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March 2011 Archives

Is Translation Necessary for Miranda Rights to Be Given?

The United States Supreme Court has ruled in United States V. Garibay that the waiver must be knowing and voluntary. The court suppressed statements due to a combination of lack of IQ to understand and inability to speak the language. As such, it is fair to interpret that it would be necessary for the Miranda rights to be translated for the defendant in order for teh waiver to be consensual. The actual question posed was "Can the Police read Miranda rights in English then use a translator to interpret a confession." In this scenario, it would be illogical for the police to be permitted to use the confession when the rights were not understood by the defendant. The Miranda requirement is that the defendant be apprised of his rights and make a knowing waiver of these rights. If he does not speak English and the only Miranda warnings were given in English, he could not have knowingly waived these rights. In practicality, the police should and often do have the interpreter first translate the defendant his rights. Many police agencies have the Miranda warnings in writing and also have at least a Spanish translated version for the defendant to sign. If you have a question regarding your rights, whether the police gave a fair Miranda ruling, and/or have been charged with a crime in Northern Kentucky and you have further questions, you may contact attorney Michael W. Bouldin at mike@bouldinlawfirm.com or 859-581-6453 (581-MIKE).

What To Do If Charged with Possession of Controlled Substance

In Kentucky, a possession of a controlled substance can be a number of different charges, ranging from misdemeanor to felonies. Typically if it is a misdemeanor, it is charged as Possession of Marijuana (POM) or the lesser charge of possession of Controlled Substance (PCS), 2nd Degree. The normal charge of PCS, 1st Degree is for the possession of heroin, cocaine, crack, methamphetamin, and any other narcotic drug. Misdemeanors are typically reserved for non-narcotics. There are many programs which are utilized to treat the person charged with PCS. For first time offenders, the primary goal is generally to assure treatment and rehabilitation of the offender. There is often a push to keep the offender out of the criminal system, which is also the goal of a good criminal defense attorney. Defenses may include an improper search and seizure, as well as challenges to the identity of the specific substance or the location of the illegal substance. More often, the defense rests with how to most effectively handle the defendant to assure there are no future problems as well as keeping the defendant out of the system, thereby saving time and money to the state. Also, some counties may reduce the initial charges if only a trace amount of the illegal substance was found on the defendant. The state must be able to test the substance to confirm its identity for trial. A careful consideration should be weighed if the defendant is given the opportunity to plead guilty and be placed on Felony Diversion. This is a very good alternative for some defendants, however if the defendant fails, the actual jail time may be considerably longer than if negotiated at the initial plea. Also, felony diversion may have a lasting impact on some areas for future employment and the defendant should consider the restrictions during the term of diversion. If you have been charged with Possession of a Controlled Substance, you should contact an attorney in your area. In Northern Kentucky, contact Michael Bouldin at 859-581-6453 or mike@bouldinlawfirm.com for a consultation.

What Does Receiving Stolen Property Mean?

In Kentucky the crime of Receiving Stolen Property is defined in KRS 514.110. A person is guilty of receiving stolen property when he receives, retains, or disposes of movable property of another knowing that it has been stolen, or having reason to believe that it has been stolen, unless the property is received, retained, or disposed of with intent to restore it to the owner. Furthermore, the possession by any person of any recently stolen movable property shall be prima facie evidence that such person knew such property was stolen. Most often this charge is used when the police suspect, but cannot prove, that the defendant stole something. The charge of Receiving Stolen Property does not necessitate that the prosecution prove that you stole it, only that you received it and knew or should have known it was stolen. As evidenced by the definition, it is a much easier case to obtain a conviction. Whether a defendant stole the item(s) or was given the items makes them no less guilty of this charge. The value of the item(s) provide for the applicable degree of the criminal charge. If the item(s) were less than $500, the charge of receiving stolen property is a misdemeanor. If the value is between $500 and $10,000, the charge is a D Felony, which is punishable by 1-5 years in prison. If the value is greater than $10,000, the charge is a C Felony, punishable by 5-10 years in prison. Other specific items: firearm or anhydrous ammonia are an automatic D felony regardless of the value and if the anhydrous ammonia is used to manufacture crystal meth, a smokeable form of methamphetamine, it may be considered a B Felony (10-20 years). If you are charged with Receiving Stolen Property, you should hire a criminal defense attorney as soon as possible. First, anything that you say to the police can and will be held against you. There are also additional concerns which should be discovered as soon as possible in the case. The preliminary hearing is a good time to try to establish the value of the stolen property. Remember, if the value can be established under $500, this is a misdemeanor instead of a felony. If you have been charged with Receiving Stolen Property or any other crime in Northern Kentucky, contact Michael W. Bouldin for a consultation. You can contact Mike at mike@bouldinlawfirm.com or 859-581-MIKE (581-6453). Mike has been representing criminal defendants in Florence, Burlington, Covington, Newport and other areas in Northern Kentucky for over 15 years.

