Free in Kentucky: Passing Out? Make Sure Your Keys Aren't in the Ig...

Free in Kentucky: Passing Out? Make Sure Your Keys Aren't in the Ig...: There are a lot of common misconceptions and/or myths about the law.  Let me take the next couple moments to dispel a couple or few.  123 g...

Passing Out? Make Sure Your Keys Aren't in the Ignition.

There are a lot of common misconceptions and/or myths about the law.  Let me take the next couple moments to dispel a couple or few.  123 go-

1) They didn’t read me my rights!!!!  It probably doesn’t matter.  The cops don’t have to read your Miranda Rights just because they arrest you.  Long story short, they only have to Mirandize you if you are going to be interrogated whilst in custody.  Blame Dragnet for this one.

2) If you put a penny in your mouth, it will beat the breathalyzer!!!  No.  Of course that’s not true.  Don’t be a jackass.

3) It’s illegal to drive without shoes on!!!  Not true, but I can see how one might reasonably believe this as it could be a safety issue.

4) If you’re drunk in a car, make sure the keys are out of the ignition so you don’t get a DUI!!!  Actually, this one holds a lot of weight and is damn near spot on.  And that brings us to the blog post of the day – Wells factor DUIs.

What happens when the police roll up on someone sleeping in a car, assuming the sleeping person is under the influence?  The answer, as it almost always is: It depends.  There are a lot of fact specific questions that need to be asked in order to find out if the Commonwealth can actually prove someone was driving under the influence. 

First things first, we have to define the word “driving” and it does not mean “driving” (doesn’t that sound like some serious lawyer BS?).

“DUI” and ‘Driving Under the Influence” are common terms for a legal charge in Kentucky based on KRS 189A, the statute that governs Operating a Motor Vehicle Under the Influence.  The key word is “operating” and not “driving.”  It is possible to get a DUI when you are not driving.

Now back to our hypothetical situation. 

The police roll up on Frank the Tank, who is passed out in the Red Dragon.  He just took the restrictor plate off and she ain’t exactly street legal, so we’ll keep that on the downlow.  But let’s say Frank is drunk in the old muscle car – and he is completely unconscious. 

With this information, we still don’t have enough to know whether Frank will be convicted of DUI.  Some of the first questions I would have for Frank would be “How did you get there?”  “Were you parked in a legitimate parking spot?  If not, where were you?”  “Was the engine running?” “Was the car in park?” And yes, I would certainly ask “were the keys in the ignition?”

My questioning is based on the Wells factor test that Judges use to determine if there was probable cause for a DUI arrest.  Commonwealth v. Wells is a published Kentucky case that sets forth some things to consider in order to determine whether there was sufficient “operation” of a vehicle.

The Wells factors include: 1) whether the person in the vehicle was asleep or awake; 2) whether or not the motor was running; 3) the location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location; and 4) the intent of the person behind the wheel. Wells v. Commonwealth, 709 S.W.2d 847, 849 (Ky. App. 1986).

One of the beautiful quotes from Wells is “a sleeping person is seldom operating anything” quoting Pomeroy.  But that only takes care of the first Wells factor.  The second factor concerns whether the motor is running.  If it is not running (especially if the keys are out of the ignition) then Frank the Tank passes the second Wells factor.  The next one is a bit tricky.  If Frank is passed out AT at red light, we have a problem.  If he is on the side of the road, that’s a little better but maybe not good.  If Frank is in a parking lot or in his driveway and is legally parked, then GREAT SUCCESS!  we pass the third Wells factor.  Lastly, we look to the intent of the person behind the wheel.  Again, if Frank is unconscious, he likely has formed the mental state to do anything except drool on himself.  The intent to drive is not present.

It should be noted that the factors should be taken as a totality of the circumstances test, meaning the failing or passing of one factor doesn’t necessarily pass or fail Frank the Tank.

