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...

DUI 3: What is the Punishment for a DUI 3rd Offense in Kentucky?

This blog post is a continuation of our analysis of the different levels of punishment regarding the “enhanceable offense” of DUI in Kentucky.  After examining DUI 1^st and 2^nd, today we’re going to talk about the punishment associated with a DUI 3^rd.  If you still have any questions or concerns about the punishments associated with DUI 1^st or 2^nd, 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.  And yes, I'm very comfortable with my job and my station in life.

If you are charged with a DUI, call a lawyer.  For example, me.

If you plead guilty, or are found guilty, of a DUI 3^rd in Kentucky, here’s what you can expect:

For a third offense within a five (5) year period, be fined not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) and shall be imprisoned in the county jail for not less than thirty (30) days nor more than twelve (12) months and may, in addition to fine and imprisonment, be sentenced to community labor for not less than ten (10) days nor more than twelve (12) months. If any of the aggravating circumstances listed in subsection (11) of this section are present, the mandatory minimum term of imprisonment shall be sixty (60) days, which term shall not be suspended, probated, conditionally discharged, or subject to any other form of early release[.]

In addition to the above, if you plead guilty to a DUI 3^rd in Kentucky, any decent Louisville DUI lawyer will tell you that you are facing a DUI service fee, a license suspension of 24 – 36 months, and alcohol/drug education classes.

You may have noticed that the statute above requires a mandatory minimum one month in jail, and can be up to one full year in the county clink.  Notice that the one month minimum jail time is doubled to Sixty days of incarceration if an “aggravating circumstance” is present.  This is what lawyers mean when they 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.”  If you were driving your car down the wrong way of a limited access highway, you would be facing a mandatory minimum 60 days in jail.  However, if you refused to submit to a blood, breath or urine test (other than a PBT) AND you were driving the wrong way down a limited access highway, you would NOT be facing a mandatory minimum 120 days in jail.  There would only be a mandatory minimum 60 days jail time associated with the offense.

That about does it for our discussion of the punishments associated with DUI 1^st, 2^nd, and 3^rd.  Next time we’ll be talking about the punishment associated with a DUI 4^th, which is the most serious of DUI offenses.

If you have been charged with a DUI 3^rd Offense in Louisville, Lexington, Elizabethtown, Frankfort, or the surrounding areas, call 502.618.4949 and speak with a Louisville DUI lawyer at Simms & Reed, PLLC.  The initial consultation is free.

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


Also see http://www.duilawfirmlouisville.com/


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

Free in Kentucky: What is the Punishment for a DUI, Second Offense i...

Free in Kentucky: What is the Punishment for a DUI, Second Offense i...: Hello, all.  Thanks for tuning in. If my blog were a game show, and I were some creepy Richard Dawson-like host, giving sweet lip acti...

What is the Punishment for a DUI, Second Offense in Kentucky?

Hello, all.  Thanks for tuning in.

If my blog were a game show, and I were some creepy Richard Dawson-like host, giving sweet lip action to all the contestants, I would say that we have now entered “The Bonus Round!”*  We’re talking about the second round of DUI charge, “the offense after the offense,” or “DUI 2E” (pronounced “Dooey-Tooey”) for all of you who like to make fun little nicknames or pronunciations out of phrases.

Today we’re going to talk about DUI, Second Offense (hereinafter, “DUI 2^nd,” or “DUI2,” depending on whether I’m paying attention to the consistency of the language I use).  Specifically, we’ll be talking about the penalty for pleading guilty to a DUI 2^nd, or being found guilty of the same.

Last week we discussed the penalty for a DUI 1^st, and about how DUI is an “enhanceable offence.”  That means that, within a 5 year period, the second DUI is worse than the first, the third is worse than the second, and the fourth is as bad as they come – a Class D felony.  This week’s blog post is a continuation of the analysis of punishment as we go up that range of punishment.

Here is the punishment for DUI 2^nd, as found in KRS 189A.010: 

For the second offense within a five (5) year period, be fined not less than three hundred fifty dollars ($350) nor more than five hundred dollars ($500) and shall be imprisoned in the county jail for not less than seven (7) days nor more than six (6) months and, in addition to fine and imprisonment, may be sentenced to community labor for not less than ten (10) days nor more than six (6) months. If any of the aggravating circumstances listed in subsection (11) of this section are present, the mandatory minimum term of imprisonment shall be fourteen (14) days, which term shall not be suspended, probated, conditionally discharged, or subject to any other form of early release[.]

In addition to the above, if you plead guilty to a DUI 2^nd in Kentucky, any decent Louisville DUI lawyer will tell you that you are facing a DUI service fee, a license suspension of one year to eighteen months, and alcohol/drug education classes.

You may have noticed that the statute above requires a mandatory minimum 7 days.  That’s a WEEK, brother.  Now is when DUI penalties are really starting to get stiff.  Not many regular citizens can stand the idea of being in jail for an entire week.  Notice that the 7 day minimum is doubled to FOURTEEN days of incarceration if an “aggravating circumstance” is present.  This is what lawyers mean when they 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.”  If you had an accident that caused death or serious physical injury, you would be facing a mandatory minimum 14 days in jail.  If you had a BAC over a .15 AND you caused an accident that caused death or serious physical injury, you would not be facing a mandatory minimum 24 days in jail. 

