Free in Kentucky: What exactly IS an expungement?

Free in Kentucky: What exactly IS an expungement?: Apparently I should have made this post before the “How to do an Expungement from Beginning to End” post.  My b. An expungement is when...

What exactly IS an expungement?

Apparently I should have made this post before the “How to do an Expungement from Beginning to End” post.  My b.

An expungement is when a Judge orders that your criminal history be erased.  Specifically, it means that the Kentucky State Police, the Administrative office of the Courts, and the Court clerk are ordered to destroy all record of a particular charge or piece of your criminal history.  So if someone tries to look up your record, anything that has been expunged, will not be found.

What gets erased: It’s important to note that only the charges that are ordered to be expunged get erased.  For example, let’s say you had a Marion County DUI conviction in 2001, and a Jefferson County Assault conviction in 2009.

If you petition the Court in Jefferson County for an expungement, the Court may grant your motion, but that doesn’t mean your record is CLEAN.  You would still have a DUI from 2001 on your record, and you would need to do a separate (and subsequent – more on that in a bit) petition for expungement in Marion County. 

The Marion County expungement would have to be done second because your record needs to be clean since the conviction you want to get expunged.  If you tried to do the Marion County case first, a Judge would say, “No – you’ve had a new assault charge since then.”  So they have to be done in order, and you have to work backwards.

It’s also important to know that a DISMISSAL does not mean EXPUNGEMENT.  If you have a good lawyer who argues your case and gets some charge dismissed, it is still on your record.  Your record would show that you were charged with that offense, and that the offense was later dismissed.  But it would still exist as a part of your record.  Dismissed does not equal erased.  Expunged equals erased.

Don’t do an expungement yourself.  It gets complicated.  Call me, Greg Simms at 502-618-4949 for a free consultation.  Expungements are relatively cheap to have done, and they can be done quickly.  So don’t hesitate to call.  My door is always open.

Free in Kentucky: How to do an Expungement from Beginning to End (in...

Free in Kentucky: How to do an Expungement from Beginning to End (in...: Today I’m going to go through the actual steps to file an expungement.  If one were so inclined to take on the job of doing an expungement ...

How to do an Expungement from Beginning to End (including everything you need to know about Kentucky Expungement Forms)

Today I’m going to go through the actual steps to file an expungement.  If one were so inclined to take on the job of doing an expungement -- these are the steps to get it done.

I approach this blog post like a rabid dog – this is only for people who are hell bent on doing an expungement by themselves.  As a general rule, you should NOT do an expungement by yourself.  You should always get a lawyer.

And as a point of digression I’ve come up with a quick test to see if you should get a lawyer.  Ask yourself these questions:  Is the job that I want done possibly going to require a court appearance?  Is it going to have legal consequenses?   If you answered “yes” or "I don't know" to either of the aforementioned questions, you should get a lawyer.  Specifically for expungements, the answer to BOTH of those questions would be “yes.”  Also, expungements are pretty cheap and they can be done quickly.  So there’s no reason not to get a lawyer.

That being said…let’s start our journey into the expungement process.

The steps, generally are 1) background check; 2) research the law; 3) get the forms; and 4) submit/schedule.

The journey begins with a trip to the AOC website.  The AOC stands for administrative office of the courts.  Not that you’ll need to know that.  I’m just showing off.

This is the website to start your expungement:

http://courts.ky.gov/aoc/criminalrecordreports/Pages/default.aspx

It says at some point that a background check costs $20, but it’s actually going to cost you $40.  Once you order the criminal history, it is sent to Kentucky State Police.  KSP will take their sweet time (expect 2-4 weeks) and then the AOC will send you a message saying your criminal history is ready.

The criminal history that you receive will have the word “yes” or “no” written to the side of each charge.  This refers to whether the Kentucky State Police agree that the charge is expungeable.  It is important to note that the fact that KSP may disagree, does not make them CORRECT.  1) They ain’t the boss of you.  2) Expungement law has some room for interpretation, and different judges read the law differently.  3) The law changes.  It changes all the time.  Literally every year, laws change.  And over the last few years, expungement law has changed drastically.

So before you go to the AOC website for expungement petitions, I would bone up on the law if I was you.  You’re going to need to know whether or not you can actually petition for an expungement based on your criminal history and the current law.  After all, you don’t want to pay a $100 petition filing fee if your petition is destined to be denied.

 

Once you’ve done your legal research, visit http://courts.ky.gov/resources/legalforms/Pages/default.aspx and find the petition that you need.

You may need a petition for a conviction or you may need a petition for a dismissal or acquittal, or you may need both.  Without looking at your record, I wouldn’t be able to tell you which form you need.  But you can check those forms out at

http://courts.ky.gov/resources/legalforms/LegalForms/4962.pdf, 

and http://courts.ky.gov/resources/legalforms/LegalForms/4972.pdf. 

By the way, those aren’t the only forms you’ll need.  You want to go ahead and fill out (not completely) a proposed order for the judge to sign, granting your expungement.  But that’s a restricted form for Court personnel only – so you’ll want to get that from the courthouse.

Once you’ve researched the law and filled out your forms, it’s time to submit/schedule.  It gets a little complicated at this point because every county is different.  In some counties, you submit the form without scheduling a court date.  The county attorney then reviews the forms to see if they agree, and if so, you get your expungement.  If not, they schedule a court date.  In other counties, you schedule the court date immediately.  Sometimes you serve a copy on the county attorney.  Sometimes you don’t.  You should check the local rules for your county to make sure you’re going through all court procedure correctly.  Find your county and the applicable rules here: http://courts.ky.gov/Pages/localrules.aspx.

Don't forget to submit your criminal history report WITH the petition and the proposed Order.

Also, you’re going to need to know what fee to pay the clerk.  It may be $100 or it may be FREE.99.  It depends on which type of Petition you intend to file.  The clerk should be able to help you out with that.  And be very nice to the clerks!  They have a pretty stressful job and they can give you a great deal of assistance – so again, be nice to them.

If you end up in front of a judge arguing your own expungement case, I wish you luck and advise you to be respectful.  Say “Yes, your honor” or “No, your honor.”  If it gets heated, just cry.  That helps.

In conclusion, don’t do any of this stuff yourself.

Call a lawyer because getting an expungement done is complicated.  Hiring a lawyer for an expungement, on the other hand, is cheap and easy.  Call me, Greg Simms, at 502.618.4949 and I will gladly work on your expungement case so you don’t have to.

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

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