Is Marijuana Illegal?

Possession of marijuana is still illegal in Kentucky, even though many other states have legalized possession and authorized it as having medicinal value. Possession of under 8 ounces is a misdemeanor and over that amount may bring felony charges. Also, possession of any amount together with a handgun will likely bring felony charges.

One interesting area will be when a person is prosecuted in Kentucky while holding a valid prescription from another state. I believe the full faith and credit argument would apply. I do not believe, however, that you can possess in Kentucky simply because you can possess in Ohio legally; but that a prescription should hinder the prosecution.

Interestingly, marijuana remains on the books as a federal crime as well. While federal prosecutors have not chosen to prosecute sale or possession, it remains as a crime. I would be very interested in the first prosecution of a state or state-run entity by a federal prosecutor.

Recently, Cincinnati has voted to decriminalize possession of under 100 grams (about 4 ounces) of marijuana. The law remains on the books for the state of Ohio. If you intend to smoke, you would be much safer with a prescription. Additionally, it remains illegal to smoke and drive under Ohio OVI laws.

If you have been charged with possession of any drug, even marijuana, you should hire an attorney. If you pay the fine, you have pled guilty and it will remain on your criminal record. Call Michael Bouldin at 859-581-6453 or email mike@bouldinlawfirm.com for more information or consultation.

Is Spousal Support Affected by Fault in Kentucky?

Kentucky statutes do not provide fault as a basis to award or modify spousal maintenance, commonly referred to as spousal support, in Kentucky. That said, appeals decisions do allow for use of fault to be considered by the trial courts.

Statutory Concerns: An affair may be considered by a court to be a “fault” in a divorce proceeding. Kentucky is notoriously considered as a no-fault divorce state, hence why all divorces are legally termed DISSOLUTION. KRS 403.200,. the statute that governs spousal maintenance, does not provide for fault to be considered by a trial court in establishing maintenance. (Maintenance is also commonly referred to as spousal support or alimony.) KRS 403.200 states: Maintenance — Court may grant order for either spouse. (1) In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of a marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance: (a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (b) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. (2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including: (a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian; (b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (c) The standard of living established during the marriage; (d) The duration of the marriage; (e) The age, and the physical and emotional condition of the spouse seeking maintenance; and (f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. As you can see, nowhere in the statutes does FAULT to be considered.

Case Law: According to a landmark case, Chapman v. Chapman, 498 S.W.2d 134 (Ky. 1973), the judge can only consider adultery when deciding how much alimony to award. The judge can’t, however, prevent a guilty spouse from receiving alimony just because that spouse committed adultery. The only effect of fault (like adultery) on alimony in the Kentucky courts is on the amount awarded. Moreover, Chapman made a finding based on the lack of some suggested language instead of what was actually included in the statutes. As a practical matter, Chapman is an older decision, and the practice of Kentucky’s courts and lawyers has generally been not to raise the issue of fault at all, even in alimony cases. The majority of legal experts agree that “fault, insofar as who caused the breakup of the marriage, has virtually been eliminated in Kentucky.” A more recent decision in Plat v. Platt, 728 S.W.2d 542 (1987) states, “While we accept the holding of Chapman, noting our prior criticism, here is where we draw the line limiting when fault may be considered to the disregard of KRS 403.200. We believe if considering fault in determining the amount of maintenance has any redeeming quality, it is that it may prevent a windfall to the faulty party seeking maintenance.”

For more information or to consult a divorce attorney with 25 years of experience in Northern Kentucky, call Michael Bouldin at 859-581-6453 or email mike@bouldinlawfirm.com.

Expungement – ReStart Your Life

Your criminal record may be holding you back. Expungement may be the answer to restart your life! Many people do not know how easy it is for a potential employer to look into your criminal background. This may include traffic offenses, misdemeanors, domestic violence and felonies. Fortunately, many of these cases can now be expunged from your record.

