Wednesday, June 22, 2011
Feel free to click on the above link for the whole story - I feel compelled to write a blog post on the issue because I just find it hilarious. But there's nothing I can say that lends much to the above story. Click above and enjoy.
Here are a couple of other issues concerning escape:
Question 1) Is it considered escape if I am under arrest and I kick the back window out of a police car?
You wouldn't believe how often that happens. Let's call our subject "Bob." Bob is possibly intoxicated and would rather not be arrested. In fact, he is downright anti-being arrested. So when Bob is confined to the back seat of a cruiser, he tries to cause as much ruckus as possible. For some people, that means kicking out a window. When it does, police tend to charge a person with escape, even if the only thing that leaves the cruiser is Bob's recently bloodied foot/ankle.
If a police officer charges Bob with Escape in the first degree, he is over-charged. Escape in the first requires "the use of force or threat of force against another person." If the reason Bob is in the cruiser is because he has been charged with a felony, it could be Escape in the second degree, which is a Class D felony. If Bob was only arrested for a misdemeanor, such as DUI, first offense, then Bob hasn't committed a felony by "escaping." This could possibly be Escape in the third degree, which is a Class B misdemeanor.
All of this, of course, depends on the definition of the word "escape" which is conveniently located in KRS 520.010(5). "Escape" means departure from custody or the detention facility in which a person is held or detained when the departure is unpermitted, or failure to return to custody or detention following a temporary leave granted for a specific purpose or for a limited period[.]"
I think most people would agree that if Bob is in the back of a cruiser, handcuffed, with his bloody foot hanging out of a newly broken cruiser window, that Bob has not actually made a "departure" from his custody. In fact, he is still very much in custody. However, Bob might still have committed felony Criminal Mischief (police cruiser windows are VERY expensive, apparently).
So, no. Even though you will be charged with a slew of crimes, kicking out a cruiser window is probably not actually "escape."
Question 2: Is it considered escape if I go somewhere else during work release from jail?
Yes. It is most likely a "departure from custody" if you have been granted work release, but instead of work, you go to Wal-Mart. Or, if you actually go to work, but you take a long lunch break to have a "date" with your girlfriend. Nothing will get your work release terminated, and add charges to your record, like getting a girl preggers while you're supposed to be laying brick.
Escape is a serious charge, and can often be a felony. If you have a Louisville Escape charge, or if you are charged with Escape in Lexington, Frankfort, Elizabethtown, or the surrounding areas, call 502.618.4949. Get an experienced criminal defense lawyer from Gruner & Simms, PLLC on your side. Results. As fast as the law will allow.
Tuesday, June 21, 2011
No, seriously - CARD HER.
How young is too young? The ages for Kentucky sex crime laws can be complicated. The years 12, 14, 16, 18, and 21 are all significant in the Kentucky Revised Statutes for sex crimes. And sometimes it matters whether the actor is more than 5 years older than the victim. Sometimes the difference in their ages doesn’t matter at all. Even for the most experienced sex crime lawyers, it can be difficult to keep everything straight.
Often, people use the term “statutory rape” when they talk about Kentucky sex crimes. However, there are only a couple of instances where age can determine that sexual activity is “rape.” It might be rape in the second degree (a Class C felony), if, “being eighteen (18) years old or more, he engages in sexual intercourse with another person less than fourteen (14) years old[.]” If the perpetrator is older than 21, and the victim is under 16; or if the perpetrator is over 21 and they have sex with a foster child under 18; or if the perpetrator is in a position of trust or authority (being any age), and the victim is under 16; it could be rape in the third degree (a Class D felony). Ok, maybe there are more than just a “couple” of instances where age can determine that sexual activity is “rape.” My bad.
See what I mean about it being difficult to keep all of this straight? Let’s move to something a little more simple.
On to the age of consent. It is illegal to engage in sexual activity with anyone who is incapable of consent, and there are a few reasons why a person may not be capable of consenting. Pursuant to KRS 510.020(3)(a), one of those situations is if said person is under 16 years old. So, on a person’s 16th birthday, it might be possible for them to consent to sexual behavior. That does NOT mean that you can go out and have sexual contact with a 16 year old and no crime has been committed. There are a slew of other crimes that might be committed.
If a person is under the age of 18 you may still have age-related sex crime problems. Convincing or coercing someone under 18 into sexual activity can still be a serious problem. For example, if you induce, assist, or cause anyone under the age of 18 to participate in any illegal sexual activity, you could be guilty of Unlawful Transaction with a Minor in the first degree, which is a Class C felony. So don’t touch her if she can’t buy her own cigarettes.
