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January 2011 Archives

Is There Any Way to Suppress a DUI Breath Test?

There are many ways that a breath test / breathalyzer may be suppressed. In Northern Kentucky, the Judges are accustomed to having to make suppression decisions in many different types of cases as well as for many reasons. If you were arrested for DUI and given a breath alcohol test, you should see if the test was valid and if it is admissible in court. In consulting with an attorney, it is wise to discuss various ideas for suppression of the breathalyzer. The first basis should be, "Did the officer have probable cause to stop your vehicle?" If the officer cannot state a reasonable articulable suspicion for stopping the vehicle, the Court should suppress the stop and anything that comes after the stop. This includes any field sobriety tests and any breath test. Generally any traffic violation or an accident is probable cause to investigate. If there was probable cause, there are a number of requirements that an officer must establish. The officer must witness you for 20 minutes; this is referred to as the observation period. The purpose of the observation is to assure that no foreign objects are placed within your mouth. If you chew gum throughout, or place a Listerine strip, the test results can be invalid. By the way, Listerine strips are mostly alcohol. The officer must also give you the opportunity to contact a lawyer. While this may be difficult, especially if you were arrested at 2:00 a.m., the opportunity must be granted. Additionally, the breathalyzer machine should be working properly and assured regular maintenance. Northern Kentucky generally does a good job at regular maintenance, but it should be checked. These are only a few of the more regular basis for suppression. Breathalyzer results have been suppressed due to blood in the defendant's mouth, cellular phone interference, refusal to allow a second test/blood test at the request of defendant, and many other basis. If you have been arrested for DUI, you should consult with an attorney to make sure your rights are upheld. If you need a consultation in Northern Kentucky, contact Mike Bouldin at [email protected] or call 859-581-6453 (MIKE).

Can I Get An Expungement?

In Northern Kentucky many people have questions regarding expungement rights and procedures. The court allows for expungement of certain criminal convictions as well as dismissals and all acquittals. The law differs from each state, for example certain felonies are expungeable in Ohio.

Is There A New Law About Continuing an EPO or DVO Hearing?

Yes. While there is no new legislation, the Court of Appeals recently issued a decision that severely limits the rights of the trial court to continue a hearing regarding a DVO/EPO. In the recent published opinion, 2009-CA-001993-ME JOHN STEPHEN TELEK v. SAMANTHA DAUGHERTY, the court heard an appeal from Kenton Family Court wherein the Defendant asked for a continuance then later asked the court to dismiss the case because he claimed they lacked jurisdiction because they should not have granted the continuance. While it seems to this writer that the attorney had a lot of gall to ask that it be dismissed for granting a continuance after asking for the continuance, nevertheless the Court of Appeals agreed with the appellant/defendant and said that the trial Court has no jurisdiction. The Appeals Court stated that due to the construction of the statute, the trial Court can only continue a DV hearing if the request is made due to the Defendant not having been served with the EPO and notice of the hearing. While this ruling makes little practical sense, the Court of Appeals may have gotten this correct pursuant to the strict construction of the language of the statute. While practitioners hope that the legislature will correct this statute, the Courts are taking the position that until correct, they must have the hearing within the prescribed 14 days, regardless of the reason for a delay. This is important to the Plaintiff/Petitioner/victim/person filing as well as to the Defendant/Respondent/accused. The Defendant will likely not be granted a continuance to seek legal counsel or to identify and subpoena witnesses. As such, anyone intending to mount a defense should contact legal counsel IMMEDIATELY after being served with an EPO. Similarly, the person filing an EPO should consult with legal counsel or an abuse therapist in their area prior to filing and/or appearing in court. The quick turn around time which is intended to assure a Defendant prompt legal attention and assure the right to a hearing, also puts constraints on the ability to prepare an adequate defense. If you have been charged with domestic violence or have received an Emergency Protective Order, you should consult with an attorney as soon as possible. In Northern Kentucky, you may contact Michael Bouldin at [email protected] or 859-581-MIKE (6453). Know your rights!

Why Is Copper Wire Theft and Burglary So Common?

In Northern Kentucky as well as throughout, copper wire theft has seen the greatest inncrease in arrest and conviction in the past 5 years. Not suprisingly, the price of precious metals, including copper, has increased dramatically during this time. Copper is easy to find in virtually any building as well as new construction. Most people charged with stealing copper wire are also charged with burglary. Burglary is defined as entering into a building or dwelling for the purpose of committing a crime. The crime does not have to be theft, but if copper wire is stolen and the defendant was not an invited guest, burglary has also occurred. If you sat in Kenton County Circuit Court last week, you would have seen five (5) straight cases dealing with theft of copper wire. If copper wire is stolen, it is usually quickly discovered and the investigators generally go straight to the scrap metal yards to determine who has recently sold coppoer wire. The investigation generally results in a name for a suspect within 24 hours and questioning and arrest thereafter. Unfortunately for the defendants, conviction of some felony is generally very easy for a prosecutor. Even if they cannot prove the burglary and theft, they can generally prove the crime of "receiving stolen property." Furthermore, the damage done by having to replace the wire far exceeds the money received from its sale. If you have been charged with receiving stolen property, theft, burglary or any other felony in Kenton, Campbell or Boone counties, contact criminal defense attorney Michael Bouldin at [email protected] or call at 859-581-MIKE (6453).

What Happens If I Don't Show Up For Court?

In Northern Kentucky, as in most other jurisdictions, failure to appear for a court hearing is grounds to do any of the following: issue warrant for your arrest (also called a capias, particularly in Ohio), revoke bond, file additional charges of contempt, or file separate bail jumping criminal charges. In most cases, the court will issue a warrant and will set a hearing to forfeit the bail which has been posted. As such, a defendant should make every effort to appear for all scheduled court appearances. In the event of an emergency, the defendant should contact his attorney as soon as possible or the court clerk if an attorney has not yet been retained. If you are facing a felony charge, the new charge of bail jumping is an additional felony. Because of these additional charges, it is better to attend court and face the charges than to skip, or otherwise miss, a court appearance. In days of yore many individuals could live "on the lamb" for years without discovery and often court records would eventually be lost or destroyed. With the advent and now increased usage of computers, organized and integrated software, NCIC national criminal database, as well as various tracking systems, it is nearly impossible to simply disappear. The charges do not go away, regardless of the amount of time which may pass before a defendant is ultimately apprehended. Due to the increase penalties if a criminal defendant fails to appear for court, the necessity to hire private counsel is increased. An experienced criminal defense attorney may be able to reinstate the bond which was previously posted, thereby avoiding forfeiture, and may be able to avoid new charges or contempt, thereby decreasing the damage done by the failure to appear. Additionally, a local attorney will know who to contact so that a defendant does not spend days in jail waiting for the next court date so that they may be released. If a criminal defendant voluntary turns himself in, it is generally favored by the courts and local judges. If you have missed a court date, contact your attorney. If you do not have an attorney and would like a consultation, contact Michael W. Bouldin at [email protected] or 859-581-6453 (581-MIKE).

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