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October 2014 Archives

Is Silence Admissible In Criminal Court?

A recent Kentucky Supreme Court decision has stated that your silence cannot be used against you.  This includes the playing of an interview tape where the defendant chooses to exercise his right to remain silent.  The case of Pamela Bartley v. Commonwealth 2012-SC-219 (Overruling Court of Appeals 2010-CA-001640-Me) was only handed down this week (10/21/14). The Court ruled that the prosecutor improperly played a tape of the Defendant remaining silent when asked questions by a detective. The court ruled that silence in the face of accusatory questioning was improperly used as an indicator of guilt. The court was divided, but the minority opinion was based on the balance of overwhelming evidence that they say outweighs any prejudice by playing of the tape. This new ruling has substantial effect on numerous cases where a defendant is questioned and jurors may use their silence as indicator of guilt. It is a MAJOR VICTORY for criminal defendants and proponents of the 5th Amendment Right to Remain Silent. Special Thanks to Derek Durbin and W. Robert Lotz, the appellate attorneys who won this particular case on appeal, for strongly advocating for his client and enlightening us all. I have had the distinct pleasure and honor to practice law with W. Robert Lotz for the past 15+ years and wish him well in his retirement.  If you need an attorney in Northern Kentucky, call Michael Bouldin at 859-581-6453 or email at [email protected].

Coping With Legal Issues During Divorce

If you are in the process of a divorce, you will deal with and cope with legal issues.  Following are key points to assist you in coping with those legal issues:

1. Educate yourself.  It is wise to educate yourself in regard to the rules and laws pertaining to divorce in your state of residence. Valuable information is available via the internet, your local library, from your attorney and talking to others who have gone through a divorce. Do not place too much weight on what your "friend" got in their divorce.  Use good judgment when sifting through what all you learn and trusted sources. 2. Find the right attorney.  Divorce is a formal legal process, and people going through divorce are wise to hire a state-licensed attorney who specializes in divorce.  Kentucky does not recognize specialties, however it is apparent that some attorneys spend much more time dealing with divorces than others.  While an attorneys service are not inexpensive, attorneys are in the best position to advise divorcing people how best to navigate the divorce process while advocating for their rights. 3. Do your homework.  Get a head start on the process by getting documents related to marital property, income taxes and debts together as soon as possible.  Your attorney may suggesting having real estate and other property such as boats, jewelry and automobiles appraised. Your preparation will save significant amounts of legal fees. 4. Construct a specific plan.  To avoid the pitfalls of going to court, try to work out a settlement with your spouse.  Determine if you can come to an agreement on such things as property division, splitting debts, spousal support and child custody.  Jointly determine and try to agree where the child will live, who will care for the child the majority of the time, how visitation will be arranged and how conflicts will be negotiated. A judge is more likely to endorse a detailed custody agreement. 5. Be civil and polite.  Honesty, civility and politeness are important. Character is defined by the way we handle ourselves in stressful situations. Hold yourself to high standards as far as your conduct and do not let your spouse bring down your ethics; especially if there are children involved. Always show respect for the mother/father of your children. In addition, if you have to go to court, being honest and on your best behavior will expedite the process and enhance the court's opinion of you as a responsible, reliable adult. An opinion, which may prove critical, should the court step in to impose a decision regarding custody or property division. If you are going through a divorce in Northern Kentucky and need to speak with legal counsel, contact Michael Bouldin at [email protected] or call 859-581-6453.

Should I Use Do-It-Yourself Divorce Forms?

I get about one call each week relating to "do it yourself" divorce forms.  Unfortunately, Kentucky does not have FORMS that allow a person to do everything themselves.  The attorneys who practice domestic law have developed many of their own "forms" which they use as a template when creating documents.  Many clients have spent $400-700 on forms which do not allow them to finish the divorce.  Unfortunately, they often spend more money to have the attorney fix the mistakes and submit proper documentation. A normal divorce involves a number of filings: Petition for Dissolution, Entry of Appearance or Response, Dissolution Settlement Agreement - may be Property Settlement Agreement and/or Custody Agreement.  If the parties do not agree, the court will issue specific Findings of Facts and Conclusions of Law. The court may also require a filing of Waiver of Final Hearing, Consent to Submit, Agreed Order for Dissolution. Many also require the attorney to follow local family court rules. For example, a Petition for Dissolution must be redacted before it is filed.  The attorney is required to keep a non-redacted version in his/her files. There are also a number of forms: Summons for Service, VS300, Financial Disclosure Affidavits, Finding of Facts/Conclusions of Law and Decree.  Some counties also have standard orders for holidays and/or visitation. This may all be confusing to a person without a law degree; and even confusing to those with a law degree that do not regularly practice in this area of law.  Each county has different mandates and rules that apply, so most attorneys limit their practice to certain geographical areas.  For example, in Northern Kentucky the Boone, Campbell and Kenton counties will have only 4 total family court judges. If you have questions regarding divorce or dissolution in Northern Kentucky, call Michael Bouldin at 859-581-6453 or email at [email protected]  

What is Penalty for Sex Abuse in KY?

