Criminal Rights During Emergency Orders

Emergency Orders issued by the governor cannot and do not suspend or supercede the United States Constitution. During this COVID-19 scare, many individuals are worried about their civil rights and liberties, especially those who are charged with a crime.

The courts have also issued orders to provide the greatest leniency during this crisis. Most people facing misdemeanor and traffic charges are being released without bond or even cited and released. The courts are continuing to hold regular hearings for those who are incarcerated to (1) review bonds; (2) hold arraignments via video from the jail; and (3) hold preliminary hearings for those in jail to assure there is probable cause of felony charges are appropriate.

Additionally, criminal defendants who are incarcerated retain their right to a speedy trial guaranteed under the Sixth Amendment. A violation of the Speedy Trial Clause is cause for dismissal with prejudice of a criminal case. Unfortunately, what many defendants believe is speedy and that which has been upheld by the Courts often substantially differ. Those wishing to assert their right to speedy trial should familiarize themselves with Barker v. Wingo (1972). and the Speedy Trial Act of 1974 to determine how these may apply to a specific case.

Do we still have the right to assemble as guaranteed under the First Amendment? The current executive orders do not allow persons to assemble. This does not prohibit the right to coordinate efforts through online forum or other means. It is likely that the current emergency orders issued by the governors in Ohio and Kentucky would survive constitutional scrutiny since they are ostensibly for the greater good due to the hysteria surrounding spreading of Coronavirus and they are specific as to time, location and manner.

If you have been arrested or charged with a crime, you should contact and hire an experienced criminal defense attorney at your earliest convenience. Many times getting an attorney involved early is the best way to a good resolution. For consultation and representation, contact Michael Bouldin by calling 859-581-6453 or email mwbouldin2@gmail.com.

Divorce, DVO and Court Filings During Coronavirus Update

As an attorney in this field for 25 years, I wanted to update the public and advise that you can still file for divorce and obtain an Emergency Protective Order (EPO) by filing a Domestic Violence (DV) Petition even during the Covid-19 scare with the courts technically closed.

The courts are remaining open for emergency issues. Those include Protective and other Emergency motions in addition to those arrested and sitting in jail. Most other court dates are being continued to later dates. You can file for an EPO by contacting the county attorney or calling the local District Court Clerk in the county you reside.

Currently, the courts are also processing those filings made online. Online filing does include filing Petition for Divorce/Dissolution in Kentucky. Most domestic attorneys have converted to electronic filing over the past 2 years and can file for divorce/dissolution during these times.

These trying times are exacerbated by financial concerns, loss of employment, unpaid bills and close proximity that quarantines mandate. Add into the mix that many staying at home increase alcohol consumption, and now we have the perfect recipe for domestic violence.

Additionally, the judges are also working during this time. They do have the ability to review all emergency motions and to make rulings. Courts have made various rulings, including restricting visitation, prohibiting travel outside of the US, and suspension of of air travel for children during this period.

If you are a victim of domestic violence, know your rights. Speak to an attorney or victim’s advocate, file for protection and/or file for divorce. The Women’s Crisis Center hotline (800-928-3335) and shelters have remained open. For more information or consultation, contact Mike@bouldinlawfirm.com or call 859-581-6453. If we’re not in, we will get your message and return your call.

How to Handle Child Exchange During Quarantine

With an ever-changing code of conduct and various quarantines during the Covid-19 crisis have led to a number of questions to most family law attorneys.

Generally, parties should continue to follow all court Orders regarding custody, visitation and parenting time. This includes exchanges and update of information. There is currently nothing preventing parents from continuing their current custody, despite the relative lockdown of many businesses.

I, like most of my colleagues, are advising clients to continue unless there is a specific concern. For example, if someone has been exposed and the child has a history of respiratory problems, caution should be used to not expose the child. Additionally, parties should try to work together to avoid unnecessary exposure that may risk elderly or other persons living in either household. Additionally, i should not have to say this but parents do terrible things to each other and ultimately to the children: If you or your child is exposed, share the information. If your child is sick, whether with Covid-19 or any other illness, DO share that information with the other parent. The parents should jointly make the decision on whether exchange is prudent or if one household is already sick, to potentially remain in self quarantine.

