Tuesday, October 30, 2012

Free in Kentucky: DUI Tips from a Louisville DUI Lawyer: You Know......

Free in Kentucky: DUI Tips from a Louisville DUI Lawyer: You Know......: People ask me regularly what they should do if they get pulled over by the police.   The answer to that question, like the answer to most ...

DUI Tips from a Louisville DUI Lawyer: You Know...Just in Case


People ask me regularly what they should do if they get pulled over by the police.  The answer to that question, like the answer to most legal questions is, “It depends.”  Let’s start with a few basic facts and assumptions, then we’ll move to the “what to do” portion of the post.

Basic Principle #1: It is not illegal to drink and drive in Kentucky unless you are “under the influence.”  Everyone has heard that it is illegal to drink and drive.  But that’s not really true.  “Don’t Drink and Drive” is a billboard slogan.  It is not the law.  The truth is that it is perfectly legal to have a beer or two with dinner, or a glass of wine out with your friends, and drive home, as long as you are not “under the influence” of alcohol.

Basic Principle #2: Notwithstanding Basic Principle #1, it is a bad idea to drink and drive in Kentucky.  Seriously, it can save you a lot of headache and money if you just take a cab.  Or, if you are lucky enough to live in Louisville inside the Watterson, take City Scoot.  You may not wake up and be glad that you did.  But if you wake up in jail, you’ll be sorry that you didn’t.

Basic Principle #3: Police are not your friends, and they are not trying to help you.  Police officers have a job to do and they have to justify their job.  Their job is to arrest people.  If you give them any reason to arrest you, even if it is a close call, they will arrest you.

Basic Principle #4: Some police officers know the law and follow it.  Some police officers do not know the law.  Some police officers know the law and choose not to follow the law.

Now let’s meander into the realm of “What to do.”  For the purposes of this conversation, assume that you’ve had a few drinks at dinner, and that you are being pulled over on the drive home.  Assume that you’re feeling some effects of the alcohol, but you wouldn’t consider yourself to be “drunk.”  You aren’t sure whether you would be considered “under the influence” of alcohol.  You’re driving just fine, but you got caught speeding a few miles per hour over the limit.

That brings me to my first point, “How NOT to get pulled over.”  In the above scenario, the easiest way to avoid going to jail is to avoid minor traffic violations.  Before you put the car in gear, make sure you have your seatbelt on, and both of your headlights are illuminated.  Make sure your break lights are functioning.  Make sure you have insurance and up-to-date registration, and that you have proof of both in the car or in your wallet.  Don’t speed.  Make sure to use your blinkers, and obey all traffic signals.  If it says “STOP,” then stop.  Don’t just slow down.

How to Interact with Police:

Keep your proof of insurance behind your license in your wallet.  That way you can pull it out immediately and give it to the officer when you get stopped.  This will avoid a situation wherein the officer writes “Subject had difficulty producing proof of insurance/Subject fumbled around with his documentation” on the citation.

Don’t speak to the police officer.  You have the right to remain silent.  Exercise that right.  This will avoid a situation where the officer writes “Subject had the smell of alcohol on or about his breath/Subject had slurred speech” on the citation.  Instead of speaking, you will remain respectfully silent, hand the officer your documentation and my business card.  On the back, it has a little love letter to the police, informing them that you will not be performing field sobriety tests and that you do not waive your rights.  Which reminds me…

Don’t take Field Sobriety Tests.  Seriously – just stand there and remain respectfully silent.  There is no negative ramification for refusing to take FSTs.  This will avoid a situation where the officer writes “Subject failed FSTs/Subject showed presence of Nystagmus prior to and at 45 degrees, and at maximum deviation/lack of smooth pursuit/Subject could not maintain balance, etc.” on the citation.

Don’t take a Portable Breath Tester.  The PBT is the breathalyzer that police officers carry with them.  There is no negative ramification for refusing to take a PBT.  If you stand silent and refuse to blow, this will avoid a situation where the officer writes “PBT showed presence of alcohol/PBT .08” on the citation.

