: Brief on Unconstitutionality of Kentucky Implied C...

Free in Kentucky: Brief on Unconstitutionality of Kentucky Implied C...:        Today's post is primarily for my criminal defense attorney friends.  Others may find it a bit technical and nerdy.  But if you...

Brief on Unconstitutionality of Kentucky Implied Consent Statute

       Today's post is primarily for my criminal defense attorney friends.  Others may find it a bit technical and nerdy.  But if you like that kind of stuff, hey - knock yourself out.  Happy reading.

       One problem I've found with lawyers is that too often, we get caught in the weeds.  Everyone is caught up in the details of how to apply a specific case to a set of circumstances, or how culpable a client's conduct is by the wording of the current statute.  What we don't do often enough - is back up.  Take it all in.  We don't stop to think "Why is this law any good?  Why are we following it?"

        I'd like you to keep that sort of mentality as we discuss the Kentucky Implied Consent Statute.  You can refresh yourself on implied consent at KRS 189A.103-107.  And again, let's back up.  Take it all in.  The reason states have these statutes is to get around the 4th Amendment.  It's an attempt to make a police officer's job easier.  I don't say that in a grand conspiracy theory way - I just mean that states have decided that it would be a good thing to give motorists an incentive to submit to blood, breath or urine testing.  And so, they've built consent right into the law.  The way states justify forcing consent on people is this:  Driving is a privilege.  Not a right.  So if you don't want to consent, you don't have to drive.

       There are a couple problems with this sort of logic.  When does driving become a right?  The answer is, it kind of already is.  There is a property right recognized in drivers licensing, after someone passes the test.  In fact, you get a little card that you have to pay money for.  And you have a property right in that card.  The right to drive is recognized by every court in the United States.  That's why they don't take your license without a hearing.  They recognize the due process requirement that comes with taking a right - not a privilege.

        Whether you believe driving on the roadway is a "Right" or not, the DUI statute still infringes on driving rights.   DUI statute in Kentucky specifically states that you can be charged with DUI anywhere in the state.  That means that you don't have to be on a Kentucky roadway.  You can be on private property.  The truth is you can be charged with DUI driving a farm truck on your own farm.

       But Greg!?  You don't have to have a license to drive a farm truck on your own property, do you!?  

       I like where your head's at.  And you're correct.  You don't have to have a license to drive on your own property.  So driving, in that case, is a right that comes with using your own property - the farm truck.  Driving in that instance is certainly a right.  Not a privilege.  

       How can the implied consent statute force consent on people based on the concept that driving is a privilege, when the DUI statute covers driving that is a right, and not a privilege!? 

        Another good question.  And nobody has really challenged the implied consent statute on these grounds.  Recently, however, the United States Supreme Court gave us defense lawyers some good fodder for defending blood tests which were taken on the basis of implied consent.  That's where our conversation is going today.  I've started filing these motions in every DUI case I have.  Today I'm going to provide you with a brief that you can literally copy and paste into your own motion to declare the Kentucky Implied Consent statute to be Unconstitutional.  Print out a copy of the Duncan case to attach to your brief.  And remember to serve a copy on our Attorney General, so that they can have a chance to respond.  Here it is:

       

      The Supremacy Clause in Article Six, Clause 2 of the US Constitution establishes the U.S. Constitution, federal statutes, and U.S. treaties as "the supreme law of the land". It provides that these are the highest form of law in the U.S. legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either the state constitution or state law  of any state.  The text of the Supremacy Clause is as follows: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

            Thus, when any state law conflicts with the United States Constitution, the state law must fail.

            The problem with the Kentucky implied consent statute is that it requires drivers to submit to a blood draw, without requiring the police to obtain a warrant.  The Kentucky law conflicts with and attempts to circumvent the 4^th Amendment of the US Constitution.

            Recently, the issue of implied consent for blood draw has come before the United States Supreme Court.  In Missouri v. McNeely, 133 S.Ct. 1552 (2013), the state sought to uphold the implied consent requirement (similar to Kentucky’s) by arguing that a warrant was not necessary in the case of a DUI blood draw, because the officer has probable cause and exigent circumstances.  The state argued that the natural metabolism and expiration of alcohol presented an exigent circumstance which justified an invasive body search – a blood draw - without a warrant.  The Court in McNeely said:

       The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances. Id.

            The Court in McNeely refused to allow an Implied Consent statute (nearly identical to the Kentucky statute) justify the warrantless search.  The Kentucky Court of Appeals has addressed the McNeely case in Duncan v. Commonwealth, a copy of which is attached hereto.  The Commonwealth has filed a motion for Discretionary review to the Kentucky Supreme Court in Duncan and the case is not yet final.

            In Duncan, the officer then asked Duncan to submit to a blood test, which Duncan refused. He did agree, however, to submit to a breathalyzer test at the station. The officer refused, and Duncan was arrested. Id.  Duncan argued that the officer’s request that he submit to a blood test rather than a breathalyzer or urine test was in error. The Kentucky Court of Appeals agreed.

