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January 2012 Archives

What if I Refuse the Breathlyzer?

I know that I have posted much of this information in the past, but since it is so often asked, it doesn't hurt to tell people the results of a refusal of the breathalyzer in Northern Kentucky. All of the information herein is with respect to a first offense of DUI in Kentucky as well as a first time refusal, unless otherwise stated. First, the refusal itself is not a crime. That said, the refusal itself does mandate a license suspension for up to 120 days. The arresting officer has the right to request breath, blood or urine of the defendant. The Defendant has the right to request a second test at his/her own cost if they so choose. The defendant has the right to challenge the refusal. if challenged, that hearing is only to determine whether or not the person refused the breath test. If the challenge is made and lost, the suspension is generally 120 days and there are NO hardship driving privileges. If a person is convicted of the DUI, the refusal merges together with the DUI suspension. Assuming that the defendant does not challenge the suspension, the suspension is typically terminated at the conclusion of the case and the conclusion of the DUI suspension. If the defendant is acquitted, the prosecution may (but is not required) to certify the refusal. If this is done, the defendant will have a suspended license regardless of the outcome of the DUI. Many times the person charged with a first offense DUI will see that it is charged as an "Aggravated DUI." If the refusal is the only reason it is considered an aggravated DUI, the charge is technically incorrect. This is not a "get out of jail free" card. There are 6 aggravators for a second or subsequent DUI offense: having a blood alcohol concentration (BAC) over .15, driving the wrong way on a highway, going 30 mph over the speed limit, having an accident involving a serious injury, having a child under 12 in the vehicle and refusing the breathalyzer. This last aggravator only applies to second or subsequent offenses, not to first time offenders. An aggravator mandates double the minimum jail time, or a minimum of 4 days of incarceration on a first offense. If a person is very intoxicated, the refusal on a first offense may actually prevent the defendant from having to serve the mandatory jail sentence. The laws differ somewhat significantly in Ohio. Ohio mandates 3 days in jail for a first offense and doubles that time if aggravated. If you have been charged with a DUI or have refused the breathalyzer in Cincinnati or Northern Kentucky, contact an attorney to represent your interests. You can contact Michael Bouldin at mwbouldin@fuse.net or call 859-581-6453 for a consultation.

Are Parents Liable For Minors Drinking Alcohol?

Kentucky law makes the parents or property owners liable for minors who consume alcohol while at their house. Recently in Northern Kentucky the parents were courts are attempting to hold the parents resonsible where the minors actually brought the alcohol to the party. There are potential civil as well as criminal resonsibility for furnishing alcohol to minors. The new trend in litigation is the claim dthat it is insufficient for a parent to not provide alcohol, they must also be diligent in attempting to assure that no alcohol is consumed by underage minors. This is a deviation from traditional law. It is likely that, if upheld, it will apply to civil liability and probably not to criminal responsibility. The concern is that civil liability can cost hundreds of thousands of dollars in the event that a juvenile is injured or killed after consuming alcohol. Criminal responsibility is traditionally a minor misdemeanor, however there is also a trend to charge with greater responsibility such as manslaughter when the results are deadly. While this makes little sense to hold someone accountable only if there are dire consequences, the stakes are increased substantially. The safest, while likely unrealistic, bet is to not have children. If you do have teenage children, a parent may see the need for more stringent oversight of the activities and make diligent efforts to assure that no alcohol or drugs are present at your child's parties. Parenting is difficult; the current law does still mandate that negligence is required to hold a person civilly responsible. This area of law is every changing. The current trendn is to hold parents more responsible in an effort to curb teen drinking. Unfortunately, no matter what parents will do the teenagers will try to find a way to participate in adult activities. Also, no matter what efforts are taken, there will be children killed each year due to underage alcohol consumption. Parents can only do so much and the law supports those that use due care. Please submit any questions or comments. Unfortunatley it may take a couple of days to post due to my review in attempt to avoid publishing spam and advertisements.

I'm Fighting For Custody and Have Pending Criminal Charges!