Doing all of the preceding is the best way to avoid getting arrested.  If you don’t give the police officer enough evidence to constitute probable cause for your arrest, you cannot be arrested.*  If you are actually arrested without probable cause, you need to talk to a good Louisville DUI lawyer immediately.  I can make a motion to dismiss your case for a violation of Constitutional rights (specifically, 4th Amendment). 

I’ve droned on enough about how to interact with police in order to avoid arrest.  At least for today.  If you have any questions about whether you should take the Intoxilyzer Breath Test (not a PBT – this would be the breath test AFTER arrest), the enhanceability of DUI, aggravating circumstances, or other motions to dismiss or suppress in a DUI case, please do not hesitate to call me.

Simms & Reed, PLLC.  Individual Attention.  Extraordinary Results.

If you are charged with a DUI in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, call 502.618.4949 for a free consultation with an experienced Louisville DUI lawyer.  Greg Simms was named in Louisville Magazine's "Top Lawyers" of 2012 for DUI law.  Your case is serious.  Don't trust your DUI case to someone who only practices DUI law "every once in a while."  Call Simms & Reed, PLLC, today.


*Subject to Basic Principle #4.

Questions answered in this post:  What does "under the influence" mean; is it illegal to drink and drive in Kentucky; what am I supposed to do if I get pulled over by the police and I've been drinking; should I take field sobriety tests; should I take a portable breath test; how can I find a good Elizabethtown DUI lawyer; how can I find a good Louisville DUI lawyer; Louisville top DUI lawyers 2012; how do I avoid a DUI in Kentucky?

Free in Kentucky: Illegal Possession of Alligator: Exotic Animal Law...

Free in Kentucky: Illegal Possession of Alligator: Exotic Animal Law...: Pursuant to NBC News, a New York couple was arrested for possession of guns, drugs and an alligator.  The gator was 3.5 feet long, and a p...

Wednesday, October 17, 2012

Free in Kentucky: All You Need to Know About Kidnapping in Kentucky

Free in Kentucky: All You Need to Know About Kidnapping in Kentucky: Pursuant to WLKY: A Louisville man named David Mitchell is accused of trying to kidnap a child after police said he grabbed a child at the...

All You Need to Know About Kidnapping in Kentucky


Pursuant to WLKY: A Louisville man named David Mitchell is accused of trying to kidnap a child after police said he grabbed a child at the L&N Building on Broadway.  Mitchell faces an attempted kidnapping charge.

According to the police, a 1-year-old child was playing on the floor near Mitchell. When Mitchell’s friend came out of an office area, Mitchell reached down, grabbed the child’s arm and tried to leave the building, police said.

The child’s mother yelled and chased Mitchell and her child, according to the report. Police said Mitchell dropped the child in the foyer area and took off.  According to a warrant, Mitchell could be seen on video surveillance grabbing the child and leaving.

Kidnapping is a serious charge in Kentucky.  In this particular instance, Mr. Mitchell is actually accused of trying to take a child.  In most cases, however, Kidnapping is used as a supplementary charge in cases like burglary, robbery, and rape.  I hope I don’t actually have to tell anyone this, but victims in kidnapping cases do NOT have to be “kids.” 

A lot of people believe that the victim has to be taken somewhere else in order to be kidnapped.  That’s not true.  Let’s dive into the statute, shall we?

Pursuant to KRS 509.040, Kidnapping is defined as follows:

(1) A person is guilty of kidnapping when he unlawfully restrains another person and when his intent is:
(a) To hold him for ransom or reward; or
(b) To accomplish or to advance the commission of a felony; or
(c) To inflict bodily injury or to terrorize the victim or another; or
(d) To interfere with the performance of a governmental or political function; or
(e) To use him as a shield or hostage; or
(f) To deprive the parents or guardian of the custody of a minor, when the person taking the minor is not a person exercising custodial control or supervision of the minor as the term "person exercising custodial control or supervision" is defined in KRS 600.020.