That leaves us with the lesson for the day:  If you are going to pass out in a car, you should 1) be in a legal parking spot, 2) make sure the keys aren’t in the ignition, and 3) make it a little easier on your lawyer and pass out in the back seat or passenger seat, instead of the driver’s.

I hope this has cleared up any pass out/Wells DUI questions.  If you still have questions or concerns about DUI in Kentucky, call me – Greg Simms – at 502.473.6464.

My door is always open.

Free in Kentucky: The Knockout Game: What Crimes are Committed?

Free in Kentucky: The Knockout Game: What Crimes are Committed?: The big story this past week in criminal law is the “knockout game.” Last things first – I’ve heard several people say this is not a “g...

The Knockout Game: What Crimes are Committed?

The big story this past week in criminal law is the “knockout game.”

Last things first – I’ve heard several people say this is not a “game” because it is dangerous/reckless/a terrible idea.  I submit that the fact that something is dangerous or reckless does not preclude it from being a game.  Take Russian Roulette, for example.  It’s a horrible idea, and just about as dangerous as games come – but it’s a game.  If people play it for the purpose of gambling or amusement, it can be a game.

According to various news sources I am too lazy to cite, there are groups of young people (mostly guys) who make a game out of knocking out strangers.  One of the aggressive youngsters will turn to another aggressive youngster and dare (or bet) him to knock out some nearby person.  The really messed up part of the game is that they don’t necessarily “pick on someone their own size.”  The victims of the game have been men, women, and even children and elderly people.

Then the stranger gets punched.

Videos have surfaced wherein the victim falls to the ground, unconscious and seemingly lifeless.  There have also been multiple stories regarding the intended victim using force, sometimes deadly, to defend themselves.

Today we’re going to talk about the legal ramifications of the knockout game.

As you've probably already guessed, this type of behavior is clear cut “Assault.”  But we’re going to turn to the Kentucky Revised Statutes to figure out what type of assault we are dealing with, and whether it could be a higher crime.

I’ll go ahead and spoiler alert Assault in the 4^th Degree for you.  As long as there is some sort of injury received by the victim, it counts as Assault 4^th.  Assault in the 3^rd Degree (for the purposes of this conversation) is reserved for assault on public servants like police officers, fire fighters, etc.  The real question for today is whether the actions in the knockout game would constitute Assault in the 1^st or 2^nd Degree – because they are felony offenses.

Since we’re not dealing with deadly weapons the real question is: did the victim receive a “serious physical injury?”  And that depends on the circumstances.  Serious Injury is defined in the KRS under 500.080(15) and states:

"Serious physical injury" means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.”

So basically, yes, playing the knockout game could constitute a felony assault offense – but it depends on how bad the victim gets hurt.

Let’s say the victim is one of these little old ladies, and she is struck hard enough to cause death.  If the youngster playing the game did not intend for her to die, would it be murder?  After all, the point of the game is just to knock people out and not to kill them.

The answer to that question is maybe.  It could still constitute Murder depending on how reckless or wanton a jury thought the conduct of the "knockout game" was.  I think most everyone would agree that playing the knockout game is reckless behavior.  But reckless conduct only gets us to Reckless Homicide – which carries 1-5 years in prison because it’s a class D Felony.

The question is whether the conduct rises to the level of wanton conduct with conscious disregard for human life.  The “depraved heart” section of the Kentucky Murder statute states that the actions can constitute murder if “under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.”

Personally, I think this is where defining the conduct as a “game” would help convict the participant of a higher crime.  It sounds horrible.  To take something so dangerous as punching an elderly woman in the face or head, and call it a “game” makes the conduct seem more reckless and could cause jurors to believe it rises to the level of wanton conduct.

So the answer to the murder question is, yes – if a jury believes the game is wanton conduct and that the assailant acted with extreme indifference to human life – the knockout could constitute murder in some cases.

As a side note, some people have asked whether this could be a "hate crime" if committed by members of one race against members of another race.  And that type of thing depends on the motives of the attacker.  From what I understand the choosing of a victim in the knockout game is somewhat arbitrary and on the fly.  It isn't based on race, age, or some protected class.  If that is the case, it most likely wouldn't constitute a "hate crime."  

