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May 2011 Archives

What Do I Do If I'm Arrested?

This is one of the most often asked question on my blog as well as elsewhere on the internet. The simple answer is "LAWYER UP!" Contact a lawyer as soon as possible and retain counsel in order to protect your rights. Once you demand an attorney and refuse to talk, the police are no longer allowed to ask you questions. Remember: any thing that you say can and will be used against you in court. The most often used technique for crime solving is to gain an admission from the Defendant. Often people accused think that the police will treat them worse if they hire an attorney or are not cooperative. They also believe when the police say "it will be better if you just admit." While the police often do tell the judge that the Defendant was cooperative, they still charged the crime and the accused must face the consequences. Often, without the confession the prosecution cannot make the case and the charges are dismissed. Think about which you would rather have occur. The police know that the chance of a confession falls to almost zero once the accused hires an attorney. The police can, and do, often ask questions to trick the accused into making admissions. Even relatively innocuous statements can prove fatal to a case if they are later proven to be false. Often a jury will not believe anything that a Defendant has to say if they find out that he lied at any point in the investigation. The Fifth Amendment gives you the right to remain silent. It cannot be used against you if you assert this right. Use it! You have the right to an attorney. The fact you ask for counsel cannot be used against you. If you are unsure of your rights or if you have been charged with a crime in Cincinnati, Newport, Covington or Florence, contact Michael Bouldin to discuss representation. You can contact Mike at 859-581-6453 (581-MIKE) or email at mwbouldin@fuse.net.

Why Do So Many People Get Arrested for DUI on Memorial Day Weekend?

In Northern Kentucky as around the United States, the Memorial Day weekend is unofficial the beginning of summer. Many police agencies find holiday weekends to be a good time to kick start a campaign - often a campaign against driving while intoxicated. State troopers as well as local city police may set up roadblocks or increase patrols during these holiday weekends. Memorial Day, Fourth of July, St. Patrick's Day and New Year's Eve are among the most popular times for the police to increase their presence and to make more arrests than usual. If you are looking to avoid a DUI charge, do not put yourself in a position where they have evidence of drinking and driving. It is only illegal to drink and drive if you are impaired or if you have a prohibited blood alcohol level. Even though it is not illegal to drink (some) and drive, the simple act gives the police probable cause to do a more thorough investigation. Often police are looking to make an arrest, then gain conviction instead of really trying to ascertain if you are able to operate a vehicle in a careful manner. Whether the police pulled your vehicle over for a traffic violation, whether you were improperly stopped by police, whether you were stopped as part of a roadblock or DUI checkpoint or were involved in an accident, you should be aware of your rights as well as the legality of the stop and/or arrest. Many police also attend the Taste of Cincinnati event during Memorial Day weekend. Decelerated are overserved and over indulge. If you have been charged and/or arrested for DUI, driving while impaired, OVI (in Ohio) or DWI, you should know your rights and how to proceed with your case. For a consultation, contact Michael Bouldin at mike@bouldinlawfirm.com or call 859-581-MIKE, that is 859-581-6453.

US Supreme Court Overrules Kentucky and Allows Warrantless Search

The US Supreme Court this week upheld the search of a Kentucky man's apartment after police broke in without a search warrant because they said they smelled burning marijuana and heard sounds suggesting he was trying to destroy the evidence. The decision in Kentucky v. King overturned a Kentucky Supreme Court ruling in favor of the apartment resident, Hollis King, who was arrested after police entered his apartment and found drugs. Fourth Amendment doctrine holds that police must obtain a search warrant to search a residence unless there are "exigent circumstances." In the current case, the exigent circumstance was that, after they knocked on the apartment door, they heard noises they said suggested evidence was being destroyed. The Kentucky Supreme Court had held that police could not use the exigent circumstances exception because they themselves had created the exigent circumstance by knocking on the door. The US Supreme Court came to a different conclusion. In the past, the court has said police usually may not enter a home unless they have a search warrant or the permission of the owner. As Justice Alito states, "The 4th Amendment has drawn a firm line at the entrance to the house." Justice Samuel Alito wrote the opinion for the 8-1 majority, stating that people have no obligation to answer the door when police knock or to allow them to come in if they have opened the door. In such cases, police would have to persuade a judge to issue a search warrant. Although Justice Alito wrote this, the warrantless search was upheld. According to police, the residents started scuttling around suspiciously upon hearing police announce their presence. "Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame," Alito wrote. Justice Ruth Bader Ginsburg dissented, arguing that in ruling for the police, the court was giving them a way to get around the search warrant requirement in drug cases. "Police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant," she wrote. In this case King was not the target of police. Lexington police had set up a controlled drug buy on the street outside the apartment building, but when they attempted to arrest the suspect, he fled into the building. When police arrived in the hallway, the suspect had vanished, and all police saw was two apartment doors. When they smelled the odor of pot coming from King's apartment, they chose that door. The original suspect was in the other apartment and was later arrested. The ruling was not a final loss for King. The justices said the Kentucky state court should consider again whether the police faced an emergency situation in this case. Ginsburg, however, said the court's approach "arms the police with a way routinely to dishonor the 4th Amendment's warrant requirement in drug cases." She said the police did not face a "genuine emergency" and should not have been allowed to enter the apartment without a warrant. If you have been arrested in Cincinnati or Northern Kentucky, contact Michael Bouldin at mike@bouldinlawfirm.com or 859-581-6453 (581-MIKE). You should know your rights and potential defenses to criminal charges.