(2) Kidnapping is a Class B felony when the victim is released alive and in a safe place prior to trial, except as provided in this section. Kidnapping is a Class A felony when the victim is released alive but the victim has suffered serious physical injury during the kidnapping, or as a result of not being released in a safe place, or as a result of being released in any circumstances which are intended, known or should have been known to cause or lead to serious physical injury. Kidnapping is a capital offense when the victim is not released alive or when the victim is released alive but subsequently dies as a result of:
(a) Serious physical injuries suffered during the kidnapping; or
(b) Not being released in a safe place; or
(c) Being released in any circumstances which are intended, known or should have been known to cause or lead to the victim's death.


Subsection (1)(b) is the subsection that is typically used in Burglary, Robbery or Rape cases, as mentioned, supra.  If a suspect breaks into a home and ties up a couple in order to steal from them, the suspect can be guilty of both Burglary AND Kidnapping.

Subject to subsection (2), the condition of the victim – whether “harmed” or “unharmed” – can determine whether the offender will face a Class B or Class A felony.  Obviously this is a pretty big deal because it can mean the difference between life in prison or getting out and having some sort of life outside prison walls.  Class B felonies carry a penalty of 10-20 years.  Class A felonies are the most serious felonies in Kentucky – offenders face a penalty of 20 years – life in prison.

I’m sure most of the individuals reading this material will never have to know this information.  But I hope you found it informative.

Simms & Reed, PLLC.  Idividual Attention.  Extraordinary Results.

Monday, October 15, 2012

Free in Kentucky: That's Assault, Brother.

Free in Kentucky: That's Assault, Brother.: “Assault” is a weird piece of legalese.  In normal people terms, it means somebody got struck by someone else.   In legal terms, it ha...

That's Assault, Brother.


“Assault” is a weird piece of legalese.  In normal people terms, it means somebody got struck by someone else.  

In legal terms, it has two meanings.  Let’s say Jim and Toby are hanging out at Blandford’s store.  Toby was all like, “you’re book is weak.”  So Jim smacked Toby in the mouf, and then Jim broke out.  Assuming Toby wants to pursue all legal options, he can choose to initiate both Civil and Criminal proceedings against Jim.  Civilly, Jim has committed a “Battery” against Toby.  “Assault,” in civil terms, is an act that puts someone in anticipation of a battery.

Toby can also go to the County Attorney’s office and swear out a charge against Jim.  In criminal terms, the mouf smack was an “Assault.”  Most likely, this would be charged as  “Assault in the 4th Degree” (hereinafter, “Assault 4”) pursuant to KRS 508.030.  A person is guilty of Assault 4, if he or she intentionally or wantonly causes physical injury to another person; or with recklessness, he or she causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

Jim would most likely be prosecuted under subsection 1(a) of KRS 508.030, because he intentionally caused a physical injury (albeit a mild one) to Toby.  Assault 4 is a Class A Misdemeanor, so Jim would be facing up to one (1) year in jail.

Pursuant to the KRS and anyone with a lick of common sense, the act of intentionally striking someone WITH something makes the act more culpable than intentionally striking someone with a fist alone.  That is a common theme with the Assault statutes.  Also, and just as obviously, causing more serious injury to someone will get you in more trouble.

About this time, we should probably dissect the difference between “physical injury” and “serious physical injury.”  And maybe figure out what exactly counts as a “deadly weapon.”  And “dangerous instrument.”  That might be it.  We’ll see - I haven’t really planned this out.

The definitions - if you are following along in the KRS* - are actually located in the “general provisions” of the Kentucky Penal Code section of the KRS - NOT in the Assault section.  So go to the 500 section, not 508.

"Physical injury" means substantial physical pain or any impairment of physical condition.  If you are wondering what “substantial physical pain” means, join the club.

"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.  If you are thinking that this is a pretty high bar for damage in an Assault case, you are right.  This definition provides the basis for some pretty good criminal defense work in the world of Assault.