But that doesn't mean the conduct would go unpunished.

If you have any more questions about Assault, Murder, or other homicide crimes, please let me know.  My door is always open.  Feel free to give me a call.

Greg Simms

Louisville DUI Lawyer

Murphy & Powell, PLC.

502.473.6464

Free in Kentucky: "Burglary" and "Robbery" Don't Mean the Same Thing...

Free in Kentucky: "Burglary" and "Robbery" Don't Mean the Same Thing...: Robbery and Burglary are often used interchangeably by the general public.  “Some Ahole burglarized my car.” or “My house got robbed last n...

"Burglary" and "Robbery" Don't Mean the Same Thing.

Robbery and Burglary are often used interchangeably by the general public.  “Some Ahole burglarized my car.” or “My house got robbed last night.”  But Robbery and Burglary are 2 very different crimes.  Today, we’re gonna talk about the differences between the two – so that next time you’re at a party and someone screws it up, you can point that out.  That’ll make you really popular.

The Kentucky statute that governs Robbery in the Second Degree is located at KRS 515.030, and states:

 (1) A person is guilty of robbery in the second degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft.

(2) Robbery in the second degree is a Class C felony.

Basically, we’re dealing with stealing from another person by use of force or threat of force.  The definition of robbery doesn’t usually surprise people – but the definition of Burglary usually does.  Let’s check out KRS 511.030 and we’ll get the basic scoop on Burglary.

 (1) A person is guilty of burglary in the second degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a dwelling.

(2) Burglary in the second degree is a Class C felony.

So Burglary means that you entered a dwelling (and for the purpose of this conversation that means any building owned by another person) with the intent to commit a crime, and you did not have permission to be in that building.

The primary differences between Robbery and Burglary are 1) Burglary involves being in a building unlawfully, and Robbery does not; and 2) Robbery is a theft crime and Burglary is not necessarily a theft crime.  While it is true that often Burglary involves stealing, it doesn’t have to.  Example?  Sure.

Let’s say you broke into your enemy’s home for the purpose of urinating on the rug.  Let’s assume this rug REALLY tied the room together.*  Once you break into the home with the intent to commit that particular bit of criminal mischief, you have burglarized the home.  It does NOT matter if you actually carry out the act of rug pissing.  Breaking in with the intent to micturate upon it is sufficient to make you guilty of Burglary.

This blog post is not intended to be a full spectrum analysis of the differing degrees of Robbery and Burglary – just know that each of those crimes can be made more serious depending on whether weapons are involved.

So there you have it.  Robbery means “Stick-up” in the parlance of the 1950s*, while Burglary involves being unlawfully in a home with the intent to commit a crime.

For any more questions on Burglary, Robbery or the difference between the two, feel free to give me a call.  502.473.6464.

* Did it not?  #shutupdonnie

*#putupyourdukes

Free in Kentucky: New Mexico Anal Cavity Search and Police Misconduc...

Free in Kentucky: New Mexico Anal Cavity Search and Police Misconduc...:         Police misconduct is unfortunately more common than most people understand it to be.  Last week the story about the police officer...

New Mexico Anal Cavity Search and Police Misconduct

        Police misconduct is unfortunately more common than most people understand it to be.  Last week the story about the police officer who ordered the anal cavity searching drew a lot of attention.  

         For those of you who are unaware of the story, a New Mexico man named David Eckert was stopped for running a stop sign.*  After he got out, the officer claimed that Eckert looked to be “clenching” his buttocks.  Because of this, the officer drove Eckert to a nearby hospital and asked a doctor to perform an anal cavity search.  The doctor refused on the grounds that it was unethical.  The police officer then drove Eckert to a neighboring county hospital and found another doctor who was willing to perform the search.  Here’s what happened next:

1.       According to Eckert’s abdominal area was X-rayed; no narcotics were found.

2.      Doctors then performed an exam of Eckert’s anus with their fingers; no narcotics were found.

3.      Doctors performed a second exam of Eckert’s anus with their fingers; no narcotics were found.

4.      Doctors penetrated Eckert’s anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.

5.      Doctors penetrated Eckert’s anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.

6.      Doctors penetrated Eckert’s anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.

7.      Doctors then X-rayed Eckert again; no narcotics were found.

8.      Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert’s anus, rectum, colon, and large intestines. No narcotics were found.

