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.

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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).

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What Does a DUI Cost?

I am often asked, What is the cost of a DUI? The answer is not simple. According to national surveys, the cost of a DUI typically exceed $10,000. The question remains as to what does that cost involve.

A defendant should expect to pay $2,500-$5,000 for an experienced DUI/criminal defense attorney to represent on a first offense DUI charge. The cost may vary depending on the complexity of the case, whether it is a negotiated plea, suppression hearing, bench trial or a jury trial. The cost often also increases if it is a second, third or greater offense.

Other costs which should be considered in Kentucky. A typical assessment for DUI includes a drug & alcohol assessment and is $60. Once assessed, a standard 20 hour class will meet 10 times and costs $25/session.

If convicted, you will lose your license for 30-120 days and face mandatory costs, fees and court costs. The fine for a DUI, 1st offense, will range from $200-500. There is a mandatory DUI service fee in addition to court costs. The total for a minimum ($200) fine will be about $750. If you wish to obtain an ignition interlock device to continue full driving privileges, you will spend an additional $600.

The above examples are for Northern Kentucky. Each state has different mandatory fines as well as court costs. Kentucky charges $40 for reinstatement, while many states vary from $100-1500 for license reinstatement. None of this includes the increase in automobile insurance which is sure to follow a conviction.

If you have been charged with DUI, you should hire an experienced DUI attorney that regularly practices in your county of arrest. The attorney can guide you through the process and give you advice on how to best proceed. This may include a plea, but should include why a plea deal may be better and the consequences of a suppression hearing or trial of the matter.

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

Selected by SuperLawyers for criminal defense in state of Kentucky.
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Prosecutor Bullying in Lori Loughlin Case

Having practiced criminal defense for 25 years, I am often asked about high profile cases. While they are often treated differently than more average cases, the general public can learn a lot from these types of cases. The current federal case of the United States v. Lori Loughlin is one such example.

The case pending involves allegedly paying bribes in order to obtain admission for the children into various universities. My initial take is that there is a great amount of pressure to plead guilty, which is generally the case with all criminal charges. I believe that Lori Loughlin and most of the others DO have a valid defense. The federal bribery statute prohibits corruptly giving, offering, or promising anything of value to a federal public official or appointee with the intent of influencing him or her to perform an official act or to commit fraud. . It seems to be a stretch that these universities qualify as a federal agency or official. Moreover, the bribes were not paid to the university but to an agent which the stars hired to assist with admission. It may also be interesting defense tactic to determine what is a legitimate gift to the university v. bribe, and can your child receive preferential treatment because of a gift?

The most current development regards the additional charges which the government has brought since they refused to plead guilty. THIS IS A COMMON TACTIC utilized by many prosecutors to force a plea and to punish those who wish to exercise their constitutional rights. Prosecutors ARE bullies. If they are out to protect the public, and they believe that this is a valid additional charge, then all of the defendants should have faced the same charges. The reality is that they are trying to unduly punish those that exercise their right to trial.

If you are a defendant in a criminal case, hire an experienced defense attorney who can advise you throughout the process. Do not assume that the prosecutor is purely interested in justice – they want a guilty verdict. If you are not guilty, the trial tactics are just that and stand up for your rights! For consultation and representation in Kentucky and Ohio, call Michael Bouldin at 859-581-MIKE, that is 859-581-6453 or email mike@bouldinlawfirm.com.

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How to Get the Best Plea Deal

As a criminal defense attorney for over 20 years I am often asked about whether a client should take a plea deal or go to trial. To get the best plea deal the 1st rule of business is to organize your best legal defense.

The most important factor in evaluating whether a prosecutor offers a plea deal is their chance of success at trial. If they have a very good chance of success in gaining a conviction they are less inclined to offer a good deal to the defendant. Conversely, if a conviction is not guaranteed, a better plea deal can generally be negotiated.

Of course there are many other factors that play into a successful plea negotiation. Those include the defendant’s criminal history, the type and nature of the crime, whether rehabilitation outside of jail is likely, and often input from the victum (if any).

If you have been charged with any crime, whether it be a felony or misdemeanor or DUI, you should hire the best criminal defense attorney that you can find.

For consultations in northern Kentucky and Cincinnati call Michael Bouldin at 859-581-6453 (581-MIKE) or email mike@bouldinlawfirm.com. Talk to an experienced attorney before going to court!

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A Confession is Not Always Guilty

Probably the most difficult case to defend is when the defendant gives a confession or admission of guilt. That said, there are many cases where an admission does not mean the person is guilty.

I recently defended a case where 3 police officers alleged that my client confessed to the crime. Where were allegations that the police coerced a confession as well as other allegations that it was fabricated. There was no recording, video, or body cam of any statements of the defendant and there was no written confession.

Case ended up with the jury finding the defendant not guilty of all charges. This, also, without the defendant taking the stand.

That are often other circumstances which may surround an alleged admission. Those may include coercion, threats, or even over statement of what was actually stated. A defendant that is intimidated by the police may agree with their allegations in order to avoid immediate incarceration and arrest.

If you have been charged with a crime he did not commit your need an experienced an attorney. For consultation in Kentucky and Cincinnati call Michael Bouldin at 859-581-6453 or email mike@bouldinlawfirm.com

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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.

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Possession of Handgun & Drugs

Kentucky law allows for enhancement of any drug possession if the defendant also possesses a firearm. KRS 218A.992 provides:

Enhancement of penalty when in possession of a firearm at the time of commission of offense. (1) Other provisions of law notwithstanding, any person who is convicted of any violation of this chapter who, at the time of the commission of the offense and in furtherance of the offense, was in possession of a firearm, shall: (a) Be penalized one (1) class more severely than provided in the penalty provision pertaining to that offense if it is a felony; or (b) Be penalized as a Class D felon if the offense would otherwise be a misdemeanor. (2) The provisions of this section shall not apply to a violation of KRS 218A.210, 218A.1450, 218A.1451, or 218A.1452. 

The non-applicable provisions are as follows:
218A.210 – Schedule V Controlled Substances

218A.1450, .1451, .1452 – Trafficking, possession or cultivation of Savia

Interestingly, marijuana is NOT exempt from this enhancement. Despite possession of marijuana being a class B misdemeanor, the defendant who possession marijuana and a firearm is subject to begin penalized as a Class D Felon under 218A.992(1)(b). A class D felony carries 1-5 years in prison.

It is important to know your rights as well as possible consequences. While marijuana is illegal, the penalties may become much greater if you possess a firearm. If you are charged, contact Michael Bouldin at 859-581-6453 (581-MIKE) or email mike@bouldinlawfirm.com.

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