While courts may be more lenient with allegations of contempt following a nationwide crisis, my belief is that Judges will not be compassionate with those parents that use this crisis as a way to alienate or prevent the other parent from exercising their parenting time.

If you have questions, you should first contact your attorney. If you do not have an attorney, you may comment below or contact Mike@bouldinlawfirm.com. You may also call 859-581-6453 (581-MIKE) to schedule consultation or discuss your specific concerns.

Collaborative Divorce Never Closes

Collaborative divorce offers parties the ability to self direct the direction, timing and terms of their divorce without court intervention or any judge’s directives or Orders.

You can proceed at your pace, whether faster or slower than courts would direct and regardless of whether court houses are open. The only orders from the judge come after an agreement is reached and orders are to comply with your agreement.

To find out more about collaborative law in Northern Kentucky visit www.nkydivorce.com or search at www.bouldinlawfirm.com. Contact mike@bouldinlawfirm.com or call 859-581-6453 (581-MIKE) for representation or to schedule a consultation.

Is a Business Valuation Necessary in Divorce?

Depends. I often start a blog post with questions often asked during a divorce; only to find myself knowing that it is not simply a Yes or No question.

You need to first ask the following questions:

  1. Is the value of the business greater than the owner? If the business is single person LLC where a service is provided, it is often only an alternate to other gainful employment. This often includes professionals such as attorneys and accountants or others such as personal trainers and life coaches.
  2. Is it a “saleable” business? Meaning, if we put this business on the market, is there a potential buyer. Some businesses are so unique that there is no market for their purchase.
  3. Is there a value above the value of the assets? A valuation can be useful if there goodwill that needs to be explored or client/customer lists that have value.
  4. Can the ownership be divided between the spouses? If it is a single member or there is buy/sell clauses that limit spouse ownership, one party may have to buy out the other.

A business valuation may take on many forms. For example, in a collaborative dissolution often the parties will utilize one valuation expert to provide a neutral valuation for use in determining value of assets and potential division of property. In litigation, a thumbnail evaluation may give a party at least an overview and vague idea of the value of a business, while a more comprehensive valuation will be necessary if presenting to court for trial. Know that every business has a value, which can be determined using:

  • Income-based approach
  • Asset-based approach
  • Market-based approach

If you are going through a divorce and there is a closely held business, a valuation may be necessary or at least useful before separating marital assets. You should discuss with your attorney the various types of valuation, the relative cost and the usefulness if the case proceeds to litigation.

For consultation regarding divorce/dissolution, contact Michael Bouldin by following this link or call 859-581-6453 to schedule a consultation.

How to Expunge EPO or IPO in Kentucky

As criminal defense attorney I am often asked, “Can I expunge an EPO or DVO?” If certain criteria are met, you can expunge an EPO or IPO in Kentucky. You will need to pay the initial fee of $40.50 for a background check. Once that is certified by the state, your attorney can file to have the records expunged.

Fortunately, Kentucky law does allow people to expunge the records of the EPO filing and proceedings if the proceeding did not result in the issuance of a DVO or IPO.  To be eligible for expungement, the following requirements must be met:

1. The proceeding did not result in the issuance of a DVO or IPO;

2. At least 6 months have elapsed since the dismissal of the case; and

3. During the 6 months prior to the expungement, the person cannot have been bound by a DVO or IPO relating to any other person.

The cost for attorney fees is typically $500, but may vary if you have felony or other issues to expunge from your record. If you have had an EVO or IPO against you dismissed, you are likely eligible to have all the records of the proceedings expunged. 

Contact the Michael Bouldin today by using the link, email mike@bouldinlawfirm.com or call 859-581-6453 (581-6453) to find out what we can do for you. 

AI Facial Recognition in Criminal Investigations, Warrants, Charges and Trials

After listening to a recent podcast for facial recognition, Stuff You Should Know, it gave me the thought of a separate article concentrating on crimes and investigations in which Facial Recognition is used to “solve” the crime or identify a suspect. Is every adult now part of a virtual lineup every day?

