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May 2012 Archives

What Do I Do if Money is Seized at the Airport?

I recently represented an individual who was traveling with a large sum of cash. During his pre-flight security check, they noticed the large sum of cash, but sent him on his way. Upon arrival in LAX, he was detained and the money was confiscated by TSA and the federal authorities. He was not charged with any crimes; presumably because none had been committed. He was given paperwork for the seizure evidencing the amount of money involved. The individual then contacted me regarding the seizure and intention of having the money returned. There are specific procedures which are required to reclaim any property which is seized by the government. Under USC 21, section 881, relating to the Controlled Substances Act, the government is given broad powers to seize moneys, negotiable instruments and other property which they believe is used or intended to be used to facilitate any violation of this subchapter. The seizure is subject to forfeiture if specific US Department of Justice (DOJ) and Drug Enforcement Administration appeals and timelines are not followed. While the intent of 21 USC 881 is noble, the practical application is often faulty. The possession of large amounts of cash is often used as the only basis for believing that a person is engaged in the purchase or sale of controlled substances. Fortunately for the defendant, this is not sufficient for legal forfeiture. There are times when the individual may be required to file legal action in the United States District court. Additionally, civil forfeiture proceedings may be stayed pursuant to title 18 USC 981(g). More often, assets seized are in conjunction with actual criminal charges. Those charges under section 881 relate to controlled substances. I have also represented individuals who have had homes, business assets, vehicles and money (I have not yet had a boat, but I have read that it is common in Florida). There are also forfeiture provisions relating to drugs, trafficking or employment of illegal aliens, and many other sections of the federal code as well as under state statutes. I have represented individuals with assets seized by Florence and Boone County authorities, INS, Secret Service, TSA and FBI. If you have had an asset seized by the state or federal government and have questions or are seeking counsel or legal representation, contact Michael Bouldin at [email protected] or call 859-581-6453; 859-581-MIKE. In the case identified, it took approximately four months before the seized money was returned to the owner.

Summer Memorial Day and Arrests

Every summer the number of arrests for AI, PI and DUI increase as the weather turns warmer and more people are outside and enjoying the weather as well as alcoholic beverages. Covington, Newport and Cincinnati generally have significantly more police officers on foot, bicycle and horseback during these summer months from Memorial Day through Labor Day. The outdoor festivals, baseball games, 5k and 10k runs and other events bring out people, music and drinking. The best way to avoid arrest is to minimize your exposure. Don't drink to excess when you are out. Realize that when you are drinking throughout the day that the effect of the alcohol are still there and often are minimized in the person's mind because it is over a prolonged period. Cincinnati Reds games are notorious for creating an atmosphere where people drink too much as they are at the ballpark for two to four hours and may be drinking six or more beers during that time. You may not feel intoxicated after drinking 6 beers in 3 hours, but you will likely not be able to pass a breath test. Call a cab or put a designated driver in place for ball games. Have an exit strategy for going to and leaving a festival such as Maifest or Octoberfest. I am highly supportive of 321-RIDE, a service which drives you home in your car; you pay an annual fee and tip the drivers after you arrive safely. If you do receive a citation or are placed under arrest, there are a number of things which you can do to minimize the damage, costs and ding on your record. First, always try to be polite to the officers involved. This is not always easy. If an officer is thinking of placing someone under arrest for PI or AI, they will often let that person go if they are polite and offer to leave the situation or take a taxi cab home. A person who is not polite or rude, will often end up in jail and many times will also be charged with Disorderly Conduct or Resisting Arrest. Second, contact an attorney. An attorney may guide you through the system to minimize the results. If you have questions, need a consultation or wish to speak with an attorney, contact Michael Bouldin at 859-581-6453 or email at [email protected] . Best wishes for a safe summer. *AI is Alcohol Intoxication and is generally a charge in Kentucky when the person is manifestly under the influence of alcohol and is a danger to himself or others. It is essentially the same charge as PI, for Public Intoxication in many other states.