Expungement varies from state to state. In Kentucky, any case which is dismissed may be expunged 60 days following the dismissal. This includes EPO, domestic violence allegations, misdemeanors, traffic and felony offenses.

If you have had a felon case proceed through diversion: such as a child support or first time drug possession, you can likely have that expunged after you complete the diversion.

If you have been convicted of a misdemeanor, you will like have to wait 5-7 years before you can have it expunged. The variance is that the 5 year wait only begins after you have completed probation or CD time. Other requirements may include no future offenses and no other offenses within 5 years. DUI cases require a 10 year wait because of the look back period under current DUI laws which enhance penalties.

Only certain felonies are eligible for expungement. Those are typically lower (class D) felonies, all of which are non-violent in nature. Eligible felonies include: child support, PCS and many other drug charges, theft, bad checks, forgery, fraud, and numerous other class D felonies. The process typically takes 30-60 days and is not time intensive for the client.

There is a $40 criminal background check which is required prior to actual filing. The court charges $100 for misdemeanor convictions, $500 for felony convictions and there is no court fee for dismissals and acquittals. Attorney fees typically are $500-1000, depending on the charge. For consultation and representation, call Michael Bouldin at 859-581-6453 or email info@bouldinlawfirm.com.

Possession of Controlled Substance Defense

As a criminal defense attorney for 25 years, I am often asked what help an attorney can provide when a person is charged with PCS, or possession of a controlled substance. The simple answer is: A LOT!

First, an attorney can help guide you through the process. Judges will often set a relatively high bond depending on the substance found. The reason is that typically a heroin user will get out of jail and reuse, greatly increasing the likelihood of an overdose. An experienced attorney can talk with the Defendant and the family to try to prevent this type of occurrence, which may endanger their life as well as violate their bond conditions. Often, a treatment facility will expedite the release from custody.

An attorney will also review all evidence, evaluate your case and determine if a Motion to Suppress should be filed. Many times an attorney can question the arresting officer at the preliminary hearing before they have had an opportunity to review their anticipated testimony with the prosecutor. Additionally, some prosecutors will not consent to a diversion or other offer if a suppression hearing is held.

An attorney can also evaluate the relative strengths of your case and advise what is a good or bad resolution and what should be an acceptable plea deal if such is warranted. Special consideration should also be taken if there is an allegation of trafficking. If available, an attorney can help you through the diversion process and file for expungement of the charges if the diversion is successful.

For consultation in Cincinnati or Northern Kentucky, contact Michael Bouldin at 859-581-6453 (581-MIKE) or email mike@bouldinlawfirm.com.

Divorce v. Dissolution

As a family law attorney for 25 years, I am often asked what is the difference between a divorce and dissolution. In Kentucky, there is no difference as all cases proceed as dissolution and Kentucky is a “no-fault” divorce state.

Essentially, the historical difference is that a divorce has contested issues, while a dissolution the parties agree on the issues at hand. Since I practice family law in Ohio, they still recognize the difference between divorce and dissolution. A dissolution can only be filed if the parties agree on all issues: custody, parenting, division of assets, debts, marital and non-marital property, child and spousal support (if any). If the parties do not agree on all issues (or if they agree on nothing), then the case proceeds as a divorce.

Kentucky lawyers and courts often refer to contested and non-contested cases. The contested cases are essentially divorces, while the non-contested cases are equivalent to the Ohio dissolution. Virtually all attorneys charge on an hourly basis, however some non-contested and relatively simple divorces/dissolutions can be charged on a flat fee basis.

Regardless of whether your case is contested or not, it is wise to have an experienced family law attorney discuss with you and review your case prior to signing any Agreement. For a conslutation in Northern Kentucky or Cincinnati, call Michael Bouldin at 581-MIKE, 859-581-6453 or email mike@bouldinlawfirm.com.

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What Is a Cheap Divorce?

Most people think of a cheap divorce as one that is quick, relatively painless and does not involve a great deal of legal work. Most often they are looking for an inexpensive attorney to do the work.