The 4th Amendment of the US Constitution guarantees persons from unreasonable searches and seizures. Case law around this issue is that it passes constitutional muster so long as they are minimally invasive to the party and the public good outweighs the infringement of rights. The US Supreme Court has found that a copy of voice or handwriting, a lifted fingerprint or found DNA is not a “search and seizure of a person.” There is a requirement to obtain a warrant if requesting a person’s DNA or submission to a fingerprint analysis. As such, it is very unlikely that a court would find that a photo of your face would be a search or seizure subject to constitutional protection.

The second argument against is one of privacy. In general, one cannot have a reasonable expectation of privacy for things put into a public space and there is no expectation of privacy of a person’s physical characteristics, such as voice and handwriting. It would be a stretch to rule that a person as a right to privacy regarding their facial features; especially if they are in public and upload pictures to social media sites.

The use of AI facial recognition has grown considerably in recent year(s) and is growing at a rapid pace. The slope is dangerous and slippery. While most people do not object to using this to catch child predators or to find abducted children, the next few steps would undoubtedly follow. Police in may cities already use Facial Recognition to identify criminal suspects. Recent investigations say that just searching criminal databases has lowered from 30 days for a human to 3 minutes for a computer. Obviously this is a better use of time, but to what extent? Can we use it to identify traffic offenders, speeding, jaywalking or any other typically innocuous crime.

The bigger question is what is the tolerance for mistaken identity? Due to the databases used, it is proven that minorities, particularly African Americans, are more often mistaken than white people. Black women are disproportionately mistaken in Facial Recognition. So if the computer gets it wrong 1% of the time, is that a good result. We get 99 criminals off the street and 1 innocent person gets wrongly accused or convicted. What percent is acceptable? Moreover, is is fair for a person to have to defend themselves from baseless accusations because a computer picked them out of a lineup that they didn’t know they were in?

If used, virtually every person is a potential suspect in every crime and they are part of an ongoing virtual lineup in every case. You may be investigated, questioned, asked for an alibi, or even charged without ever knowing about a case because your face is in any database – mug shot, DMV, Instagram, LinkedIn, FaceBook, etc.

This area is rapidly expanding and there is little hope of putting the cat back into the box. This should be a legislative debate, but unfortunately it will likely first be led by criminal defense attorneys seeking justice for their clients.

If you have been charged with a crime, you need to consult with an experienced criminal defense attorney. For consultation, contact Michael Bouldin by clicking this LINK , email mike@bouldinlawfirm.com or call 859-581-6453 (581-MIKE).

Can I Spank My Children?

As both a criminal defense and family law attorney for over 25 years, the answer is not simply that you have the right to spank your children, there are varying degrees that are often interpreted differently by different judges, professionals and social workers.

The general rule is that you can spank your children as a corrective behavior measure so long as it does not leave a mark. Even the question of “leaving a mark” is measured drastically differently depending on a number of factors.

For example, light skinned or white children will more readily show a mark. Most professionals agree that if you spank your children, you should use your hand. That said, a hand print is often the first thing that will arise when they are filing abuse charges.

The second thing that is considered is if it was a thought-out punishment. Spanking while angry or without consideration is generally considered worse and more likely to be abuse. Though out may be 1, 2 or 3 swats, not ongoing or without a plan.

There are also various definitions which are used. The most common place that people go if there is a report of abuse is to Family Juvenile Court for DNA. DNA is Dependency, Neglect and Abuse. The case is sent to Juvenile court where the initial goal is to reunite the children with the parent(s). This is not criminal court and the standard for making a finding is much less than in criminal cases. The parent may be required to take parenting classes, undergo drug/alcohol testing, or seek abuse counseling.

If the county attorney considers it severe, the parent could also be charged with a crime. The standard for a criminal conviction is much greater than that required for a finding in Juvenile court. The defendant is entitled to a jury trial and representation if they cannot afford an attorney.

In defending a criminal charge, KRS 503.110 provides: The use of physical force by a defendant upon another person is justifiable when the defendant is a parent, guardian, or other person entrusted with the care and supervision of a minor or an incompetent person or when the defendant is a teacher or other person entrusted with the care and supervision of a minor, for a special purpose, and: (a) The defendant believes that the force used is necessary to promote the welfare of a minor or mentally disabled person or, if the defendant’s responsibility for the minor or mentally disabled person is for a special purpose, to further that special purpose or maintain reasonable discipline in a school, class, or other group; and (b) The force that is used is not designed to cause or known to create a substantial risk of causing death, serious physical injury, disfigurement, extreme pain, or extreme mental distress.