I Was Charged With DUI But Not Driving?

In Kentucky there are a number of factors that the court will consider to determine if a defendant was "operating" a vehicle. A person can be convicted of DUI if they were operating or in physical control of the vehicle. The case of McCreary v. Commonwealth, 2007-CA-94 reaffirmed the decision in Blades v. Commonwealth, 957 S.W.2d 246 (Ky. 1997) and Wells v. Commonwealth, 709 S.W.2d 847 (Ky.App. 1986), which set out several factors a trial court should consider in making that determination: The court should consider all of the following when determining operation or physical control: (1) whether or not 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. Another major factor in the cases where the Court of Appeals overturned convictions was the presence of alcohol in the vehicle and the time the vehicle was occupied but not in operation. In those cases where the conviction was overturned, the Defendant generally had alcohol on his person so that a jury could not infer that he had consumed the alcohol prior to driving. There may even be an inference, and often was testimony, that the alcohol was consumed after stopping the vehicle. The Court of Appeals did not overturn convictions in cases of accidents and other stops which were made close in time to operation and where there was no alcohol found in the vehicle. As evidenced by the cases, the facts of each specific case are very important to the ultimate decision. The Court of Appeals in Blades overturned a previous decision; the new decision allows a jury to make reasonable inferences regarding the timing of operation and the timing of drinking/intoxication. If you have been charged with operating a vehicle while under the influence, or commonly DUI, you should consult with an experienced criminal defense attorney to understand your rights and potential defenses to the charges. In Northern Kentucky, contact Michael Bouldin at mike@bouldinlawfirm.com or call 581-MIKE (859-581-6453) for consultation.

What If I Don't Like My Public Defender?

Throughout the United States one of the rights of an accused is the right to an attorney of your choosing; and if you cannot afford an attorney for one to be appointed for you. This is based on Miranda which used it as a right of all persons charged with crimes in the U.S. In Kentucky, that same right exists. But let's break this down further. You are entitled to have any attorney you choose, provided that you pay for that attorney. Many people cannot afford an attorney or cannot afford the attorney they want. For example, you might say that you want Elliot Ness or Perry Mason. Perry may be busy and Elliot may be out of your price range. Private attorneys can charge whatever fee they want for any type of case. It is up to the individual to find an attorney which they can afford. If the person cannot afford an attorney, the court may appoint a public defender (PD), or more appropriately termed public advocate, in the Commonwealth of Kentucky. The Court must first consider the nature of the offense, the general fee in the area for representation on this type of offense and if the defendant qualifies for appointment of a PD. The Defendant will generally have to fill out a financial disclosure statement so the court can determine if they have sufficient financial resources to hire their own attorney. In Northern Kentucky, the Court often will also assess a public defender fee to the Defendant. This money is paid to a general fund, however it is important to note that the Defendant will, in effect, pay for his lawyer even if he/she is appointed. If a Defendant is unhappy with any lawyer for any reason, the Defendant is free to hire a different attorney at any time. The Court may very well hold that attorney to previously established time frames to consider plea offers and/or stick to trial dates. It is generally a bad idea to hire a new attorney the day prior to a court trial. If the Defendant is appointed a PD and he is disappointed, the Defendant can request a different attorney be appointed. The Court alone will determine if there is a problem requiring a new attorney or if the attorney already appointed is providing an adequate defense. If you are a defendant, you should know your rights. If you can afford private counsel, make an appointment to discuss with an experienced criminal defense attorney. If you are unhappy with your present attorney, contact another one to check your options. If you are in Northern Kentucky and wish to consult, contact Michael W. Bouldin at mike@bouldinlawfirm.com or call 859-581-6453 (859-581-MIKE).

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