A DUI 2nd in Kentucky is pretty serious, and can be extremely complicated.  That’s why it is important to contact a Louisville DUI lawyer as soon as you can after being charged with a DUI.

If you have been charged with a DUI 2^nd Offense in Louisville, Lexington, Elizabethtown, Frankfort, or the surrounding areas, call 502.618.4949 and speak with a Louisville DUI lawyer at Simms & Reed, PLLC.  The initial consultation is free.

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

* http://www.youtube.com/watch?v=YXf7UHgIauk, http://www.youtube.com/watch?v=NGpvxicYDFI


Also, see http://www.duilawfirmlouisville.com/

Questions answered in this blog post: What is the penalty for a DUI second offense in Kentucky; what is the jail time for a DUI second in Kentucky; what is an aggravating circumstance for a DUI in Kentucky; how do I find a good Louisville DUI lawyer; how do I find a good Elizabethtown DUI lawyer; DUI lawyer Louisville, Ky.; what is the contact information for Greg Simms Louisville DUI lawyer; what is mandatory minimum jail time for DUI second; what is the legal limit for a DUI in Kentucky; what is the BAC aggravator for a DUI?

Free in Kentucky: What is the Punishment for a DUI 1st in Kentucky?

Free in Kentucky: What is the Punishment for a DUI 1st in Kentucky?: Several people have asked me in the past if Kentucky has a “first DUI dismissal” rule, or something of the sort, where a person gets speci...

What is the Punishment for a DUI 1st in Kentucky?

Several people have asked me in the past if Kentucky has a “first DUI dismissal” rule, or something of the sort, where a person gets special leniency because they are charged with a first time DUI.  They have heard this mythical One-DUI-Free Rule from a buddy, or a family member.  And they want to ride that unicorn right out of the courtroom to freedom, sweet freedom.

It’s not true.  There is no such rule, statute, caselaw, or standard operating procedure.  Sorry.  But that doesn’t mean that a good Louisville DUI lawyer can’t help with your case, and possibly get it dismissed.  If you are charged with a DUI, call a lawyer.

Today we’ll talk about the possible punishments associated with DUI (the statute is found in KRS 189A).    Specifically, we’ll talk about DUI 1^st, and the idea of an “enhanceable offense.”

DUI is one of the most complicated areas of law.  Hands down, it is the most complicated area of misdemeanor law.  The punishments alone are nothing like other misdemeanor crimes.  For example, Disorderly Conduct in the Second Degree (hereinafter, “DC2”) is a Class B misdemeanor.  It carries a punishment of up to 90 days in jail and/or a fine of up to $250.  There is no mandatory minimum jail time.  Very simple.

Here is the punishment for a DUI, First Offense:

 (a) For the first offense within a five (5) year period, be fined not less than two hundred dollars ($200) nor more than five hundred dollars ($500), or be imprisoned in the county jail for not less than forty-eight (48) hours nor more than thirty (30) days, or both. Following sentencing, the defendant may apply to the judge for permission to enter a community labor program for not less than forty-eight (48) hours nor more than thirty (30) days in lieu of fine or imprisonment, or both. If any of the aggravating circumstances listed in subsection (11) of this section are present while the person was operating or in physical control of a motor vehicle, the mandatory  minimum term of imprisonment shall be four (4) days, which term shall not be suspended, probated, conditionally discharged, or subject to any other form of early release[.]

Complicated, huh?  Let’s talk a little bit about some of the language in this statute.

First and foremost, the statute designates a DUI, First Offense to be “the first offense within a five (5) year period[.]”  That means, for every 5 years that pass without a person picking up a DUI charge, that person’s record is etch-a-sketch-style erased.*  It doesn’t matter if you have had 6 DUIs in the past.  If you haven’t had a DUI for 5 years, your new DUI charge will be charged as a DUI, First Offense.

This whole “first, second, third…” offense within 5 years mumbo jumbo means that, in Kentucky, DUI is what we call an “enhanceable offense.”  That means the punishment gets worse every time you get a new DUI charge within that 5 year period.  The second DUI is worse than the first, the third is worse than the second, and the fourth is as bad as they come.  A fourth DUI in Kentucky within a 5 year period is a Class D felony.

You may have noticed that the statute above requires a mandatory minimum 4 days of incarceration if an “aggravating circumstance” is present.  This is what lawyers mean when they 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.

There is no such thing as a “double aggravator.”  If you had a child under the age of 12 in the vehicle at the time of the DUI, you would be facing a mandatory minimum 4 days in jail.  If you have a child under 12 in the car AND you were travelling the wrong way on the highway, you would not be facing a mandatory minimum 8 days in jail. 

In addition to the punishments listed above (the possible jail time, community labor and fine), anyone who pleads guilty to a Kentucky DUI must pay a DUI service fee, face a license suspension of 30 – 120 days, and complete alcohol/drug education classes.

