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October 2011 Archives

Can I Get A DUI If I Am Asleep In My Car?

In Kentucky there is some very good case law which allows for a not guilty verdict if a person is asleep while in the vehicle. I recently won an acquittal* for a driver who was asleep (Commonwealth claimed passed out) behind the wheel while awaiting an accident to clear in front of him. The driver pled guilty to Improper Parking because the vehicle was in park on a state highway. The proseuction is seldom, if ever, going to amend this charge and the only way to be found Not Guilty is to proceed to trial. KRS 189A.010 states that a person shall not operate or be in physical control of a motor vehicle. . . A summary of the pertinent case law follows: Pence v. Commonwealth 825 SW2d 282 (Ky. App., 1991) Defendant was sitting behind the wheel and admitted that he had been operating the vehicle; court found "there is still an absence of proof that the appellant operated his vehicle while intoxicated." Wells v. Commonwealth 709 SW2d 847 (Ky. App., 1986) Defendant found asleep in driver's seat of vehicle parked in parking space in parking lot with engine running but with transmission in neutral and parking brake engaged. ". . . there was no evidence that he had driven or otherwise operated the vehicle while intoxicated to its location. It was also not shown that he planned to operate the vehicle. That inference is negated by the facts that the transmission was in neutral and the parking brake was engaged. Most importantly, he was asleep at the time. 'A person sleeping is seldom operating anything. Pomeroy, supra at 100. The only act clearly demonstrated was that the appellant started the van's engine. When viewed in light of the other circumstances, we do not believe that merely starting the engine in the van was an exercise of actual physical control. . ." People v. Pomeroy, 355 N.W.2d 98 (S. Ct. Mich., 1984) (attached). Case cited by Wells wherein defendant was asleep and slumped over the steering wheel of a car which was parked. Defendant's head was on the horn, standard transmission in neutral, motor and heater were on. Court found that "under any reasonable interpretation of the phrase "operate a vehicle", a person sleeping in a motionless car cannot be held to be presently operating a vehicle while sleeping." The court further noted, "A sleeping person is seldom operating anything." Harris v. Commonwealth 709 SW2d 846(Ky. App., 1986) Defendant drank bottle of whiskey while sitting behind wheel of truck and fell asleep with motor NOT running and turned to the "on" position. "These facts do not show that he exercised any control over his truck while intoxicated. . .we do not find that the appellant was 'operating' his truck. . ." Factors in determining whether one was exercising that degree of actual physical control: (1) whether or not the person in the driver's seat was asleep or awake; (2) whether or not the vehicle's engine was running; (3) the location of the vehicle and any circumstances showing how the vehicle arrived there; and (4) the intent of the person behind the wheel. McCreary v. Commonwealth 2007-CA-94 (Ky. App., 2008). Defendant was found in driver's seat with engine turned off and keys in front pocket. Defendant appeared to have been drinking and refused all FST and breathalyzer. Appeals court overturned conviction stating that refusing to grant the Motion for Directed Verdict was improper. Decision based that that no evidence supports a reasonable inference that McCreary was operating or in physical control of a motor vehicle. Newman v. Stinson 489 SW2d 826 (Ky. App., 1972) Old case in favor of prosecution. Defendant "nearly passed out" behind the steering wheel which had been stopped at street intersection with motor running was in physical control. As you can see from the relevant cases in Kentucky, a person who is asleep does stand a chance of an acquittal on a DUI charge. If you have been charged with DUI, contact Michael Bouldin for a consultation at 859-581-6453 or email at mike@bouldinlawfirm.com. * Note: Boone County Kentucky case tried 10/20/2011.

How Can I Expunge a DUI?

Kentucky law does not specifically allow for expungement of a DUI, but does not prevent these cases from being expunged. Why then would a criminal defense attorney waste time and space on a blog about expungement of a DUI if there is no law that allows for expungement? Good question, I might say. The reason that I am utilizing this blog to discuss this is to answer a question that I get weekly. I am hoping to provide good advice to prospective clients and reduce the high volume of phone calls with good people hoping to expunge their DUI records. Kentucky law currently allows for expungement of misdemeanor convictions if you have had no criminal history and no history subsequent to the conviction for a period of 5 years. Kentucky also allows for expungement of both misdemeanor and felony cases that were dismissed or resulted in acquittals. Those may be filed 60 days after the case is dismissed. Those charged are highly encouraged to file for expungement after the case is dismissed. You can contact an attorney to assist you in filing for and obtaining an expungement. Unless you participated in a felony diversion program, felony convictions are not eligible for expungement under current Kentucky law. If you wish to change the law to allow for felony or DUI expungements, contact you state senator or local state representative. Tell them why it is important to allow for persons convicted of DUI to allow their records to be clean after a period of time. If you have criminal questions or wish to consult with an attorney about a pending case or expungement, you can contact Michael Bouldin at mwbouldin@fuse.net or call 859-581-6453 (581-MIKE).

