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February 2017 Archives

New Marital Property Case in KY

The Kentucky Supreme Court issued a decision on a new case regarding determination of non-marital equity claim in real estate wherein money was given by one party's parents to put as down payment on a home. Here is a summary: NON-MARITAL PROPERTY LAW AND NOT TRANSMUTATION: Husband's parents gave him alone money to put down on a house. So far, that sounds like a non-marital claim. But it all went awry for this Husband. The deed to the house was put in both names, and Wife testified that Husband agreed that the house would be "half hers". So the Circuit court (Owensboro, so no family court then; they just finally got family court effective 1-1-2017), and both levels of our appellate courts, held for the Wife. The decision at the Supreme Court was a 4-3 vote, with a dissent by Justice Noble. The Supreme Court continues to hold that Kentucky is still not a "Transmutation" state, and continued its long-standing position that non-marital property cannot be transmuted to marital, like in many other states. Rather they re-emphasized the "Source of Funds Rule" and the law that title of an asset does not determine the marital or non-marital nature of assets. But, similar to the principles of transmutation, the court held "...during marriage either spouse may 'gift' his or her nonmarital funds to the parties' marital estate including by expending those funds, as here, on the marital home with express representations to the other spouse that the home will be their joint, marital property." DIVIDING HOUSEHOLD GOODS BY LOT-HOW NOT TO DO IT: There are many ways to divide household goods. Don't do this: list all of the items out, put each item on a folded-up piece of paper, throw the pieces of paper all in a box, alternate picks from the box, and you get whatever you pull out. This was decided not to be an "equitable division" of these assets, because one party could have bad luck and draw out a lot of lower value items. For more inquiries regarding divorce law in Kentucky, see my BLOG. If you need to speak with an attorney, call the Bouldin Law Firm. For consultation or representation, contact Mike@bouldinlawfirm.com or call 581-MIKE, 859-581-6453.

Portable Breath Test - PBT in DUI

PBT is the abbreviation for Portable Breath Test.  This is the roadside breathalyzer that officers often use when evaluating a person for possible DUI.  It is a handheld device which can generally be purchased on the internet for $80-$200.  Many patrol officers or DUI specialists keep a PBT to check the breath alcohol of motorists. Q: IS THE PBT ADMISSIBLE? A: Guarded, NO.  The PBT is admissible only to show the presence of alcohol, however the actual results of the PBT are not admissible.  This is because these handheld devices are not certified, maintained, nor are records kept in compliance with DOT and do not have the same trustworthiness as the more thorough and much more expensive Intoxilyzer machines which are at the jail and/or the police station.  Additionally, the statute requires a 20 minute observation before giving someone a breath test which may be admissible.  The purpose of the observation is to assure that there is no mouth alcohol and that the user does not ingest or put anything into his/her mouth.  The roadside test does not include the 20 minute period, nor does the officer generally read the Implied Consent Form before administration.  Either of these would also render the test results inadmissible in a criminal trial. Q: WHAT IF THE PERSON ADMITS TO DRINKING A: If the driver has admitted to drinking, then the PBT is generally not admissible for any purpose.  If the sole purpose is to show the presence of alcohol, once the driver has admitted drinking then there is no other purpose to admit the PBT into evidence. Q: SO WHAT IS THE USE? A: Even though the devices are not in compliance, they are actually quite good at determining the level of alcohol in someone's blood (breath).  The newer models can detect if there is too much mouth alcohol, which can affect the reading.  While not as precise as a blood test or breath test using an Intoxilyzer, the results from the PBT are generally within a close range.  Many officers only use this as a last Field Sobriety Test to either confirm that the person is over the limit if they have failed or are questionable after the field test or to assure that they are under if they have passed other field tests. Q: WHAT SHOULD I DO? A: If you are reading this, it is probably too late to determine if you should take the PBT or not and you should contact an attorney to defend you on the DUI/OVI charges.  That said, often the decision should be based on how well you did on the field tests and/or how much alcohol you have consumed.  If you are close to under the legal limit of .08, a reading under would convince the officer to allow you to leave without a DUI arrest.  If you are over, a test may give you greater input into whether you should consent or decline a formal breath test when you return to the station or jail. If you have further questions about the PBT, you can email mike@bouldinlawfirm.com. If you need consultation and/or representation, contact Mike or schedule an appointment by calling Bouldin Law Firm at 859-581-6453 (581-MIKE).