In Kentucky the crime of sex abuse is generally charged as a class D felony. A class D felony is punishable by 1-5 years of incarceration in prison. Pursuant to KRS 510.110 sex abuse is when you subject another to sexual contact by forcible compulsion. It can also be sexual contact with a victim under 16 years of age, regardless of compulsion. (The age is increased to 18 if the perpetrator is in "position of authority" i.e. teacher) If the victim is under 12 years of age, the crime is a class C felony and punishable by 5-10 years.  There are many nuances with respect to the age of the victim and the age of the person charged with the crime.  Sex abuse, like most sex crimes will require not only a treatment program but also sex offender registration, on a Kentucky registry.  Many future rights will be suspended, for example a convicted felon must:  register for at least 10 years, and possibly for lifetime; not reside within 1000 feet of a school, playground or daycare; continue on post-incarceration release for 5 years even after serving out a prison sentence; not possess any pornographic material; register any email addresses or domain names; not utilize the internet without supervision or enter any chat websites.  There are other obligations of convicted sex offenders. Sex abuse is a sex crime and if incarcerated the defendant must complete a sex offender treatment program before beginning eligible for parole. Any sex offense should be discussed with a lawyer prior to conversation with an investigative agency.  Statements may be used against you even if they have not read Miranda warnings.  For example, a non-custodial questioning of a potential defendant is not protected by Miranda. If you are charged with sex abuse you NEED an attorney. In Northern Kentucky call Mike Bouldin at 859-581-6453 or email at [email protected] 

Can I Cancel Spouse's Insurance?

Getting divorced in Kentucky may be tricky, but cancelling your spouse's insurance is generally a BAD idea. If you are starting a divorce, there is no quicker way to get on a judge's bad side than to cancel your spouse's insurance.  Prior to 2014, the courts would enter a Status Quo Order immediately upon the filing of a Complaint.  The Supreme Court decided that there must first be a motion prior to entering such an Order.  They are almost always granted.  A Status Quo Order mandates that neither party cancel any insurance and that the parties continue paying bills as they have been.  The goal is to assure that neither party drives the other into bankruptcy or financial ruin. Regardless of whether a Status Quo Order has been issued, the courts encourage parties to act fiscally responsible.  Just because the court does not have the legal ability to hold someone in contempt for cancelling insurance does not mean it is be best thing to do.  If you cancel, the court can later make you financially responsible for all debt incurred as a result of cancelling the insurance. This is like the question, "Can I take my child and move out of state?"  The answer is, "Yes, you may... but it is generally a bad idea."  The judge can order you to return the child and grant custody to your spouse.  For more on this question, follow the link. As an aside, I realized just today that insurance is likely not covered or precluded by an Antenuptial Agreement (prenup).  An antenuptial agreement typically makes reference to division of assets and often precludes any spousal support, alimony or maintenance.  It does not, however, preclude a court from ordering that insurance be continued.  Health insurance is most vital, but typically auto, home and disability insurance should also continue. If you have questions about your divorce and any requirement to continue insuranc,e consult with your attorney.  For consultation in Northern Kentucky, call Michael Bouldin at 581-MIKE or email at [email protected]  Call 859-581-6453.

What Is the Max Penalty for Possession in KY?