See?  The punishment for a DUI 1^st in Kentucky is pretty stiff, and can be extremely complicated.  That’s why it is important to contact a Louisville DUI lawyer as soon as you can after being charged with a DUI.

If you have been charged with a DUI in Louisville, Lexington, Elizabethtown, Frankfort, or the surrounding areas, call 502.618.4949 and speak with a Louisville DUI lawyer at Simms & Reed, PLLC.  The initial consultation is free.

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


*Not to mean that your record is expunged - only that your record is re-set, where the next DUI will be a DUI 1st.  If you need an expungement, you should call a lawyer.


Also, check out http://www.duilawfirmlouisville.com/


Questions answered in this blog post: What is the punishment for a DUI first offense in Kentucky; what can a lawyer do for a DUI in Kentucky; should I hire a lawyer for a first time DUI in Louisville; how can I find a good Louisville DUI lawyer; give me the name of a good Louisville DUI lawyer; DUI lawyer Louisville, Ky.; DUI lawyer Elizabethtown, Ky.; how many days in jail am I facing for a DUI first offense in Kentucky; what are aggravating circumstances for a DUI in Kentucky; what is the 5 year rule for DUI in Kentucky; what is an enhanceable offense; contact information for Greg Simms Louisville DUI lawyer?

Free in Kentucky: "Normal" People Breaking the Law

Free in Kentucky: "Normal" People Breaking the Law: Let’s talk about laws that “normal” people break regularly.  This might make some of you repeat offenders feel better, knowing that the va...

"Normal" People Breaking the Law

Let’s talk about laws that “normal” people break regularly.  This might make some of you repeat offenders feel better, knowing that the vast majority of the public regularly violate the law.  Some people instinctively judge those who break the law as immoral or bad.  Those people may be interested to learn about some of the laws that they violate regularly.*  It might be food for thought, regarding the separation between man’s law and god’s law (or whatever code of morality).  For more discussion on this particular issue, read Jim Higdon’s book, The Cornbread Mafia.

On to the lawbreaking.  First up, consider KRS 436.320, which governs “pool table law.”  This is an extremely brief class in law school.  With regard to the “man’s law/god’s law issue,” you may find it noteworthy that KRS 436.320 is located in the section of the Kentucky Revised Statutes titled, “Offenses Against Morality.” 

Yes.  Really.

Anyway, KRS 436.320  states, in pertinent part, that no person owning or controlling a pool table shall permit, for compensation or reward, any minor under eighteen (18) years of age to play on the table, unless the minor first displays an identification card containing his name, age, photograph, and the signature of his parents or guardian. The person owning or controlling such pool table shall keep and maintain a registration book in which each minor shall sign. The person owning or controlling such pool table shall supply a “blank identification card” to each parent or guardian who makes request for same. 

The law does NOT explain what the hell a “blank identification card” is.  The statute provides for a $10 - $100 penalty for anyone violating the law.

This is a pretty strange law.  But it will stick with you.  The next time you walk into a BW3s, or some other family friendly neighborhood bar and grill with a pool table, you’ll remember that they are supposed to card minors on the table.  And my guess is, they aren’t doing it.  They probably also will not be handing out “blank identification cards.” 

Seriously, if they’re blank – how do they identify anything at all?

On to working on Sunday.

Also located in the “Offenses Against Morality” section, KRS 436.160 prevents working on Sunday in Kentucky.  Yes.  Really.

The law states, in pertinent part, that any person who works on Sunday, whether for profit or amusement, unless his work or the employment of others is in the course of ordinary household duties, work of necessity or charity or work required in the maintenance or operation of a public service or public utility plant or system, shall be fined not less than two dollars ($2) nor more than fifty dollars ($50).  It is ILLEGAL to work on Sunday in this great Commonwealth.

What about your sweet little old granny?  Does she take any medications?  Even if the medications were prescribed by a legit pharmacist, granny’s probably violating the law on the reg.  Maybe even as we speak.

KRS 218A.210 specifies that prescription drugs may only be kept in the original containers (the one the pharmacist hands you).  This ridiculous law doesn’t even provide an exception for possessing the pill in your hand as you take the prescribed medication.  And god forbid granny went down to the Walgreens and got one of those SMTWRFS days-of-the-week pill containers.  Those things are gateways to a Class B misdemeanor.

So, what did we learn from all of this?  Maybe our legislators have their heads lodged in a very dark place.  Maybe we, as a society still want to combine god's law and man's law - or maybe we are too apathetic to put the effort in to dividing the two.  Either way, I'm sorry I talked bad about your granny.  She deserves better.

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

*or maybe they won't.  maybe they are interested in how lava lamps work.  who knows.


Questions answered in this blog post: Is it illegal to work on Sunday in Kentucky; is it illegal to possess a pill container for the days of the week; what is the law of pool tables in Kentucky; how can I find a good Louisville criminal defense lawyer; how can I find a good Louisville DUI lawyer; what are some strange Kentucky laws; what laws are frequently violated by normal citizens in Kentucky?