"Deadly weapon" means any of the following:
(a) A weapon of mass destruction;
(b) Any weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged;
(c)  Any knife other than an ordinary pocket knife or hunting knife; 
(d) Billy, nightstick, or club; 
(e)   Blackjack or slapjack; 
(f) Nunchaku karate sticks;
(g) Shuriken or death star; or
(h) Artificial knuckles made from metal, plastic, or other similar hard material.

No, I didn’t make that up.  The KRS actually uses the words “Nunchaku karate sticks” and “death star.”

"Dangerous instrument" means any instrument, including parts of the human body when a serious physical injury is a direct result of the use of that part of the human body, article, or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury.

Ok - so we’ve defined the words we need to define - let’s move on to other levels of Assault.

Assume that Assault 3 is reserved for Assault on an officer of the law, teacher, or other similar public servant.  We aren’t going to drone on and on about Assault 3.  Don’t hit a public servant.

Rather, let’s move on to Assault 2 - a Class C Felony which carries a penalty of 5-10 years in prison.  As you might imagine, the reason for the increased penalty is because the acts enumerated in the statute are more serious.  Pursuant to KRS 508.020, a person can be guilty of Assault 2 by doing any of the following:

(a) He intentionally causes serious physical injury to another person; or
(b) He intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(c)  He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.

As you can see, in order to be guilty of Assault 2, generally you have to either 1) cause a serious physical injury OR 2) cause a physical injury with a deadly weapon.

That brings us to Assault in the First Degree, or “Assault 1.”  If you take a look at KRS 508.010, you will find the requirements for this particular offense, which are as follows:

(1)      A person is guilty of assault in the first degree when:
(a) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or
(b)   Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.

Assault 1 is a pretty serious deal.  It is a Class B Felony, which means the actor is facing 10-20 years in prison.

Today, we’ve spent quite a bit of time talking about what makes a person guilty of Assault.  Bear in mind that we haven’t even scratched the surface on defenses to Assault at this point.  Any decent Louisville Assault lawyer would need to study your case in order to determine whether self-defense, anticipatory self-defense, defense of others, choice of evils, or intoxication may be ticket or tickets to your freedom.  Also "some people deserve to be smacked" may work, depending on the alleged victim.

If you have been charged with Assault in Louisville, Lexington, Elizabethtown, Frankfort, or the surrounding areas, you need an attorney.  Call an experienced Louisville Assault lawyer today.  For a free consultation, call 502.618.4949 and ask for Greg Simms.

Simms & Reed, PLLC.  

Individual Attention.  Extraordinary Results.

*If you’re doing that, stop it.

Tuesday, October 2, 2012

Illegal Possession of Alligator: Exotic Animal Law of Kentucky


Pursuant to NBC News, a New York couple was arrested for possession of guns, drugs and an alligator.  The gator was 3.5 feet long, and a picture of the same can be viewed at the following web address:


Want to know about the law on exotic animal possession in Kentucky?  You’re in luck.

Many states have statutes or regulations prohibiting the possession of exotic animals.  Until recently, Kentucky was not one of those states.  You could own just about whatever kind of animal you wanted to, because in this great Commonwealth, we (used to) recognize that this is America.  And you’re supposed to have some individual liberties.

That changed in 2005.

Just because some people who didn’t have enough faith in God got bitten when they took up some exotic beasts, we all have to suffer.*

The current version of the Kentucky Administrative Regulations, and specifically at 301 KAR 2:082, prohibits the ownership of most fun animals.