            The question presented in Duncan was “Whether the law of Kentucky (the implied consent statute) allows an arresting officer to choose whether a suspect be offered a blood test rather than a breathalyzer test is a matter of law.” (clarification added).  Id.  The Kentucky Court of Appeals held that it does not and reversed and remanded the case.

            If the McNeely and Duncan cases mean anything at all, they must, at the very least, stand for the proposition that the mere fact that one drives on the road in Kentucky does NOT mean that they consent to a blood draw.  And therefore, the Implied Consent statute in Kentucky must be invalid.  In order to go inside someone’s body for a search, the police must have a warrant or actual verbal consent.  The protection of the 4^th Amendment of the US Constitution cannot be circumvented by state statute.

       WHEREFORE, the Defendant respectfully demands that this honorable Court declare the Kentucky Implied Consent Statute to be Unconstitutional.


If you have any more questions, don't hesitate to call me, Greg Simms, at 502-618-4949.  


Questions answered in this blog post: What is Kentucky Implied Consent law; How does the 4th Amendment affect Kentucky Implied Consent law for DUI; how do I find a Louisville DUI lawyer; how do I find a good Elizabethtown DUI lawyer; who was named one of Louisville's best DUI lawyers according to Louisville Magazine Top Lawyers (this blog doesn't actually answer that - I just like to brag).

Free in Kentucky: Expungement: Why You Need One

Free in Kentucky: Expungement: Why You Need One: Expungements are a beautiful thing. There aren’t many of us who didn’t engage in some sort of youthful indiscretion in high school, col...

Expungement: Why You Need One

Expungements are a beautiful thing.

There aren’t many of us who didn’t engage in some sort of youthful indiscretion in high school, college, or a couple years ago at Churchill.  Most of us share that common thread.  But we’ve moved on.  Grown up.  Made the conscious decision to walk the straight and narrow.  We’re going to be better.

Fortunately for you and for me, the law offers us a little shake to the etch-a-sketch of our criminal histories.  An expungement will allow us to wipe that slate clean, as if those youthful indiscretions never ever happened.

Why do I need an expungement if I got a Dismissal?  Good question and I’m glad you asked it.  Dismissals mean that someone doesn’t have any further punishment under the law, and does not stand convicted of a crime.  However, that does NOT mean that the criminal history goes away.  It is not erased.

Let’s say, for example, you try to get a new job.  Some places ask if you’ve been convicted of a felony or misdemeanor crime.  Other places specifically ask whether you have been CHARGED with a crime.  If you have a case that was dismissed, but not expunged, that kind of place will be able to find out that you were charged with a crime years ago, even though it was dismissed.  If you get an expungement done, they will not find any such thing on your record.

If you want something “erased” in Kentucky, expungement is the only way to go.  It is a cheap and easy process, and you should call me today at 502-618-4949 to make sure that you qualify for the process.

Recently, there have been some changes to the procedure of expungement – there is another step or 2 involved, and it takes another couple weeks to complete.  If you’d like to know the details on that, feel free to give me a call at the above number.

Have a phenomenal week.

Free in Kentucky: RIOT!!! (that's just a title, not a command or sug...

Free in Kentucky: RIOT!!! (that's just a title, not a command or sug...: Crank up the Ramones, it’s gonna get feisty in here.  Recently, and at such time as I should have addressed the issue before now but I ...

RIOT!!! (that's just a title, not a command or suggestion)

Crank up the Ramones, it’s gonna get feisty in here. 

Recently, and at such time as I should have addressed the issue before now but I had a baby so get off my back, there was a riot.  I call it that because I’m using a term of the common vernacular.  News agencies called it a “riot” and so that’s what I’m calling it.  At least for now, before we get a legitimate legal definition of the conduct.  On the night of March 22, 2014 a large group of individuals – who appear in videos to be mostly if not all black teenagers – took to the streets of downtown Louisville.  Videos have emerged of the incident.  From at least one gas station, we can see (a slightly more polite?) looting was taking place.  A video of a downtown business shows kids jumping on cars in a parking lot.  There are reports of a rowdy incident at White Castle, and some spotty violence (a 13 year old girl was assaulted and robbed, as was a 61 year old man).  A total of about 17 incidents were reported.

I don’t know if the conduct was racially motivated or not.  People seem to be assuming it was.  At this point I’m not sure if the victims were white individuals or if they were minorities.  The news agencies I’ve seen aren’t reporting that information.

One person out of the approximate 200 was arrested.

In other, more timely news, the University of Kentucky won their final 4 game against Wisconsin.  So they’ll be playing in the National Championship game tonight.  The forecast in Lexington calls for a 105% chance of flaming couches.  Whether they win or lose, people in Lexington will take to the streets.  The riot will just be a little “nicer” if they win.