The answer is: 16 is the age of consent, but under 18 can still be a serious problem.
Sex crimes can be extremely serious. Get an experienced lawyer on your side. If you are charged with a sex crime in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, call a Louisville sex crimes lawyer at 502.473.6464. Get a free consultation with Attorney Greg Simms.
Questions answered in this blog post: How old is the age of consent in Kentucky; how old can a girl be for statutory rape; what is unlawful transaction with a minor; what is statutory rape; How can I find a good Louisville sex crime lawyer; what is the age of consent; Elizabethtown rape lawyer; sex abuse lawyers in Louisville?
Sunday, June 12, 2011
I’ve had some more questions about what sort circumstances can lend themselves to DUIs.
I never know exactly what someone is asking me when they ask a question like, “Can I get a DUI while riding a horse?” One person asking that question can mean something completely different than another. Some people intend to ask, “Will a police officer arrest me for riding a horse while under the influence?” and other people intend to ask, “Is it against the law to ride a horse while under the influence.” And I know those questions seem very similar. Some people are rolling their eyes at me right now, thinking “He’s going off on some BS legalese tangent. Don’t try to ‘lawyer’ me, Greg. Just tell me the answer.” But the two questions really can be worlds apart.
We have three questions for today's conversation. 1) Can I get a DUI while riding a bicycle? 2) Can I get a DUI while riding a horse? and 3) Can I get a DUI while propelling my own wheelchair? All three are going to depend on the definition of "vehicle" under the Kentucky Revised Statutes, so let’s start with the definition of “vehicle” and “motor vehicle” which appear in KRS 189.010 (19), subsections (a) and (b), respectively. The definitions are kind of broad. Here they are:
(19) (a) "Vehicle" includes:
1. All agencies for the transportation of persons or property over or upon the public highways of the Commonwealth; and
2. All vehicles passing over or upon the highways.
(b) "Motor vehicle" includes all vehicles, as defined in paragraph (a) of this subsection except:
1. Road rollers;
2. Road graders;
3. Farm tractors;
4. Vehicles on which power shovels are mounted;
5. Construction equipment customarily used only on the site of construction and which is not practical for the transportation of persons or property upon the highways;
6. Vehicles that travel exclusively upon rails;
7. Vehicles propelled by electric power obtained from overhead wires while being operated within any municipality or where the vehicles do not travel more than five (5) miles beyond the city limits of any
8. Vehicles propelled by muscular power
I gotta tell you the truth – I don’t like how our legislators have written these definitions. They could be a little more clear as to what a “vehicle” is in the first place, before trying to weed out the difference between motor vehicles and vehicles. But honestly, it doesn’t matter that much for the purpose of today’s conversation, because you can be found guilty of DUI if you are operating ANY vehicle ANYWHERE in the state, while under the influence of alcohol or other intoxicants, pursuant to KRS 189.520. The answers to today's questions depend on whether something constitutes a “vehicle.”
We will tackle bicycles first, because they are the easiest.
Can I get a DUI for riding a bicycle while intoxicated?
Yes. A police officer will most likely arrest you, and you can certainly be found guilty of DUI for riding a bike while intoxicated. A bicycle is an agency for the transportation of people on the public highways of this great Commonwealth of Kentucky. Bikes are for people to ride, and it is reasonable to assume they are to be ridden on roads (amongst other places). So, yes. Bikes count. If you still have any questions concerning the same, please consult Thomas v. Dahl, 170 S.W.2d 337 (Ky. App. 1943).
Like Jigga, we are on to the next one.
Can I get a DUI for riding a horse while intoxicated?
This is where it gets important to separate the question into two questions. First, we will answer the question of “Will a police officer arrest me for riding a horse while under the influence?” and the answer is yes. Cops will arrest you if you are drunk on a horse. Just ask Millard Greg Dwyer, who was arrested in Somerset for the same. An off duty Kentucky State Trooper said that Mr. Dwyer nearly fell off the animal, so he was arrested and charged with DUI.
As for the question, “Is it against the law to ride a horse while under the influence.” That question depends on whether a Court would consider a horse to be an agency for the transportation of people on the public highways of Kentucky. The answer is that most courts would find that, even though the subject is a source of debate amongst legal nerds such as myself and the people who write the Law Reader. See http://news.lawreader.com/?p=784. As you can tell by clicking on that link, the people at the Law Reader have a clear cut opinion that “It is not a DUI offense to ride a horse while intoxicated!” I disagree with them, and my advice to you is: Stay off the horse when you are drunk. I bet Millard Greg Dwyer would also tell you that you can, indeed, get into some trouble for being drunk on a horse.
