Florida Stand Your Ground Law Immunity (Briefly)

Florida Statute 776.032, otherwise known as the “Stand Your Ground” law, allows for a person to be immune from criminal prosecution (arresting, detaining in custody, and charging) for justifiable use of force.  The law eliminated a long standing principal that a person must first retreat under certain circumstances.

A defendant asserts the claim of immunity by filing a pretrial motion to dismiss.  The court then conducts a pretrial evidentiary hearing to decide if immunity should apply to the defendant. The defendant has the burden to prove that immunity attaches by a preponderance of evidence.  If the court denies the motion, the defendant may still assert justifiable use of force at trial.

The text of the statute is below:

776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.

(1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s.776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless the person against whom force was used or threatened is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use or threatened use of force as described in subsection (1), but the agency may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

 

Please seek the advice of attorney.

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10 Rules for Dealing with Police

Most people are unprepared to handle police encounters. Few people understand their constitutional protections. As a result, when stopped by police, many people unknowingly waive many of their rights.  A group called Flex Your Rights has put together informational videos and they have made the videos available on Youtube.  The video and the information echos and reinforces many of the articles I have authored on this blog about invoking your rights and not making statements to police.

The 10 Rules for Dealing With Police

1.  Always be calm and cool.

2.  You always have the right to remain silent.

3.  You have the right to refuse searches.  “I don’t consent to searches.”

4.  Don’t get tricked.  Police may legally lie to you.

5.  Determine if you are free to go. “Are you detaining me or am I free to go?”

6.  Don’t expose yourself!

7.  Don’t run from police.

8.  Never touch a police officer.

9.  Report Police Misconduct. Be a good witness.

10.  You do not have to let them in your home.  “I can’t let you in without a warrant.”

Highlights from Frankfort

Here is a review of just a few of the things going on in Frankfort:

Senate Bill 79 The Cannabis Freedom Act:  would make the possession of two ounces of marijuana or less a violation punishable by a maximum fine of $75.   It would also make the cultivation of 5 or fewer plants a misdemeanor.

House Bill 141 would establish the Problem and Pathological Gamblers Awareness and Treatment Program.

House Bill 135 is related to driving under the influence and would restructure the existing penalties from a four-tiered structure to a three-tiered structure; expand the look-back window for prior offenses from five years to ten years, and to allow forfeiture of motor vehicles used in a DUI if the operator’s license had been previously suspended.

Expectation Of Privacy Is Not Absolute

Although the word “privacy” is not written in the Constitution, we might all agree that each of us has a right to privacy. The exact size and shape of that right is sometimes not well defined. The most obvious place a person can expect to have privacy is inside their home. The further removed from their home and the more available a place is to the public, the less of an expectation of privacy that a person should have.

While you may enjoy an expectation of privacy in your home, you do not have the same right to privacy in someone else’s home. For example, if the police come to your home to knock and talk you have a right to privacy in your home and you can choose to not speak to them and not allow them inside your home (under normal circumstances). However, if you are visiting your neighbor for dinner and the police come to your neighbor’s home while you are there, your neighbor may allow the police to come inside and search the entire house regardless of your wishes. You would not be able to claim that you had an expectation of privacy in your neighbor’s home.

Not only do you not have much of a right to privacy inside a home that you do not normally reside, you also do not have a right to privacy when you are in public. Also, if something can be seen, smelled, or heard by the public; it is not “private”. Police officers pulling up to your front door may be prohibited from just wandering into your house, but anything that can be sensed by a member of the public from just outside your home is fair game.

In a recent case where the police received an anonymous tip, they were able to discover a meth lab because evidence of the lab was out in the open for the whole world to see. Everything the police needed to begin an investigation was in their plain view:

… An anonymous tip had been received about an address on Richmond Road in Berea, Kentucky. He and Detective Parker responded to the tip. When they pulled up to the residence and into the driveway, Detective White detected a strong chemical
Odor to the north side of the garage, which was attached to the house. He saw a
Plastic bottle that appeared to have been used as an HCl generator in the
Manufacture of methamphetamine. The garage had two doors; one door was
Closed and the other one was open. No one was in the garage when they looked
Inside.

Due to the dangerous situation created by the presence of the chemicals and equipment used to manufacture methamphetamine, the police carried out an extensive search of the premises looking for persons that might be present. During the search, the police discovered a person inside the home who ultimately was arrested and charged with manufacturing methamphetamines. The person did not own or reside in the house, but was merely related to the owner and previous residents.