How Early Should I Seek Counsel if I Hear of an Allegation?

Criminal defendants generally don't want to spend money on an attorney until they know that they are the target of an investigation, and many even wait until they are officially charged with a crime before engaging legal counsel. Unfortunately, the best advice that an attorney can offer is often during the investigation phase. In Northern Kentucky as well as elsewhere, the most powerful tool that an investigator has available is a confession or other admission by the Defendant. While it may be easy to ascertain that a conviction is likely if a Defendant admits to the crime, what may be less obvious is that any statement may be used against the Defendant if the case proceeds to a trial. The true confession is not as rare as a reader may think and Defendants confess for a variety of reasons. Most confess because of promises by the investigative officer that they will go easy on them if they tell what happened and admit their involvement. What a defendant does not know is that the decision to "go easy" may not be up to the investigator if the prosecutor or the judge view the crime differently.* What may appear to be an innocuous question may turn out to be the lynch pin to a conviction. A simple mistake is difficult to explain away if the case proceeds to trial. For example, assume that you are being investigated for a breaking and entering charge and the officer asks if you have any burglary tools. You answer "No." as you have never purchased burglary tools and you were not involved in the crime. A standard search warrant later reveals that you own a screwdriver, hammer, and small sunglass screwdrivers, as well as gloves and a satchel. The accused may have not thought of these items as "burglary tools" however to an investigator and likely to a jury, it is what they are. In addition, you have either misled or lied to the officer about facts relevant to the investigation. Even if you testify at trial, there is now one additional piece necessary to explain away. Nearly all criminal defense attorneys will agree that the more explanations increase the likelihood of conviction. No matter how small, each thing that requires an explanation makes the defense that much more difficult. Moreover, the attorney can provide a barrier between the police investigator and the accused. Regardless of the reason, the simple statement that "my attorney told me to remain silent" is accepted more than simply asserting the right to remain silent. If you are the target of a state, local or federal investigation, you should discuss your case with an attorney as soon as possible. Retaining an attorney is in your best interest. If you have questions, concerns or wish to schedule a consultation, contact Michael Bouldin at [email protected] or call at 859-581-6453. *That said, the investigator may very well have an influence on the prosecutor, judge and the ultimate outcome of the case.

Watch the DUI Videos

In Northern Kentucky as well as elsewhere most police agencies have video cameras in the vehicles of the officers. This video generally always records and kicks on about one minute prior to the time when the lights/emergency is activated. This allows the officer to record not only the DUI field sobriety tests, but also a minute of the driving which led to the stop of the vehicle. Why watch? Well the answer is both simple and multiple: First, the officer must have probable cause to stop a vehicle. If the officer was following the Defendant, that bad driving which led to the probable cause most likely would have occurred just prior to activating the emergency lights. If there is no bad driving or other reason for the stop, there is a chance that the entire stop can be suppressed in a hearing before the trial judge. Second, officers often misstate the facts of the case. There have been numerous tapes which I have watched in which the officer either overstates or makes mistakes about how the defendant performed on the field sobriety tests. In a number of cases, the prosecutor or the police agency will turn the video over to defense counsel without reviewing the tape/CD. This is particularly advantageous to the defendant in that counsel will have the ability to cross examine, knowing the facts, and the officer will have to rely solely on his recollection. It is a rare occasion that the defense attorney has more knowledge than the prosecutor or the officer; it should be utilized. Finally, the video may confirm the statements of the officer and that the Defendant was very intoxicated and miserably failed the field sobriety tests. If that is the case, there may be an advantage to enter into a plea agreement to avoid the video being shown at the trial. Such a video may incite the judge or the jury into recommendations of more harsh sentence if the case proceeds to trial If you have been arrested for DUI, your attorney should request the video in discovery. If a video does exist, the Defendant is entitled to review it. There are a number of basis for obtaining the video, but the most common is that it may provide exculpatory evidence favorable to the Defendant. If you have questions or wish to consult with an attorney regarding a DUI in Cincinnati or Northern Kentucky, call Mike at 859-581-6453 or email at [email protected] . Best wishes.