            After this story surfaced, I heard a lot of people call this sort of police activity “Shocking” and “Unbelievable.”  I don’t find it to be either of those things.  Sure, the facts of the New Mexico case are a little out there because we’re talking about a repeated cavity search.  But the core issues, police misconduct and cover-up, are not unusual.

            And don’t get me wrong – there are a lot of great cops out there.  A lot.  There are many police officers who work their butts off at a very dangerous job for too little pay, and they never engage in misconduct like unlawful arrests, police brutality, or other violations of citizens’ Constitutional Rights.

            The problem is when the bad deeds of the rotten apples go unpunished.  Then police misconduct spreads like a virus.

            In Louisville, police misconduct is not unbelievable.  It’s not shocking.  Unfortunately it isn’t even “uncommon.”  I’ll give you a few examples of some cases I’m working on.

            “Barry” – Even the police agree that when Barry was walking down the street, he was doing nothing illegal.  He was just walking to his mom’s house one night with a backpack on.  The police pulled up and spotlighted him, stopping him on the sidewalk because he “matched a description.”  The problem with that description is that the only description the police are trying to rely on was a generic description of an average black male with dark clothing who had dreadlocks.  And Barry did not have dreadlocks.

            But the police continued to detain Barry, demanding to search his backpack (which contained nothing illegal), frisk searching him for weapons (he had none), and eventually throwing him to the ground after he objected to the frisk search.  They busted one of his teeth out when they threw him to the concrete.

            Barry’s story checks out because he just so happened to be recording the incident on a digital recorder.  By the way, he had the recorder because he had been stopped NINE times in the past year for no reason.  Just for walking down the street.

“Tommy” – Tommy was hanging out with his cousin in the backyard of his cousin’s house.  They were just standing around, talking.  A police officer approached and, flashing the light in their eyes, walked into the yard and told them he would have to search them.

Tommy was wearing a cast following a recent surgical procedure on one of his arms.  He raised his hands the best he could and advised the approaching officer that he had both a handgun and a CCDW license for the weapon in his back pocket. After removing the handgun and license from his pocket, the officer handcuffed Tommy’s free arm to his belt loop and called a second officer to the scene. While Tommy was in handcuffs, one of the officers drew his service revolver and pointed it at Tommy.  When Tommy asked the officer not to point the gun at him, the officer replied, “I’m not fucking pointing it at you.  Shut your fucking mouth.”        Tommy said “that’s uncalled for, man” - at which time the officer slammed Tommy’s head against the police cruiser.  The cop took him to the ground, injuring his knee (needing surgery after the fact), while another placed his knee on the back of Tommy’s neck. The officers then repeatedly punched him in the side, repeatedly slammed the arm that was in a cast against the pavement, and tore a lock of hair from Tommy’s head.

            Toward the end of the encounter, the officers advised Tommy that they had been searching for burglary suspects in the vicinity.  The officers took Tommy and showed him to the burglary victims, who were seated in a nearby police cruiser.  They confirmed that Tommy was not involved in the burglary of their home.

           

            I wish I could say that those 2 cases were the only police misconduct cases I had right now.  But that’s just the beginning.  And the worst thing about these cases is that the police who engage in this behavior never admit to any wrongdoing – often the police departments they work for stand behind them and stick up for the misconduct.  They protect their own.

           

            Not all of it is driven by racism, but a lot of it is.   

            When police misconduct is allowed, corruption is invited.