The legal work is largely dependent on the number of issues which may be involved. For example, if there are children involved then there are issues regarding custody, parenting decisions, parenting time, support, division of expenses, holidays, summers, vacations and insurance. Even when the parties think they have agreed on all issues, they usually forget a few pieces which may turn out to be a source of major conflict in the future.

The real questions that I look for is value. Did you get what, or better than, you paid? Would you rather have an attorney charge you $500 and sign papers or charge $5,000 and save you significant future battles and costs, or even uncover $50,000 of assets? It is easy to see how inept representation can cost far more than the dollars you save.

I recently had a case where the parties failed to include any language on relocation. When the mother wanted to move and assumed that she could take the children, significant litigation and legal fees were incurred by both parties, in addition to extreme hard feelings against one another. Had the parties included language regarding relocation, it is possible that the extensive litigation could have been avoided.

Generally “cheap” attorneys have less experience or qualifications than those that bill at a higher rate. Of course, there are some very good (and also some not so good) attorneys at any rate. That said, those of us attorneys charging a higher rate generally have experience to validate the hourly fee.

Easy, simple asset divorces do not have to cost as much and can often be accomplished for a set fee or. Often the attorney charging $300/hour will provide in depth answers without any research because they already know and understand the law. While the hourly rate may be more, the total cost may be less than with an attorney that charges $100-150/hour. Additonally, most good and busy attorneys do not provide free consultations other than your first phone call to schedule.

If you have questions or wish to further inquire, please call me. I’m not afraid to give a quote over the phone. For advice on divorce in Northern Kentucky or Cincinnati, contact us at Info@bouldinlawfirm.com or call 581-MIKE (859-581-6453).

What Are Self Defense Gun Laws In Kentucky?

There are a few new changes to gun law in Kentucky, notably is that it is no longer required to have a CCW permit to carry a concealed handgun. Kentucky has also enacted a stand-your-ground law which provides additional defense if you use a firearm to defend yourself in your home or vehicle.

As a criminal defense attorney associated with the United States Concealed Carry Association (USCCA), I have had the privilege of defending many people charged with various homicides and with possible self-defense claims.

Under Kentucky law, KRS 503.055, A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if: (a) The person against whom the defensive force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle.

There are other provisions and exceptions to this law, commonly known as stand your ground law. For example if the other person is a lawful resident, the exception does not apply (see Oscar Pistorius). The protection also does not apply if the victim is a police officer, if the shooter provokes or if the shooter is the initial aggressor.

Historically no felons were permitted to own or possess a firearm, with more severe penalties for handguns. With some changes to the law, many felonies are now eligible for expungement. Once expunged, the felony is removed from your record and you may then own or possess firearms.

If you must use a firearm or lethal force in self defense, or you have otherwise been charged with a crime involving a firearm, you should immediately hire an attorney. For consultation in Cincinnati or Kentucky, call Michael Bouldin at 859-581-6453 (581-MIKE) and leave a confidential message. Email mike@bouldinlawfirm.com.

Does Child Support Stop if My Child Attends College?

Often asked is When does child support terminate? Generally, child support stops when your child turns 18 and graduates from high school. If the child is still 18 and attending school, it stops when the child graduates or turns 19, whichever is first.

Much less often is the case where a 17 year old goes to college. If the 17 year old is attending a local university/college and living at home, the case law is clear that child support continues until age 18. what is less clear is whether child support does (or should) terminate if the child goes away.

The statutes in Kentucky do not make allowances for a 17 year old going away to school. The statute is clear that it continues until age 18. Kentucky divorce/dissolution courts are courts of equity. That is, the court can consider if continuation of child support is equitable or if it leads to an inequitable result. For example, if the paying party is paying 100% of the college, including room and board, then it may be inequitable for that person to continue paying support to the other parent. On the other hand, if both parties have incurred debt and continue to support their child, it may be more equitable for the child support to continue.