As a practicing attorney in Northern Kentucky for over 17 years representing both criminal defendants as well as divorce and custody clients, I have seen a rise in the use of the criminal justice system as well as abuse/dependency/neglect filings in connection with divorce and custody disputes. Unfortunately, it is not uncommon for a person in the middle of a custody battle to also be facing criminal charges. As the stakes rise, so do many people's desire to win. At the same time, often a person's sense of right and wrong can be compromised, believing that the ends can justify the means. I have been involved in many cases where allegations of child abuse and/or sexual abuse have arisen in and during the course of a dissolution. Obviously, the child is the one who is damaged. Whether by a parent who commits abuse or by a parent who puts an idea, thought or convinces a child that they were subject to abuse (if they were not), both are damaging to the emotional and psychological needs of a child. These cases are also very difficult to defend because of the impossibility of proving that something did not occur. In representing a defendant accused of abusing a child, the case is even more difficult in that the most common advice to a criminal defendant is to remain silent; at least until trial. That said, it is virtually impossible to proceed in a custody action without the parent participating and testifying as a witness. It is precisely because of this that many criminal defense lawyers do not practice domestic relations law and can concern themselves only with protecting the client. It is also precisely why many domestic relations attorneys do not practice criminal law. Additionally, there are occasions that the parent may end up in 3 different courts: family court for divorce/custody; juvenile court for abuse/dependency/neglect charges; and criminal court to answer charges. As one of the few that practice a great deal in both criminal courts and family law courts, I can help the client assess the risks and benefits of proceeding through the multitude of hearings, consultations, conversations and trials. If you find yourself in the middle of such an unpleasant and difficult predicament, contact an attorney who can help. In Northern Kentucky, call me for a consultation.

How Does An Attorney Represent a Guilty Client?

Being an attorney in Northern Kentucky for over 17 years many people ask, "How can you represent someone that you know is guilty?" There are many simple answers, but my new favorite is: Everyone is Guilty. Of course, this is a smart-ass cop out with religous undertones, but the great majority of clients have made some poor decisions which have resulted in them needing an attonrey. Many clients talk and readily admit their guilt or complicity to a crime but they have been overcharged or simply want the best deal that they can get. Recently I represented 3 individuals charged with the same crime (drug trafficking) and with similar criinal history. All 3 had very different offers from the prosecutor if they would plead guilty; ranging from lenghty jail sentences to probation. It seemed unfair and I was able to resolve all three cases with none of the clients getting active jail sentences.* Obviously there are Innocent clients, but representing all criminal defendants is the best preparation for representing someone who is truly innocent and leading them to a not guilty verdict. Going hand in hand, another question often asked is, "How can you represent shoplifters, drunks, and DUI clients and also the murderers, drug traffickers, and rapists?" Along those same lines, the more often a criminal defense attorney appears in court, the better he can prepare for the next case. I have represented clients charged with virtually every section of the Kentucky criminal code and the majority of crimes in Ohio and Federal statutes. Getting to know the players: judges, prosecutors and other criminal defense attorneys, is essential in representing defendants. I generally suggest local counsel for the majority of criminal defense cases. Occasionally the police or prosecutorial involvement make it best to hire an out of town lawyer, but a local counsel can keep a beat on the courthouse rumors and aid in selecting a jury. Representing clients charged with criminal conduct is not easy. Years of experience combined with the right attitude is essential. This is often the most difficult time in a person's life when they are faced with criminal defense which can mean loss of liberty, jobs, family and can affect the rest of their life. While a person charged with a felony may be hoping to avoid a lengthy jail sentence, a person charged with shoplifting may see this as loss of employment and public humiliation. If you have been charged with a crime or are the target of a criminal investigation, you should consult with an attorney as soon as possible. In Northern Kentucky, you can contact me for an initial phone or email consultation at mike@nky-criminal-defense-lawyer.com or call (859)581-6453. *Results are not guaranteed and these cases may not be indicative of results which may be achieved in any specific case. They are, however, actual cases of selling prescription drugs in Kenton County, Kentucky.

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