Lastly, the most complicated question of the day is “Can I get a DUI for propelling my own wheelchair while intoxicated?”
I sure hope not. If the Americans with Disabilities Act means anything at all, at the very least, it must mean that our government and police should make efforts to make sure disabled Americans get the same rights and freedoms as everyone else. And everyone else has the right to get stinkin’ drunk on their own property, crow like a rooster, and wake up with a headache. The fact that someone is confined to a wheelchair shouldn’t mean that they can never be intoxicated without the fear of DUI charges (remember, as per previous blog posts, that you CAN get a DUI on your own property in Kentucky). The Marion County in me wants to say "That just ain't right." My legalese response is, "It is contrary to our basic principles of liberty and equality."
If the question is, "Will a police officer arrest me for propelling my own wheelchair while intoxicated?" The answer is, "I hope not. But I just don't know."
The next question, is "Is it against the law to push my own wheelchair while under the influence.” In order to find out if you would actually be guilty of DUI, again, the definition of "vehicle" will be pretty important to this conversation. However, in this case, the definition actually helps us out. In order for you to be guilty of DUI by propelling your own wheelchair while under the influence, your wheelchair would have to be considered a “vehicle.” And I think we would have a pretty decent argument that a wheelchair is not meant to be an agency for the transportation of people on the public highways of this great Commonwealth of Kentucky, any more than my own legs are. Bikes are meant for getting you down a road. Horses might be meant for getting you down a road. But wheelchairs aren’t meant for the road, just as people who have use of their legs aren’t supposed to walk down the road like crazy people. We’re supposed to use the sidewalk and alleys. Only when we have an appropriate “agency” are we supposed to actually travel the roadways. And a wheelchair is not an appropriate agency for road travel.
That being said, if you are in public, a disabled person can certainly get arrested or cited for Alcohol Intoxication in a Public Place, just like everyone else. So be careful with the booze, regardless.
DUI is a serious charge. You should trust your case to a Louisville DUI lawyer who regularly practices DUI law. Call the experienced Louisville DUI lawyers at Gruner & Simms, PLLC for a free initial consultation. The number is 502.618.4949, or you can visit www.grunersimms.com
Results. As fast as the law will allow.
Sunday, June 5, 2011
Want to watch the law change? You can physically see the big changes happening to Kentucky law, right before your eyes.
Many of the changes (brought to you by the letters HB and the numbers 463) to the Kentucky Revised Statutes are taking place this week. Significant parts of House Bill 463 are solidifying as law on June 8, 2011 (which is this Wednesday). And if you go to the KRS online, you can physically watch the changes taking place.
For example, http://www.lrc.ky.gov/KRS/218A00/1422.PDF.
If you click on the above link, you will see both the old and the new law posted under KRS 218A.1422, the Possession of Marijuana statute. This double entry of the law evidences the change in Kentucky law - where the possession of marijuana has previously been a Class A misdemeanor, but as of June 8, 2011, it will be a Class B misdemeanor with a 45 day jail cap. Any Louisville drug charge lawyer will tell you that this is significant de-criminalization, because a Class A misdemeanor carries up to twelve (12) months in jail. In short, as of June 8, 2011, the maximum penalty for marijuana possession will be about 12% of what it previously has been. Big change.
I’m not sure why, but some of the KRS changes are already posted without the previous laws. For example, KRS 218A.1411, which governs Trafficking in Controlled Substance in or Near School, already has the changed law posted. HB 463 has reduced the geographic scope of what will be considered “near” a school from 1000 yards to 1000 feet. The statute has the “effective date” listed as June 8, 2011. So technically, the current law is not posted on the KRS website. This makes for a really sticky situation for everyone who gets arrested from now until Wednesday for Trafficking Near a School. I believe that anyone who engages in trafficking within 1000 yards of a school between now and June 8, 2011 would have a very solid argument that the law posted by our great Commonwealth is the law that governs their actions. Hopefully my clients will never have to find out whether I’m right.
The most significant change, I believe, is the change to KRS 431.015. This statute previously granted the discretion to police officers to decide whether to arrest someone for a misdemeanor offense, or to give them a citation. The change is simply massive. It takes a good deal of discretion away from the officer, and requires that they just write a citation for a lot of non-violent, less dangerous misdemeanors. For example, a person smoking marijuana in public cannot be arrested in Kentucky as of June 8, 2011. The police will have to issue them a citation, just like they would for a speeding ticket. Let’s take a look at the specific language of the KRS, because it is pretty important. I am not going to post the entire Section, because the change we are talking about really just occurs in Subsection (1). Pay attention to how the language “may issue” changes from the old statute to the new.