I have several close friends in the Lexington area and at this point I would like to offer them some free legal advice because I am such a sweetheart. 

Hey Ho Let’s Go talk about riots and how much trouble you can get in for engaging in such tomfoolery.

According to the KRS, "Riot" means a public disturbance involving an assemblage of five (5) or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs law enforcement or other government function. 

By the KRS definition, the conduct in Louisville from the March “riot” would certainly qualify as Riot.  And depending on whether the tumultuous conduct in Lexington tonight causes property damage (it will) there may be an actual Riot in Lexington tonight (there will).  With that in mind, let’s take a look at how much prison time Riot carries.

(1) A person is guilty of riot in the first degree when:

(a) He knowingly participates in a riot; and

(b) In the course of and as a result of such riot a person other than one (1) of the participants suffers physical injury or substantial property damage occurs.

(2) Riot in the first degree is a Class D felony.

In this beautiful Bluegrass State, a Class D felony means that the perpetrator is facing 1-5 years in prison. 

So try to keep it safe out there.  Be careful and wear a condom.

Wait…that’s probably not going to help you in the riot.

Anyway – happy Blitzkrieg Bopping.

Love,

Greg Simms

This is Why the US War On Drugs Does Not Work

Accept the Fact that Prohibition Doesn’t Work

This is step one.  Step three is where everyone is happy.  And if you don’t know what step two is, clearly you don’t understand step one.

            Step one is people accept the fact that prohibition does not work.  More specifically, laws which prohibit people from consuming intoxicating substances are ineffective.  And it’s not just here.  Not just now.  Prohibition doesn’t work anywhere.  And it has never worked.

           

            It is now more than 40 years after Richard Nixon declared the war on drugs in 1971 and we have spent more than $1 trillion on prohibition since then. What do we have to show for it?

            If you’re an economist, all you need to know is this: In 1990, cocaine was about $275 per gram.  Today it’s less than $200 per gram.  Yes, the street price of cocaine in the United States has actually DECREASED. (UNODC.org)

            If that doesn’t convince you that prohibition is not working in the US, take our prison population for an example.  The U.S. has the largest prison population in the world, with about 2.3 million behind bars. More than half a million of those people are incarcerated for a drug law violation. (from CNN 12-7-12)

           

            Do you think we are the first?  Do you think that the United States government decided that drugs are bad and that we’re the first civilization to try to prohibit people from using?  Let me give you a little snapshot, here:

            We, as a race of human beings figured out more than 6,000 years ago that we could ferment beverages.  And when we drank those fermented beverages, we caught a buzz.  At that point, we decided – as a species – that catching a buzz was a good thing and we were never going to stop.  Along the way, humans found and created new ways to catch said buzz, but we haven’t stopped.  And we aren’t going to.

            The attempts to prohibit people from taking intoxicating substances date back to the 7^th century – under Islamic law.  Although Islamic law (according to the wikipedia) is often interpreted as prohibiting all intoxicants - not only alcohol - it is interesting that the practice of smoking hashish has continued throughout the history of Islam, against varying degrees of resistance.  BT-dubs, the prohibition of cannabis isn't new, either.  Fields of cannabis were burned in Egypt in the 11^th and 12^th centuries. 

            So, then…cannabis is gone, right?

            If we’ve spent $1Trillion on fighting drugs – there are at least LESS drugs, right?

            Despite tough anti-drug laws, surveys show the U.S. has the highest level of illegal drug use in the world.  The World Health Organization's survey of legal and illegal drug use in 17 countries, including the Netherlands and other countries with less stringent drug laws, shows Americans report the highest level of cocaine and marijuana use.  For example, Americans were four times more likely to report using cocaine in their lifetime than the next closest country, New Zealand (16% vs. 4%).  Marijuana use was more widely reported worldwide, and the U.S. also had the highest rate of use at 42.4% compared with 41.9% of New Zealanders. (CBS News 7-1-08)

            Our prisons in the US are tough.  We have stellar precautionary measures, steel, timing locks, guards, bullet proof glass, guards, strip searches, and more guards.  Don’t take my word for it.  Go to a prison and try to visit someone.  See for yourself.

            And guess what?  There are drugs in prison.  Not just any drugs.  Like, ALL drugs.  I have seen proof with my own eyes.  I have represented clients who have successfully snuck drugs into prison.  I have represented clients who tested dirty for drugs because they used while in prison. 

            The truth is that prison should teach you everything you need to know about prohibition.  The prisons have drugs.  You could spend $20Trillion creating a complete police state in every city in America.  You could turn the country in to a prison.  And drugs would still be here. 

            They are in the safest, most secure places in America. They will never go away. 

            Accept it in your heart of hearts.  Know that prohibition is ineffective.  Know for a fact that there is nothing we can do, no law we can enact, that will make drugs disappear.  Know it.  That’s step one.

            And if you truly accept it, you will know what step two is.