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February 2011 Archives

Does my military bad conduct discharge (BCD) affect my right to own a firearm?

Whether you are in Northern Kentucky or elsewhere, the military discharge may affect your ability to own a firearm if you are convicted of a felony offense. If you are convicted of a felony in a state or federal court for your right to own a firearm is automatically suspended. The Gun Control Act of 1968 further defines a prohibited person under Title 18, U.S. Code, Chapter 44. A prohibited person is one who has been convicted or is under indictment for a term exceeding 1 year; is a fugitive from justice; is a user of unlawful and/or addictive controlled substances; is mentally defective; is an illegal alien or has renounced citizenship; has been dishonorably discharged from the U.S. armed services; or individuals who are subject to a court order of restraint. The 1 year is the "potential maximum penalty" and not the penalty actually imposed. If the case is Larceny, for example, the maximum penalty is 1 year (not over 1 year), so that is not considered a Felony pursuant to the Gun Control Act. As such, the person would be eligible to own a firearm. Unless you are on probation or otherwise prohibited from gun ownership, one way to find out would be to purchase a gun or apply for a CCW permit. if you were represented by counsel, you should contact them prior to attempting gun ownership to assure that you are not under any other type of legal disability. even if convicted of a misdemeanor, if you are on probation or parole, you are likely unable to own a gun or other firearm during that period of probation

Does Anyone Fight a DUI?

There are many good criminal defense attorneys in Northern Kentucky who regularly try cases and fight against DUI charges. Fighting a DUI case is not dissimilar to other types of criminal defense, however there are special nuances which are unique to DUI defense. DUI defense often involve suppression issues relative to the stop of the vehicle, arrest or detention of the driver, search of the vehicle, and breathalyzer analysis or results of test of blood or urine. The National Highway Traffic Safety Administration (NHTSA) has protocols for Standard Field Sobriety Tests (SFST or FST). A good cross examination will often point out whether the arresting officer followed the details of these SFST. Interestingly, one of NHTSA's tests which is often relied upon in Cincinnati, the Horizontal Gaze Nystagmus Test (HGN), is generally inadmissible as evidence in Northern Kentucky. Also, the Preliminary Breath Test (PBT) can be used to show the presence of alcohol in Kentucky, however the specific number cannot be admitted into evidence and is of no evidentiary value. Not only are there numerous basis for suppression of blood alcohol tests, but there are certain protocols which the investigative officer must follow for the test to be admissible. The officer must be trained and certified to administer the blood alcohol test. The officer must witness the defendant for a period of 20 minutes to assure that no foreign objects are in the defendant's mouth. The officer must give the defendant an opportunity to contact legal counsel. After the test is completed, the officer must give the defendant the opportunity to have a second test (at defendant's cost) taken at the defendant's choosing; this is often a blood test at a hospital. Experienced DUI attorneys can advise when it is best to take a case to trial and when it is best to enter a plea to those, or perhaps, amended charges and avoid a trial. The attorney may also advise and discuss with the client the relative advantages of a bench (Judge) versus a jury trial. This decision may involve an analysis of the specific judge presiding over the case, the specific facts of the case, whether there is a video of the field sobriety tests as well as other factors. If you have been arrested for DUI, you should consult an attorney to discuss your legal rights. An experienced trial attorney will not be afraid to advocate for your rights and fight to have a case dismissed. In Northern Kentucky, contact Michael Bouldin at mike@bouldinlawfirm.com or call 859-581-MIKE (6453) to schedule a consultation.

Can I Get Arrested For Super Bowl Gambling?

Under state law in Kentucky, a person can be convicted of a D Felony of Promoting Gambling in 1st Degree if they have an enterprise for bookmaking with 3 or more persons and more than $500 is bet in any single day. The lesser offense of 2nd Degree is defined as A person is guilty of promoting gambling in the second degree when he knowingly advances or profits from unlawful gamling activity; this is an A misdemeanor. This is the crime a bookmaker may be guilty of if he is profitting from placing bets. You may even be subject to a charge of permitting gambling when, having possession or control of premises which he knows are being used to advance gambling activity, he fails to halt or abate or attempt to halt or abate such use within a reasonable period of time. Permitting gambling is a Class B misdemeanor, which is punishable by 90 days in jail. In reality, this is a crime very seldom prosecuted. Further, there is no crime for gambling so long as no one is profiting from the gambling (that is, no juice) and all money is paid between the participants. If you bet with your best friend, there is no crime. This is an analysis of Kentucky law and does not include federal law. Violations of federal law must involve multiple states. If you use a computer or telephone to place your bets, you are likely in violation of federal laws prohibiting gambling. If you have more questions, contact a criminal defense lawyer. If you have been charged with a crime in Northern Kentucky, you can schedule a consultation with Mike Bouldin by calling 859-581-6453 or mwbouldin@fuse.net.

I Got a DUI After the Super Bowl!

You aren't alone if you got a DUI on your way home from a Super Bowl party. In Northern Kentucky, as around the nation, the number of DUIs on the weekend of Thanksgiving, New Years, Super Bowl, Fourth of July and March Madness increases by approximately 30-35%*. Many party-goers forget that the police are patrolling the roadways with extra zeal during these times. There are generally two types of DUI arrests following a holiday. The first is the officer protecting the roads. The experienced police officer knows that there are more drunk drivers than usual and is looking to take the worst of the worst off of the roads. If you have had only a couple/few beers, this is the officer for you. If you perform well on the field sobriety tests and treat the officer with respect, you may very well go on your way without an arrest. The second type of DUI arrest is the officer looking for a DUI. The officer will look for any reason to stop the vehicle and any basis to support an arrest. Regardless of your actions, you will likely end up in jail. If you experience an officer like this, the best bet is to remain calm and respectful and call an attorney in the morning. Often these officers expect that the defendant will simply plead guilty the next day in court. If you are in this position, the arrest will often not hold up under the scrutiny of cross examination or at a suppression hearing. You may have noticed that I mentioned remain calm and respectful in any instance involving interaction with police officers. I've represented numerous defendants who were arrested primarily because they were argumentative or disrespectful to the police officer. While such an attitude may very well be righteous indignation, it is often viewed by the officer (and perhaps a judge or jury) as a sign of intoxication. Arresting officers are less likely to tack on additional charges, overcharge and may be more ameniable to negotiating a plea when the defendant was respectful. If you have been charged with a DUI, you should contact an attorney to discuss your rights and schedule a consultation. If you are looking for an experienced DUI attorney in Northern Kentucky or Cincinnati, contact Michael Bouldin in Covington at 859-581-6453 (MIKE) or mike@bouldinlawfirm.com. Know your rights, consult with any attorney today. *source: KSP and MADD website

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