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August 2014 Archives

Negotiate Settlement or Trial?

I am often asked whether it is better to negotiate a settlement or proceed to a trial.  Each case presents itself with different factors to be considered when making that decision.  I will often try to provide my client with a risk neutral evaluation of their chances at trial and what issues are likely to be determined.  I will also provide a best case/worst case scenario which can aid in the evaluation.  Those best/worst cases may provide additional insight if the client is either a "risk taker" or "risk averse."  I generally try to counsel clients to settle if an acceptable resolution is on the table.  I also counsel clients to not fear court. After considering a risk neutral approach, it is certainly worth mentioned that additional considerations should, and generally do include the additional expense of proceeding to trial including; legal fees, court fees, GAL or other professional fees, expert witness fees and expenses.  What is often overlooked, or at least undervalued, is the time drain and emotional damage done to yourself, your spouse and your children if the case proceed to protracted litigation and/or contested trial. It is generally accepted among those that regularly practice family law that contested litigation is a poor way to determine child custody and best interest of the children.  Collaborative Law is one alternative that generally provides litigants with a much more pleasant result.  A court will generally see only the best and worse of each party, leaving out the 90% middle where we all reside on a daily basis.  How you may have behaved one night in 2010 is of little relevance if you are a great parent to your children 99% of the time. If you are deciding whether to take a case to trial or settle, ask yourself and your attorney to do an evaluation.  Consider the best case, worst case and most likely.  Decide what is important to your resolution and what is secondary.  Do not choose to fight over the end tables and place your child's custody in jeopardy.  If you have questions or need a consultation, contact Mike at Bouldin Law Firm at [email protected] or call 859-581-6453 (581-MIKE).

What is a Terry Stop?

In the United States, a "Terry stop" is a brief detention of a person by police on reasonable suspicion of involvement in criminal activity but short of probable cause to arrest.  The name derives from Terry v. Ohio, 392 U.S. 1 (1968), in which the Supreme Court of the United States held that police may briefly detain a person whom they reasonably suspect is involved in criminal activity; the Court also held that police may do a limited search of the suspect's outer garments for weapons if they have a reasonable and articulable suspicion that the person detained may be "armed and dangerous".  When a search for weapons is authorized, the procedure is known as a stop and frisk.

Receiving Stolen Property and Theft

I am often asked the difference between the crimes of Receiving Stolen Property and Theft.  Theft is defined in KRS 514.030 and any theft over $500 in Kentucky is considered a Felony.   Even if the person who committed the theft and stole the item may be charged with Receiving Stolen Property ("RSP") pursuant to KRS 514.110.  Similar to the Theft charge, if the item is over $500, the charge will be considered as a Felony in the Commonwealth of Kentucky. Why?  Unless the theft exceeds $1MM, the charges are the same in either case: under $500 is a misdemeanor, $500-10,000 is a class D Felony and over $10,000 is a class C Felony.  A theft case can also be charged as class B Felony if over $1,000,000.  The major difference is that the Commonwealth must only prove that you "knew or should have known" that the item(s) were stolen, and not who actually committed the theft.  In essence, it is an easier burden for the state to prove RSP instead of Theft. Often cases involving selling stolen merchandise to a pawn shop involve RSP.  This is because pawn shops are required to report to the police when they have items which they believe to be stolen.  The pawn shop will have the name, address and other contact information for those that pawn or sell items.  The police work involved is seldom extensive and with a charge of RSP there is no need to go to the store to determine who stole the item.  Furthermore, if the theft was in a different county, there may be jurisdictional challenges to where the charges should be filed. Having practiced for 20 years, lawyers know this is often a sign of a drug abuse problem.  Experience will lead to investigate the underlying concerns in any individual case to best help and assist the client/defendant. If you have been charged with Theft or Receiving Stolen Property in Northern Kentucky, call the Bouldin Law Firm at 859-581-6453 or email Michael Bouldin at [email protected] .  Appointments may be made through Michael's secretary, Emily.

Can't Decide To File Divorce?

If you cannot decide whether to file for divorce, you should likely meet with both a psychologist as well as an attorney. If you are trying to decide, it is likely that your spouse is trying to decide as well.  It is important to know your legal rights prior to the beginning of a divorce.  For example: Are you required to move out?  When do you begin paying child support?  Who is responsible for the mortgage and other household expenses? and When do I get to visit my children? Divorce is one of the most difficult times that anyone will go through in their lifetime.  It is the ending of a relationship and most people struggle with and fear the concept of how their life will change.  Most mental health professionals opine that when divorcing people go through the 5 stages of grief similarly to those who lose a loved one.  Those five stages of grief include:  (1) Denial; (2) Anger; (3) Bargaining; (4) Depression; and (5) Acceptance.   Those struggling with the decision often make a list of pros and cons of divorce.  many also talk to trusted friends and confidants to help aid in the decision.  While this may prove helpful, in matters of emotion, the laundry list is just that and friends try to be supportive based on the information you give to them.  A psychologist can help you understand the underlying reasons for your unhappiness and the best resolution.  It may include counseling, medication, or modifications within your marriage instead of divorce. I have learned over my 20 years in practice that involving a good psychologist will often lead to a much better experience and more amicable divorce or dissolution.  I often will refer clients and potential clients to speak with a mental health professional. If you need to discuss the state of your marriage as well as understand your legal rights in the event of a divorce, consult with an experienced attorney.  With experience comes the history of dealing with numerous people who have gone through similar circumstances.  For a consultation in Northern Kentucky, call Michael Bouldin at 859-581-6453 or email at [email protected]

What If I Use Illegal Drugs?

In divorce or custody cases, use of illegal drugs can be grounds for the family court or juvenile court to remove the children from your home or place significant restrictions on your parenting rights.  Generally if drugs are suspected, the Family Court will order the parties to undergo drug testing.  Depending on the county and the specific Judge, if you test positive for illegal substances, your children may be removed. It may begin in court or outside of court with a social worker from CHFS-DSS coming to check on allegations of abuse, dependency or neglect of the children.  If drug use is suspected, they may request that you submit to a drug test.  At this point, you may have the right to refuse the test.  If the Court orders a testyou do not have the right to refuse without subjecting yourself to sanctions for contempt.  YOU SHOULD CONSULT WITH AN ATTORNEY BEFORE SUBMITTING TO OR REFUSING ANY TEST. If you or your spouse end up with a positive test, you will generally be placed on random testing, at intervals which may be monthly, bi-weekly, weekly or multiple times each week.  Generally, you will be responsible for the fees associated with the testing.  Remember: a missed test is counted as a positive failure by most courts.  It is imperative that you submit to testing each time that your number/color is called by the testing organization. Of course, the best position is to NOT use illegal drugs, especially when involved in a CPS investigation or when going through a divorce or custody trial.  Use of the drugs will undoubtedly give the other party the upper hand in reaching a resolution regarding custody and parenting time.  If you are in juvenile court, you may be appointed an attorney to represent your interests or you may hire your own attorney.  In family/divorce/custody court, you are not guaranteed the right to counsel and must hire your own attorney. If you have questions about custody, family court or juvenile court and the use of drugs, contact your attorney. If you do not have an attorney or wish to discuss and retain private counsel, call the Bouldin Law Firm and speak with Michael at 859-581-6453 (581-MIKE) or email at [email protected].

What Is Best Defense For Heroin Possession?

There is no "best" defense that applies universally to all cases, but only the best defense in any given case.  Heroin, and other illegal drugs, often have a defense to possession if the officer illegally searches a vehicle, person, purse or backpack.  Many times the search is incident to arrest, which would be a proper search.  

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