            I don’t really have a follow up, cathartic ending to this story.  Hopefully we’ll get some legitimate justice on some of these cases soon, and I’ll keep you posted.  Until then, I just hope to shed some light on the problem.  Maybe next time something like this hits the news, people won’t be so “shocked.”

           

*All of the info I received on the New Mexico case was from the Huffington Post, so if I got some details wrong, sue them.  Not me.

Free in Kentucky: This is Why David Camm is Not Guilty

Free in Kentucky: This is Why David Camm is Not Guilty: David Camm has been incarcerated for 13 years.  That's a helluva lot of time.  He was twice conviced of the Murder of his wife and chil...

This is Why David Camm is Not Guilty

David Camm has been incarcerated for 13 years.  That's a helluva lot of time.  He was twice conviced of the Murder of his wife and children, and those convictions were overturned by a higher court.  This past week, he was retried for the 3^rd time and found Not Guilty of the Murders.  He is a free man.

Here is why that’s the right result:

1) Another guy killed Camm’s family.  Charles Boney killed Camm’s wife and kids.  He has been convicted of the killings, and is serving a 225 year sentence for that conviction.  Boney testified in the Camm trial.  That was the prosecution’s major piece of evidence.  A previously convicted felon (not just for the Camm family murders) who had ALREADY been convicted of killing the Camm family.  That alone, is reasonable doubt.  No matter how detailed Boney's account could have been, no matter how fervently his accusation may have been - the Defense gets to say "Of course he's going to say that.  He is the one who killed Camm's family.  We know that because he's already been convicted."

2) Camm had nearly a dozen alibis.  Camm was playing basketball at the time his family was killed.  He came home to find the family murdered.  Part of the reason he was arrested (three days after the family was murdered) was because Camm had blood on his clothing.  However, Camm’s story was consistent with having some blood on his clothing.  Which conveniently brings us to blood spatter evidence - which happens to be my next numerical paragraph (this is called a transition sentence).

3) Blood Spatter Evidence doesn’t help anyone.  On either side.  Aside from the testomy of Boney, the other big piece of evidence was blood spatter analysis.  In fact, some people following the third Camm trial believed that the entire result would hinge on blood stain pattern analysis.  If you looked at the stains on Camm’s clothing and believed that they were “high velocity impact spatter” then you would believe that it was the result of bloog “mist” that is present after a victim is shot with a gun.  Supposedly, this type of blood spatter travels up to about four feet.  

But if you believed the blood on Camm was the result of “contact stains” then you would believe that the blood pattern is consistent with Camm’s statements that he made contact with the bodies themselves.  

OR you could just believe that blood spatter analysis is hokum, and that the “experts” just make it up as they go along.  Either way it isn’t proof beyond a reasonable doubt.

4) People don’t kill their kids unless they are absolutely nuts.  Just as a practical matter, it is much more common for a person to kill a spouse and much less common for a person to kill their own children.  Usually that type of homicide is committed by someone who is having very serious mental health issues – and there wasn’t any sort of evidence to support that in Camm’s case.

As a side note, the first 2 convictions never should have happened.  In the first, there were allegations that Camm had a previous affair(s) and that basically he wanted to dip his wick in anything that moved.  A higher court correctly found that this evidence is inadmissible (and tends to smear a man’s name) when they had no proof whatsoever of a link between the evidence and killings (that Camm killed his wife for another woman, for example).  In the second trial, the prosecutor made some argument that Camm had molested his daughter – the second conviction was overturned in 2006 after an appeals judge ruled that the trial judge, Robert Aylsworth, should not have allowed Floyd County Prosecutor Keith Henderson to argue that Camm murdered his family to cover up alleged molestation of Jill.  From what I understand, there wasn’t much of a basis for the Prosecutor to make that argument.

There was reasonable doubt all over this case.  A lot of people think Camm probably did it.  But the standard of proof in a criminal case is not “probably.” 

In order to take away your children without your consent, and do an involuntary Termination of Parental Rights (making you legally no longer the parent of your kids) the standard of proof is “Clear and Convincing Evidence.”  It is a high standard of evidence.  But that standard is NOT as high as Beyond a Reasonable Doubt. 