Get Even in Divorce

Question: Can I get even in divorce? Answer: Hmmmm. This depends greatly upon your definition of getting even. If your definition of getting even means: Getting half of all marital assets. Getting joint legal custody and at least half of the time with your children. Getting return of premarital and non-marital items. If this is getting even, then you should be able to get even through the process of divorce or dissolution. Gone are the days of women "taking their husband to the cleaners" through the divorce process. If your spouse cheated on you, gave you VD and blew all of your money at the casino and getting even is a swift kick to the groin, taking all of his money and getting full custody, you may be in for disappointment. WHY???? First, Kentucky is a no fault divorce state. This means that the reason for the divorce has no impact on division of assets, custody of children, child support or assignment of debt. There are a few exceptions: for example, if your husband didn't have a gambling problem before the divorce but ran up $10,000 of debt in the month preceding the divorce due to gambling, he may be assigned the greater portion or all of that debt. Also, many people believe that they should be entitled to custody of the children if their spouse is caught cheating, or being unfaithful in the marriage. Unless it can be shown as a significant and direct impact on the children (he took the kids to meet his Backpage date), it is likely inadmissible as evidence in the case. If you are in a bad marriage, get out. For consultation and representation, contact Michael Bouldin at 859-581-6453 or email mike@bouldinlawfirm.com.

Drug Trafficking Arrest

Hire an experienced and competent criminal defense attorney following your arrest. If you have been arrested for trafficking, selling or planning to sell, drugs you need to hire an experienced criminal defense attorney.  Drugs may include marijuana, cocaine, heroin or prescription medication and sale can be anything from one pill to kilos of cocaine. If you are charged with trafficking, it will almost undoubtedly be a felony charge.  The defendant will first appear in district court (municipal/room A in Ohio) for arraignment.  Soon thereafter a preliminary hearing will be scheduled.  this is a probable cause hearing and the court will almost always find that probable cause does exist and refer the case to the Grand Jury.  In Kentucky, this is within 10 days if incarcerated or 20 days if out of jail.  The time may be waived if the attorney wants more time to investigate prior to the hearing. Following the preliminary hearing, the case is heard by the Grand Jury.  the defendant does not appear or present evidence at this hearing which is conducted by the prosecutor.  The Grand Jury in Kentucky generally returns an indictment within 60 days.  This occurs within 2 weeks in Hamilton County.  Ask your attorney if you have questions about time limits and meanings. After being indicted, the defendant will appear in the Circuit Court (Common Pleas in Ohio) for an arraignment on the indictment.  Following arraignment, discovery begins and the lawyer can find what evidence the state has against the defendant and start discussing the chances at trial. Often plea negotiations begin following discovery as well.  The attorney can seek a n umber of alternatives and, like all cases, the negotiations improve if the prosecution case is weak.  Talk to your counsel about the case and what are good resolutions. Being able to navigate though the first court system, as well as federal versus state courts, is essential.  Talking about bail and what motions are appropriate is important to the client and how the judge perceives the defendant.  For a consultation and representation, call Michael Bouldin at Bouldin Law Firm at 859-581-6453 or email mike@bouldinlawfirm.com.

Need Help for Arrest?

HELP, I GOT ARRESTED.  These are often the first words out of the mouth of a person facing their first criminal charge.  WHAT DO I DO NOW?  This may be for a DUI, drunk and disorderly, intoxication, or other charges that are probably out of character for the defendant.  This can be a benefit to the defense and help with negotiating a favorable resolution. If you made a mistake, do not compound it by making a second mistake of trying to handle it yourself.  Most cases will get a much better resolution with the aid of an attorney.  An attorney can walk you through the steps and tell you what to expect.  The attorney also has direct access to the prosecutor and can discuss your case in private and often outside of the courtroom.  Most often, prosecutors will not do this with unrepresented defendants. The attorney also knows what should be expected from your case based on similar and past experiences.  For example, if this is your first misdemeanor and it is non-violent and fits certain parameters, the attorney may be able to get you into a diversion program.  A diversion program generally allows the defendant to have the case ultimately dismissed and expunged from their criminal record.  There may also be other programs or options available for resolution. Diversion programs vary by state and the program differs significantly whether the charges are a misdemeanor or a felony.  Your attorney can discuss what will be expected as well as the costs and time considerations for the program. If you have been charged, hire a lawyer who is experienced in criminal defense and/or DUI defense.  For more information on your charge, visit by website @ link.  For consultation or representation in Northern Kentucky, call Bouldin Law Firm and schedule an appointment with Michael Bouldin.  Call 859-581-6453 or email mike@bouldinlawfirm.com.

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