DUI Acquittal May, 2012

I'm often asked how a person can be acquitted of a DUI if the facts are against them. In a recent trial, the officer testified to bad driving, striking the fog line numerous times and striking the center line two times. He then testified that the driver was slow to pull over and stumbled upon exit from the vehicle. When given the field sobriety tests (FST), she failed miserably the ABC test, number count, one leg stand and walk and turn. Her PBT, portable breath test, showed the presence of alcohol and she admitted to drinking at the bar. She was unable to complete many of the field tests. She did refuse the breathalyzer. As an aside, the driver lost her license for 120 days as a result of the refusal. I will state that many attorneys would advise the client to plead guilty based on the above facts. One reason that convictions are very high in DUI cases is that most result in guilty pleas. The primary reason that the top DUI defense attorneys are successful is because they are not afraid to take a case to trial. Most experienced criminal defense attorneys agree that they have won cases they feel like they should have lost and they have lost cases that they feel that they should have won. Back to the case at bar, the officer testified to all of the above. Upon cross examination, it became clear that he did not actually recall the incident with the Defendant, however was only testifying from his notes that evening. He could not recall other drivers on the road; could not recall what was said outside of his notes and citation. The citation was never put into evidence and is generally not admissible as evidence on its own. The final question presented on cross examination was along the lines of: it's fair to say that you do not have any independent recollection of this stop... you are simply reading your notes but you do not recall the events as we sit here today, correct? The officer honestly responded, "Yes." That was the close of the case for the Prosecution. I've stopped because many attorneys will immediately see that the case should now be won. The Judge asked if the Defense was ready to proceed and I requested a Directed Verdict and moved to strike the entirety of the testimony of the officer. Notes may be used to refresh the recollection of the witness, but cannot be used alone to provide the evidence. Since the officer was testifying from the notes, then he was not using them to refresh his recollection. The Judge correctly applied the law and issued a Directed Verdict in favor of the Defendant, thereby acquitting of all charges. Of course not every story has such a wonderful ending. The odds of winning are different in each case and every case is unique. Clients are warned to not have an expected outcome based on other cases, regardless of the seeming similarities. Refer to the issues presented in the second paragraph. That said, your chances of acquittal greatly improve with the retention of an attorney on your side. Listen to the advice of the attorney and do not be afraid to take the case to trial if it is warranted. If you have been arrested for a DUI and are seeking advice and counsel, contact me, Michael Bouldin at 859-581-6453 or email at [email protected] for a consultation.

What Is Possession of Controlled Substance?

In Kentucky a controlled substance is any drug which is manufactured or otherwise spelled out by state statutes. Controlled substances may be marijuana, cocaine, heroin in addition to prescription medications. Over-the-counter medications are generally not considered to be "controlled" and subject to legislation. Possession of a Controlled Substance (PCS) may be anything from a misdemeanor to a class C felony, depending on both the substance as well as the amount. Rarely, PCS may be charged by the federal authorities and subject to federal criminal liability. This occurs most often when there is a significant investigation and the belief that the Defendant is engaged in large scale trafficking of the controlled substance. There have been numerous changes to the laws regarding Possession of Controlled Substances in Kentukcy in 2011 and 2012. Some charges have been reduced and the law now allows for pretrial diversion in certain cases. The law also allows for the charges to ultimately be dismissed and possibly expunged, depending on the charge, type of substance and amount. How you deal with the authorities may have an impact on the resolution of your case. Having a knowledgeable attorney can also greatly assist in a favorable outcome. If you have questions or neeed a consultation, contact me via this site, email at [email protected] or call at 859-581-6453.

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