Is DUI a Felony? Is DUI a Crime?

In Kentucky DUI is officially a traffic offense. The potential penalties as well as the process is criminal. If you are looking at for an attorney, a criminal defense attorney handles DUI cases. A DUI lawyer is nothing different and Kentucky does not recognize a specialty for criminal or DUI law. DUI cases are prosecuted in Northern Kentucky exactly the same as misdemeanor charges. The first appearance is an arraignment in which the Defendant can only plead guilty or not guilty. If a guilty plea is entered, the judge will sentence the Defendant at that time. If a defendant pleads not guilty, the case is generally set for a pretrial conference and then later for trial. The pretrial conference is an opportunity for the Defense attorney to make sure that he has all of the discovery and other information to prepare for trial. Generally, the prosecution will also make an offer on a proposed sentence if a guilty plea is entered; this is called a plea agreement. The prosecutor may also offer to either reduce or dismiss charges in exchange for a guilty plea to one or other charges. An experienced attorney will not only know how to negotiate, but will be able to advise if a plea offer is good or bad in the given circumstances. Kentucky DUIs stay on your license forever, however only those within a 5 year period become enhanceable. A first offense DUI in Kentucky is punishable by 48 hours - 30 days in jail and/or $200-500 fine, mandatory license suspension 30-120 days and DUI alcohol evaluation and treatment. A second offense is 7 days - 6 months in jail, increased fines and minimum 12 month license suspension; third offense is 30-360 days in jail and a fourth offense is a class D felony, punishable by 1-5 years in prison. If you have been charged with DUI or any other crime in Northern Kentucky, contact Michael Bouldin at 859-581-6453 or mwbouldin@fuse.net for a consultation. Whether for a first or subsequent DUI, the penalties and costs can be extreme. An attorney will not only protect your rights, but can assist in guiding you through the process and advising how to best proceed.

How Would Amanda Knox's Case Have Been Different in Kentucky?

If the Amanda Knox case had been tried in Northern Kentucky, would the result have been different? Well first, any jury could have found her guilty or not guilty, so the location is somewhat irrelevant. There is no question that the appeals process would have differed by who would have presided as well as the speed in which the appeal was completed. The judge who presided at the trial of Amanda Knox and her former Italian boyfriend, Raffaele Sollecito, has reportedly said they may be guilty after all. Speaking only two days after he and his fellow judges handed down a full acquittal on appeal, Judge Claudio Pratillo Hellmann said, "the court's verdict is the result of the truth that was created in the proceedings. But the real truth may be different. They may be responsible, but the evidence is not there." Hellmann's remarks appeared odd because the other judges could have reached a less clear-cut acquittal. Italian courts have ruling options in which the appellants are acquitted for lack of evidence - a verdict similar to "not proven" in Scottish law. In the United States, the verdict is Not Guilty, regardless of whether they are truly not guilty or if the prosecution did not present sufficient evidence to prove the case beyond a reasonable doubt. In Kentucky, the trial judge is not the same person and does not sit as an appellate judge. The appellate system of each jurisdiction moves at various rates. A typical appeal to the Court of Appeals of a Circuit Court Judgment takes about one year. Under Kentucky law, the trial may have occurred much sooner if the Defendant would have requested a speedy trial. Persons charged in the United States enjoy rights which are guaranteed by the US Constitution are not guaranteed throughout the world. Those rights include: right to jury trial, right for the prosecution to prove guilt beyond a reasonable doubt, right to appeal. Also included is that a jury must be of peers and that they not have bias or preconceived ideas about the case. If you have been charged with a crime in Northern Kentucky, you should consult with an attorney as soon as possible. If you would like to discuss your charges and potential defenses, you can arrange to talk with attorney Michael Bouldin by calling 859-581-6453 or email at mike@bouldinlawfirm.com for more information.

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