Even more specifically, the following species are prohibited under subsections 4(1) and 4(2):

      (a) Baya weaver (Ploceus philippinus);
      (b) Blackbirds (Genus Agelaius), except native species;
      (c) Cape sparrow (Passer melanurus);
      (d) Cowbirds (Genus Molothrus), except native species;
      (e) Cuckoo (Family Cuculidae), except native species;
      (f) Dioch or red-billed quelea (Quelea quelea);
      (g) European blackbird (Turdus merula);
      (h) Fieldfare (Turdus pilaris);
      (i) Flying fox or fruit bat (Genus Pteropus);
      (j) Gambian giant pouched rat (Cricetomys gambianus);
      (k) Giant, marine, or cane toad (Bufo marinus);
      (l) Hawaiian rice bird or spotted munia (Lonchura punctulata);
      (m) Jack rabbit (Genus Lepus);
      (n) Java sparrow (Padda oryzivora);
      (o) Madagascar weaver (Foudia madagascariensis);
      (p) Mistle thrush (Turdus viscivorus);
      (q) Monk or Quaker parakeet (Myiopsitta monachus);
      (r) Multimammate rat (Genus Mastomys);
      (s) Mute swan (Cygnus olor);
      (t) Nutria (Myocastor coypus);
      (u) Prairie dog (Cynomys spp.);
      (v) Raccoon dog (Nyctereutes procyonoides);
      (w) San Juan rabbit (Oryctolagus cuniculus);
      (x) Sky lark (Alauda arvensis);
      (y) Song thrush (Turdus philomelus);
      (z) Starling (Family Sturnidae) including pink starlings or rosy pastors (Sturnus roseus), except for Indian Hill mynahs (Gracula religiosa);
      (aa) Suricate or slender-tailed meerkat (Genus Suricata);
      (bb) Tongueless or African clawed frog (Xenopus laevis);
      (cc) Weaver finch (Genus Passer), except Passer domesticus;
      (dd) White eyes (Genus Zosterops);
      (ee) Wild European rabbit (also called the San Juan Rabbit) not distinguishable morphologically from native wild rabbits;
      (ff) Yellowhammer (Emberiza citrinella); or
      (gg) A member of the following families:
      1. Suidae (pigs or hogs), except for domestic swine;
      2. Viverridae (civits, genets, lingsangs, mongooses and fossas); or
      3. Tayassuidae (peccaries and javelinas).

      (2) Except as specified in Section 5 of this administrative regulation, a person shall not import or possess the following species of inherently dangerous wildlife:
      (a) Alligators or caimans (Family Alligatoridae);
      (b) African buffalo (Syncerus caffer);
      (c) Bears (Family Ursidae);
      (d) Cheetah (Acinonyx jubatus);
      (e) Clouded leopard (Neofelis nebulosa);
      (f) Crocodiles (Family Crocodylidae);
      (g) Elephants (Family Elephantidae);
      (h) Gavials (Family Gavialidae);
      (i) Gila monsters or beaded lizards (Family Helodermatidae);
      (j) Hippopotamus (Hippopotamus amphibius);
      (k) Honey badger or ratel (Mellivora capensis);
      (l) Hyenas (Family Hyaenidae), all species except aardwolves (Proteles cristatus);
      (m) Lions, jaguars, leopards or tigers (Genus Panthera);
      (n) Old world badger (Meles meles);
      (o) Primates, nonhuman (Order Primates);
      (p) Rhinoceroses (Family Rhinocerotidae);
      (q) Snow leopard (Uncia uncia);
      (r) Venomous exotic snakes of the families Viperidae, Atractaspididae, Elapidae, and Colubridae, except for hognose snakes (Genus Heterodon);
      (s) Wolverine (Gulo gulo); or
      (t) Hybrids of all species contained in this list.


If you acquired your Gila Monster prior to July 13, 2005, if it hasn’t eaten you, and if you wish to keep it, you should read subsection (5) which states: “(5) A person who legally possessed wildlife listed in Section 4(2) of this administrative regulation prior to July 13, 2005, may continue to possess the animal and shall maintain:
      (a) Veterinary records;
      (b) Acquisition papers for the animal; or
      (c) Any other evidence that establishes that the person possessed the animal in Kentucky prior to July 13, 2005.”

That's all I got.  Hope you enjoyed this post.

If you or someone you know has been cited or arrested for harboring a dangerous exotic animal, call 502.473.6464 for a free consultation.  Murphy & Powell, PLC.

*May or may not have anything to do with this law.