It takes less evidence to take your kids away from you than it does for a jury to convict a person of ANY crime.  It is the highest burden in our court system.

The fact that Charles Boney was already convicted of the killings was enough evidence, alone, to provide reasonable doubt in the Camm Murder case.

Whether you agree or not, I hope you’ve enjoyed this little discussion.

If you have any more questions about Camm, homicide, or criminal burden of proof, feel free to give me a call.

Greg Simms

Murphy & Powell, PLC.  502.473.6464

Free in Kentucky: The Government is Watching You. Try Not to Say An...

Free in Kentucky: The Government is Watching You. Try Not to Say An...: " just because you're paranoid, don't mean they're not after you." - Kurt Cobain, Territorial Pissings There’s ...

The Government is Watching You. Try Not to Say Anything Dumb.

"just because you're paranoid, don't mean they're not after you."

-Kurt Cobain, Territorial Pissings

There’s an article out on NBC News today about how police (and schools) monitor social media sites.  This shouldn’t come as a surprise to you or to anyone, really.  Your government is watching you. 

Watching.  Judging. 

And if you are charged with a serious crime, you’ll be less than thrilled to know that modern technology has gone to the trouble of collecting and documenting evidence for the police.  If you’d like to read that full article from NBC News, you can find it below.*

All social media activity is fair game during a police investigation.  If your spouse dies under mysterious circumstances, you can bet the police are going to be rooting through your Facepage and tweeters, looking for any evidence whatsoever of an imperfect marriage.  If you complained a year ago via status update that your hubby won’t take out the trash, that’s going to be blown up on a monitor in high definition for the jury to see.

Whilst gathering all of your social media data, the police are going to subpoena your cell phone service provider for all of your records.  This will allow the coppers to use what they call “ping” data to pinpoint your exact location the moment your husband had that mysterious “accident.”  As long as you are carrying a cell phone, you are carrying a bona fide tracking device that will let the police know where you are at any point you have that phone.  Within feet.  Not yards.

This obviously doesn’t just pertain to Murder investigations.

Anyone on probation or parole should delete their social media accounts IMMEDIATELY.

It should go without saying (but it doesn’t) that when you FacepageFriend your probation/parole officer and you put pics or status updates about your illegal activity on the web, you are going to get in more trouble.

This may sound like something you wouldn’t need to tell people.  But I’ve had countless clients who got home on a Thursday afternoon and updated their status something like “Can’t wait to bust into that first cold beer!!!” or “Who fixin’ to roll this big blizzy laced with hizzy?  This guy!” 

Guess who gets called in for a “random” drug screen the next day?  That guy!

Long story short - social media, cell phones and pretty much any advancement in technology whatsoever are all problematic for those who engage in activity not approved by the masses.

Not to mention people going through civil lawsuits, not-yet-litigated disputes over things like contracts or property, and especially Divorce and Custody cases.  You might think it’s cool to brag on the internet about all the ladies you’ve been slaying, but when you try to get more overnight visits with your kids, you will regret the information you put on the internet.  Because some Judges consider that to be a poor moral example.**

Again, you can find the NBC News article below.

And if you have any more questions about how the government is watching you and wants to listen to your conversations, you can call me at 502.473.6464.  My door is always open.  Or you can go ask a homeless person.  Apparently all that crazy paranoid ranting is somehow legit.

Have a fantastic day.

Greg Simms

MURPHY & POWELL, PLC

455 South 4^th Street

Suite 1250

Louisville, KY 40202

*http://www.nbcnews.com/technology/careful-what-you-tweet-police-schools-tap-social-media-track-4B11215908

**Take any advice I give you about Divorce/Custody with a grain of salt.  I’m not really that kind of lawyer.  For more information about that stuff, see Rosalie Guthrie at Murphy & Powell PLC.  And if she's not available, my little sister Rebecca Simms seems to know everything about that stuff.

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?