Important to remember is that child support doe snot automatically change if only the eldest child emancipates and there are other minor children in the home. Child support changes when either party requests a modification; generally the paying spouse requests that it be lowered when a child emancipates.

If you have questions about dissolution, child support or other post-decree matters, contact Michael Bouldin at Bouldin Law Firm at 859-581-6453 (581-MIKE) or email info@bouldinlawfirm.com.

What To Expect After DUI Arrest In Kentucky

If you have been arrested for DUI in Kentucky, there are a number of steps.

First, you will appear in court soon after the arrest. If you are in custody, you will appear on the next business day. On a first offense, you will typically be granted an OR (own recognizance) bond after you have been in jail for 3-5 hours. If you are released from jail, you will be given paperwork with your next court date, which is generally in 1-2 weeks.

Your first appearance is called arraignment. The arraignment is simply to advise you of the charges, potential penalties and allow for a plea of either guilty or not guilty. If you plead guilty, you will be sentenced at that time. It is strongly recommended that you hire an attorney as early in the process as possible. If you have not yet consulted an attorney, plead NOT GUILTY and then ask for time.

After your Not Guilty plea, the case will be scheduled for a Pre-Trial Conference. This gives the defense attorney an opportunity to review all of the case file, including video, officer notes, field notes, and reports. Often the attorney will also “pre-try” the case with the arresting officer to determine the strength of the prosecution’s case as well as any suppression issues which may be present.

Possible penalties for first offense DUI in Kentucky include 3-30 days of jail and/or $200-500 fine, 30-120 day license suspension, mandatory DUI service fee, court costs, Alcohol/Drug evaluation and any classes recommended (20 hour minimum). The costs and fees will range from $750-$1050. If an aggravating circumstance exists, there is a mandatory 4 days of incarceration.

Realize that often there are other charges which accompany a DUI. Those may be traffic offenses, license or insurance issues, or possession of some other illegal substance. Citations may also include felony charges for wanton endangerment, assault, or homicide charges. These may be dismissed or may be more serious than the DUI charge and require special care.

If you have been charged with DUI or any other crime in Kentucky, you should seek legal advice and hire an experienced criminal defense attorney. For consultation in Northern Kentucky or Cincinnati, call Michael Bouldin at 859-581-6453 or email mike@bouldinlawfirm.com.

Marijuana Dismissal in Cincinnati

Yesterday I represented a criminal defendant charged with possession of marijuana in Hamilton County, Ohio. While I cannot be certain without a thorough research of all marijuana cases in Cincinnati, I believe that was the first case that the City of Cincinnati agreed to dismiss a case for possession of marijuana in Hamilton County. As has been widely publicized, the City of Cincinnati has passed city-wide legislation to decriminalize possession of marijuana for personal use.

My client, who will remain nameless to protect his identity, was charged with possession of marijuana, being less than 100 grams. (Expungement will be forthcoming). The actual amount was less than 14 grams,clearly a “personal use” amount and there was no other indicia of trafficking or other illegal activity.

The defendant was smoking inside of his car when the officer approached. He was polite, admitted to smoking and allowed search of the vehicle. While not certain, having practiced criminal defense for 25 years, I am confident that the defendant’s compliance and attitude toward the officer helped in the resolution of the case.

This Defendant’s case has been pending for awhile, and was scheduled for trial on August 15, 2019. Counsel for the Defendant had been scheduling the matter to try to have the trial scheduled after City counsel could consider and vote on the proposal to decriminalize possession.

Warning: possession of marijuana remains a state crime ion both Ohio and Kentucky, as well as a federal crime. The decriminalization in Cincinnati is a city counsel ordinance and may only be available as a choice by city prosecutors. Additionally, other crimes such as possession of drug paraphernalia may or may not be prosecuted.

If you have been charged with any crime, contact an attorney to protect your rights. In Northern Kentucky and Cincinnati, contact Michael Bouldin at 859-581-6453 (581-MIKE) or email mike@bouldinlawfirm.com.