Here is the old law:
431.015 Citation for misdemeanor -- Failure to appear.
(1) A peace officer may issue a citation instead of making an arrest for a misdemeanor committed in his presence, if there are reasonable grounds to believe that the person being cited will appear to answer the charge. The citation shall provide that the defendant shall appear within a designated time.
Here is the new law:
431.015 Citation for misdemeanor -- Arrest for certain misdemeanors -- Failure to appear.
(1) (a) KRS 431.005 to the contrary notwithstanding, and except as provided in paragraphs (b) and (c) of this subsection, a peace officer shall issue a citation instead of making an arrest for a misdemeanor committed in his or her presence, if there are reasonable grounds to believe that the person being cited will appear to answer the charge. The citation shall provide that the defendant
shall appear within a designated time.
(b) A peace officer may make an arrest instead of issuing a citation for a misdemeanor committed in his or her presence if the misdemeanor is:
1. A violation of KRS Chapter 508, 510, or 527, or KRS 189A.010;
2. An offense in which the defendant poses a risk of danger to himself, herself, or another person; or
3. An offense in which the defendant refuses to follow the peace officer's reasonable instructions.
(c) A peace officer shall make an arrest for violations of protective orders issued pursuant to KRS 403.715 to 403.785.
As a qualifier to the previous statement about how “as of June 8, 2011 a person in Kentucky cannot be arrested for smoking marijuana in public” please note that if any of the conditions present in subsections (b) or (c) are present, someone can be arrested. Consider the following scenario:
Police Officer: Excuse me, ma'am. Are you smoking a marijuana cigarette?
Police Officer: Would you kindly extinguish that marijuana cigarette?
Police Officer: Well then, you are under arrest. (Police Officer handcuffs Ma'am and thrusts her into the back of a police cruiser) (End Scene)
The preceding dialogue is an example of how one might get arrested based on subsection (b)(3). I knew that theatre degree would really come in handy one day. Obviously, refusing to cease illegal activity would constitute a refusal to follow a peace officer’s reasonable instructions.
Please keep in mind that I expressly advise against smoking marijuana in public. It’s a really good way to establish probable cause to get you searched. Further, if a police officer sees you sharing a joint with a friend or fellow Phish concert attendee, you can both be charged with trafficking in marijuana. The simple act of “transferring” marijuana constitutes trafficking under KRS 218A.010, subsection (42). And as of right now, if it is your second or subsequent offense, passing that joint can be a felony under KRS 218A.1421.
Also, for all of my marijuana reform readers – I’ve had more than a couple of people talk about how they think it would be a great idea to organize some sort of “smoking in public” day, where a bunch of people would meet up and light up in public because the law is changing. There are a lot of perils of “trafficking” that would come along with that circus, as mentioned above. However, I do NOT believe that organizing such an event would constitute “engaging in organized crime (as one person has expressed concern about the same), because it doesn’t rise to the level of the statute. Here is the applicable subsection of KRS 506.120 –
"criminal syndicate" means five (5) or more persons, or, in cases of merchandise theft from a retail store for the purpose of reselling the stolen merchandise, two (2) or more persons, collaborating to promote or engage in any of the following on a continuing basis:
(a) Extortion or coercion in violation of KRS 514.080 or 521.020;
(b) Engaging in, promoting, or permitting prostitution or human trafficking in violation of KRS Chapter 529;
(c) Any theft offense as defined in KRS Chapter 514;
(d) Any gambling offense as defined in KRS 411.090, KRS Chapter 528, or Section 226 of the Constitution;
(e) Illegal trafficking in controlled substances as prohibited by KRS Chapter 218A, in intoxicating or spirituous liquor as defined in KRS Chapters 242 or 244, or in destructive devices or booby traps as defined in KRS Chapter 237;
(f) Lending at usurious interest, and enforcing repayment by illegal means in violation of KRS Chapter 360
The definition of “criminal syndicate” does not include smoking marijuana, or the organization of a marijuana related rally. Again, none of this should be construed as advice advocating marijuana use. Those funny little plants are certainly still illegal.
Criminal charges are serious. If you have been charged with a drug offense in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, please visit www.louisvillefirm.com. Or you can call experienced Louisville drug charge lawyer Greg Simms at 502.473.6464. The initial consultation is free.
Results. As fast as the law will allow.
Questions answered in this blog post: What are the changes in HB 463, How many feet is trafficking near a school, can a police officer arrest me for smoking marijuana in public, in Kentucky, how much weed can be a felony, Louisville drug charge lawyer; Elizabethtown drug lawyer; Elizabethtown attorney for drug possession; is a marijuana rally “organized crime”, is possession of marijuana a misdemeanor or felony.