What Is Difference Between Assault and Domestic Violence?

In many cases they can be one in the same. In Kentucky, however, domestic violence is generally the issuance of an EPO (Emergency Protection Order) and may later be converted to a DVO (Domestic Violence Order). This is technically a civil hearing and the burden of proof is less than criminal hearing. There is also no ability of a judge to issue jail time at the hearing. Assault, on the other hand, is a criminal offense which may be a misdemeanor or a felony. If you have been charged with assault, you are likely facing jail time as well as fines, anger management classes and counseling. In Kentucky, a misdemeanor assault is often referred to as Assault 4th Degree and may also have the Assault - domestic violence attached to the citation. In some cases a defendant may be charged with either Assault or Domestic Violence. If there are visible injuries to the victim, many defendants will be charged with both. This is NOT double jeopardy since one is a civil action and the other is a criminal charge. Only in the assault trial is the defendant facing fines and incarceration. An experienced attorney may use one of the cases to benefit the other. Generally the EPO hearing will be held far in advance of a criminal trial. The victim will be requied to testify at either hearing and a defendant cannot be forced to testify if he is facing criminal responsibility. If there are injuries, the facts may be brought out at the EPO hearing and later used to cross examine a witness at a criminal trial. Both EPO/DVO and criminal Assault have penalties which infringe upon yoru constitutional rights. Those include who a defendant may be around, where they may go, the right to live or be in a certain place, the right to own, possess or carry firearms and the likelihood of harsher treatment if future violations occur. If you have been charged with assault or are facing an EPO/DVO trial, you should contact an experienced attorney in your area. In Northern Kentukcy, contact Michael Bouldin at 859-581-6453 (MIKE) or mwbouldin@fuse.net for more information and consultation.

Can I Get A DUI On A Golf Cart?

Yes, in Kentucky if you are driving a golf cart you may be charged with DUI. There are, however, many opportunities that an experienced criminal defense attorney may have in having the charges reduced or dismissed. KRS 189A.010 begins that, "a person shall not operate or be in control of a motor vehicle anywhere in this state. . ." Note the news from Brooksville, Florida read in the Miami Herald: BROOKSVILLE, Fla. -- A central Florida man was charged with driving under the influence after authorities say he was caught driving a golf cart the wrong direction on a divided highway. The Hernando County Sheriff's Office reports that a deputy stopped 36-year-old Eric Perez shortly after midnight Saturday. The cart had no lights, and Perez reportedly smelled like alcohol. After failing a series of sobriety tests, Perez was arrested and charged with DUI. When tested at the jail, his blood alcohol level was determined to be 0.251 and 0.242 percent. Florida law considers a driver impaired at 0.08. The golf cart was returned to Frontier Campgrounds in Brooksville. Deputies made arrangements for Perez's passenger to get home. Interestingly, a close reading of the headlines show that this Floridian was traveling on a highway, going the wrong way, and he had a passenger who reportedly was more intoxicated than Mr. Perez. While I have no knowledge, a guess would have the men headed out for a beer run and likely the golf cart was stolen. If you have been charged with DUI on a golf cart or elsewhere, consider hiring an experienced criminal defense attorney who is familiar with state laws and the local bar (pun intended). There are some defenses unique to operating a golf cart in addition to the multitude of defenses available for any DUI. If you have been charged with DUI in Northern Kentucky, contact Michael W. Bouldin at 859-581-6453 (MIKE) or mike@bouldinlawfirm.com for more information and advice.

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