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November 2010 Archives

How Soon Should I Retain An Attorney?

Many criminal defendants wait until the last minute to retain an attorney. Whether due to financial straights or a mistaken belief that the case will simply "go away," waiting before hiring an attorney is generally a mistake. In Kentucky, if a person is not represented by counsel, the investigator may continue to ask questions of a suspect or a criminal defendant. The more questions which a defendant answers, the more likely he is to make a mistake. Often in felony cases there are two other reasons that a defendant may wait before hiring counsel. If a case is merely being investigated, the defendant may believe that the investigation will stop before he is charged. While this is certainly possible, the likelihood is that someone will be charged with the crime. Further, a common investigative tactic is to tell a suspect that they are not, in fact, a suspect or a target of the investigation. This is often a way to encourage the person to talk to the authorities in hopes that they will admit or give information which will aid in their conviction. This is particularly true in Federal and other major felony investigations. The second reason in major cases that criminal defendants fail to promptly hire counsel is the time lapse between arrest and indictment. If a person is charged with a felony in Northern Kentucky, they have 3 days before which they must be brought before the court and bond is set. After that, unless waived, they are entitled to a preliminary hearing within 10 days if they are incarcerated and 20 days if they are released on bond. Once the preliminary hearing is concluded, there is generally a delay in presenting the case to the Grand Jury and for formal indictment. This delay is often 30-60 days in Northern Kentucky. If a defendant is incarcerated, they must be released from custody if no indictment is forthcoming within 60 days. Due to this Criminal rule 5.22, most indictments are brought within 60 days regardless of whether the defendant is incarcerated or not. This delay before the arraignment lulls defendants into believing that they have time to waste prior to hiring an attorney. Involving an attorney can do a number of things, including: investigation into the facts and strengths of the case, negotiating a plea and possibly having the felony charged dismissed or reduced, protecting the rights of the suspect/accused, amending the bond, and preparing for trial. Further, while a retainer is generally required to hire a criminal defense attorney, many attorneys will allow the retainer to be paid over this time period. If you have been charged with a crime in Northern Kentucky or Cincinnati and need more information, please contact Michael W. Bouldin at [email protected] or call 859-581-MIKE (6453).

Am I Entitled To A Second Blood Test If Arrested For DUI?

Yes. If you are arrested for DUI in Kentucky you will generally be asked to submit to a drug and/or alcohol test. This may be by a breath, urine or blood sample. Kentucky law provides a presumption that you will submit to the test chosen by the officer. If a defendant has submitted to the test chosen by the officer, the officer must make reasonable accommodations to provide a second test if requested by the defendant driver. Pursuant to KRS 189A.103(7), police officers must make reasonable efforts to accommodate a defendant's request for an independent blood alcohol test performed by a person of his or her own choosing following the defendant's submission to all testing requested by police. The Courts in Commonwealth v. Long 118 S.W.3rd 178 (Ky. App. 2003) set forth five factors which the court should consider to determine if the officer made "reasonable" efforts. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test.   Factors to be considered include, but are not limited to, the following:  (1) availability of or access to funds or resources to pay for the requested test;  (2) a protracted delay in the giving of the test if the officer complies with the accused's requests;  (3) availability of police time and other resources;  (4) location of requested facilities, e.g., the hospital to which the accused wants to be taken is nearby but in a different jurisdiction;  (5) opportunity and ability of accused to make arrangements personally for the testing. In Northern Kentucky, the police will generally arrange for transportation to the local hospital, St. Elizabeth. The defendant must have the ability to pay for the test. It is generally wise for an individual who has tested over the legal limit to request the second test. If you have been charged with a DUI in Northern Kentucky and wish to consult with an attorney, contact Michael W. Bouldin at [email protected] or 859-581-MIKE (6453).

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