If you have been charged with child abuse, whether in Juvenile court or as a crime, you should hire an attorney to protect y our rights and advise you though the process. For consultation in Northern Kentucky, contact Michael Bouldin or call 859-581-6453 (581-MIKE) or email mike@bouldinlawfirm.com.

Help! My Attorney is on Vacation.

As a busy attorney for many years, I realize the necessity of going on vacation and getting away from the grind. I firmly believe that this time away allows me to rejuvenate and recommit to the practice and makes me a better attorney.

Unfortunately, this is little solace to those clients that need answers NOW. Having practiced for over 25 years, I have taken many steps to assure that the clients’ needs are being met and that the wheels of justice continue to turn.

Planning for a vacation, here are steps I’ve taken:

  1. Advise clients. I do not keep it a secret that I’m going out of town. This allows most clients, judges and opposing counsel to set realistic expectations.
  2. Have office staff available. My paralegal, Emily, does most of my scheduling anyway and has a general knowledge of most of my cases. As such, she is more often available during my trips.
  3. Have other attorneys available for emergencies. I have spoken to my partner, Kris Nevels, as well as a few other local attorneys who can cover in case of emergencies. For example, no one plans to get arrested for DUI and have court in 2 days. If that happens, plead NOT GUILTY and wait for return. Alternatively, call the office and we will do our best to have someone present for your arraignment.
  4. Plan down time both before and after vacation. This allows for clients in crisis or with emergencies to schedule in a timely manner.
  5. Allow minimal communication. Even when leaving the country, I schedule 15-30 minutes 2-3x/week to communicate with the office. While this is not ideal, it is similar to times when I am in the middle of trial. It allows my paralegal to prioritize and get answers to crises.

Another key to getting away is getting another professional do handle all of the planning and preparations. Julie@islandgirlvacations is exceptional at travel planning and finding the best deals. Full disclosure: she’s also my wife.

If you have questions or concerns or need legal assistance, contact Michael Bouldin by filling out the contact information, call 859-581-6456 (581-MIKE) or email mike@bouldinlawfirm.com. Of course, you can also contact Emily@bouldinlawfirm.com for scheduling.

What To Do If You Cannot Get Ahold of Your Attorney

Attorneys are notoriously difficult to get in touch with and the successful and busy ones even more so. So here is a list of dos and don’ts if you are having difficulty.

Do:

1. Be patient. This sounds simple but calling 3-5 times does not make the return call any quicker. From the attorney point of view, if everyone called 5 times, it would take five times as long to return everyone’s call.

2. Schedule. It may be difficult to get a hold of the attorney, but generally you can speak with a secretary, receptionist or paralegal. Tell that person that you are having difficulty and need to schedule a meeting or phone consultation. Once you are on the book, your chances are probably near 100% that the conversation can occur.

3. Ask the Paralegal. Similar to #2, the paralegal for the attorney often has great insight into your case and can answer most questions. Sure, some are better saved for the attorney, but others can be answered, handled and even resolved by the paralegal and often at a greatly reduced fee.

4. Discuss with the attorney their caseload and how they prioritize. If I explain that I’ll get to your post decree issue later, that a client is facing 20 years in prison this week, most clients can and do understand.

Don’ts:

A. Do not call repeatedly and leave multiple messages. This ties up the time available to return calls.

B. Do not call another attorney seeking free advice. The attorney handling your case knows about your case. If you seek free advice, you often get what you pay for.

C. Do not immediately change attorneys and give up. You chose this attorney because of their skill, experience among other things. If you want a new attorney who will text you back and immediately take all calls, then hire that attorney from the onset. If you want an attorney with a track record and busy clientele, you may have to occasionally wait.

If problems persist, discuss your concerns and set out expectations of both the attorney and the client. Most often, a compromise can be reached where the client knows that their problems are being addressed and concerns are handled in a timely and efficient manner.

If you are a client, call Emily at 859-581-6453 to schedule. If you need legal advice and do not have an attorney, contact Mike@bouldinlawfirm.com.