In Kentucky, a Possession charge may be a different level of offense based on the drug which was possessed as well as the quantity.  If the charge is possession of marijuana, it is considered a minor misdemeanor for a first offense and is a fine.  A second or subsequent charge may be considered a class A misdemeanor, punishable by up to 12 months in jail.  If you are caught with more than 8 ounces, it may be considered trafficking. A possession of controlled substance charge is generally a minor class D felony, punishable by 1-3 years in prison.  If you have a large quantity, it may be a 1-5 year sentence or if considered trafficking, may be a class C felony punishable by 5-10 years.  Some trafficking charges are now considered to be D felonies, punishable by up to 5 years in prison. As an aside, there are other items which may also be illegal to POSSESS in Kentucky, to wit: (1) concealed firearm; (2) any firearm if you are a convicted felon; (3) stolen property; (4) forged instruments; (5) forgery devices; (6) burglary tools; (7) gambling devices; (8) drug paraphernalia; and (9) methamphetamine precursor .  It is illegal to posses any of these foregoing items.  Most of these criminal possession charges are felonies under Kentucky law; if you have questions, seek the advice of an attorney. If you have been charged with criminal possession of ANYTHING, you need to hire an experienced criminal defense attorney to represent your interest.  An attorney can discuss your case and advise you of any and all possible defenses to the case. The attorney will advise you of your rights and either negotiate the best deal or represent you through trial.  They can determine if there is reason to file a Motion to Suppress Evidence, whether that be the drug in question, statement, cell phone or other evidence that the state would use to attempt to prove your guilt. If you need to speak with an attorney in Northern Kentucky, contact Michael Bouldin at the Bouldin Law Firm by email at [email protected] or call 581-MIKE, 859-581-6453.

Divorce Attorney On The Line

Northern Kentucky divorce attorney Michael Bouldin is now on the line.  A quote made famous by the movie, The Internship, starring Vince Vaughn and Owen Wilson where Vince Vaughn struggles with the internet phenomenon while the two try to get a coveted job at Google through their internship program.  On the line is the character's way of saying on-line or on the internet. This blog is written tongue-in-cheek because there are many lawyers that are old school and have not yet caught up with the internet, computers and digital media.  They would not know to advise clients against posting on FaceBook, Twitter and Instagram when in the middle of contested custody and divorce cases. When considering an attorney to help you through a divorce, consider if they are compatible and you trust their advice.  You should also decide if you will be able to effectively communicate with each other. Many business professionals have very little time for actual telephone conversations and communicate primarily through email.  Others may communicate through text messaging or via social media. It is strongly urged to NOT submit any confidential communication through social media with your attorney.  Anything on the web (on the line) is potentially out in the open for the world to find.  FaceBook instant messaging chats can be discovered through the subpoena power.  The courts have held that email communication between attorney and client is protected. If you have questions about representation for a divorce in Northern Kentucky, contact attorney Michael Bouldin at the Bouldin Law Firm via email at [email protected]  For faster response, email at [email protected] or call 859-581-6453.

What is the Maximum Penalty for DUI in KY?

This is a common question and it first depends on if you are charged with a First, Second, Third or Fourth/Subsequent offense of DUI.  DUI in Kentucky is spelled out under KRS 189A.010.  For a first offense, the penalties include: 48 hours-30 days of incarceration and/or $200-500 fine, DUI service fee, court costs, treatment program fee, county fees, state fees.  You will have to do a Drug and Alcohol Evaluation (ADE) and follow the recommendations associated therewith. You will also lose your license for a period of time and may be eligible for hardship privileges after some period of time.  Some counties will also mandate that you report to a program to show proof of completion; for example Campbell County will send convicted persons to report to KAP (Kentucky Alternative Programs) for 90-180 days to show proof that they paid fines/costs and that they completed the ADE and treatment. That is the complete answer, the simple answer is that the maximum penalty is 30 days in jail and $500 fine.  To be fair, a $200 fine will add up to over $700 with court costs, fees and the like.  A second or subsequent offense will increase all penalties.  The DUI service fee, court costs, treatment program, county and state fees will remain constant for any conviction.  The incarceration and fine will change as follows: 1. First offense: 2 - 30 days jail &/or $200-$500 fine; loss of license 30-120 days. 2. Second offense: 7 - 180 days jail & $350-$500 fine; loss of license 12-18 months. 3. Third offense: 30 - 365 days jail & $500 - $1,000 fine; loss of license 2-3 years. 4. Fourth/Subsequent Offense: FELONY 1-5 years in prison, must serve 120 days; loss of license 5 years. All offenses have double the mandatory minimum jail time if there is an aggravating circumstance.  These aggravating circumstances are spelled out in KRS 189A.010. If you have been charged with a DUI, it is a serious offense and may involve incarceration and fines.  You should seek the advice of an attorney as soon as possible and definitely prior to entering any plea to the offense.  For consultation in Northern Kentucky, call Michael Bouldin at 859-581-6453 or email at [email protected]  

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