Because the items and smells the detectives discovered out in the open indicated that illegal activity was afoot and the presence of the chemicals created an emergency situation, they were able to carry out a search. Furthermore, since the person operating the meth lab did not reside in the house, he could not expect to have privacy in the house and did not suffer any violation of his right to privacy. When the drug manufacturer tried to say that he had an expectation of privacy in the home, the court denied his argument because he did not live in the home or own the home. In this case, it is said that the accused did not have “standing” to argue that he had a right to privacy.

The full case is below.

http://opinions.kycourts.net/coa/2013-CA-001163.pdf

 

A Really Strange Super Bowl Ad About The Heroin Epidemic

A strange but poignant Super Bowl ad about heroin ran in the St. Louis market.  We did not see it here in Northern Kentucky but I have posted it below for your review.   The ad was created by the National Council on Alcoholism & Drug Abuse in St. Louis. It aimed to “raise awareness about the heroin and prescription painkiller epidemic in the St. Louis area.”

The video has a light hearted sounding song with very serious and dark lyrics.  NCADA council director Howard Weissman told the St. Louis Post-Dispatch that nearly 2,300 young people in the region have died from heroin use since 2007.

 

Here in northern Kentucky, we have our own heroin epidemic to deal with; as thousands are petitioning Kentucky lawmakers to pass past due legislation to address the heroin issues.  A group called Northern Kentucky Hates Heroin has been leading the way.

A story in the Enquirer set out the events that are taking place in Frankfort:

More than 130 Northern Kentucky residents, gripped by a nationwide heroin epidemic that has hit their community too many times, descended Tuesday on the Kentucky Capitol demanding action from the state Legislature.

“Now is the time,” said Charlotte Wethington, a recovery advocate and mother of Matthew “Casey” Wethington, who died at 23 in 2002 from a heroin overdose.

The Northern Kentucky residents – sisters, mothers, fathers, grandparents and recovering addicts – were moved by Jessica Padgett, a Campbell County resident whose brother died in 2011 from suicide after struggling with heroin addiction, to demand change on the first day of the 2015 Kentucky legislative session.

They just might get it. Gov. Steve Beshear surprised the group by showing up at the rotunda and promising help from the state.

“We are going to make sure that the Legislature will not leave this town until we’ve passed comprehensive legislation on heroin,” Beshear said, eliciting a roar from the crowd.

The governor’s vow was welcomed by the families, whose emotions ranged from disappointment to outrage last year when the lawmakers left Senate Bill 5, known simply as “the heroin bill,” unaddressed.

“I love what he said,” said Kimberly Wright of Cold Spring, whose daughter is recovering from heroin addiction and lost a stepsister to heroin. “I am hopeful. But we’ve heard promises before.”

Parents and relatives with posters plastered with photos of their children who died from heroin overdoses lined up in the rotunda after carrying the posters through the Capitol, holding them up for anyone who would glance at them to see.

Rhonda Dupuy of Grant County stood silently, tears streaming, clutching a framed photo of son Coty Glass, who died at 22 from heroin.

“We had an appointment for Vivitrol (a medicine-assisted treatment) on May 27. There was a holdup for insurance,” Dupuy said softly. Her son died May 25 of a heroin overdose.

Mary Hunt of Union held out a framed photo of her brother-in-law Kevin Lipscomb, a paratrooper whom, she said, suffered from post-traumatic stress disorder and died of a heroin overdose June 5.

“He was alone,” she said.

Since then, Hunt and nearly every family member who went to Frankfort on Tuesday, has been supporting other families and advocating for treatment for heroin addicts in Kentucky.

Several said they’ve had their limit of the stories about Kentucky residents dying from heroin overdoses and other health complications.

“We can’t do another year,” Hunt said. “How many people have lost their lives because (legislators) can’t agree on something?”

Present, too, were members of NKY Hates Heroin, the family of Nicholas Specht, who died at 30 from an overdose in the bathroom of his family’s Fort Thomas home. Eric Specht, Nicholas’ father, told the crowd in the rotunda he did not have naloxone to try to save his son. The drug blocks opiate receptors, forcing overdose victims into immediate withdrawal and restoring breathing if administered soon after overdose.

“I didn’t know what naloxone was,” Eric Specht said. And the first responders to his home did not have the drug, because Kentucky law doesn’t allow police to carry it.

That needs to change, the family members agreed.

Pennie Tackett, whose son has been in recovery for nine months, was angry.

She carried a sign demanding needle-exchange allowance in Kentucky.

“HIV is coming,” she said.

Her son suffered from an abscess from a dirty needle.

Padgett handed petitions with more than 2,000 signatures favoring House Bill 195 to Rep. Tom Burch, D-Jefferson County, whose bill calls for treatment, expansion of the overdose-reversal drug naloxone and needle-exchange allowance – an issue that divided some lawmakers in Frankfort last year.

The families demanded compassion from legislators.

“This is not about politics. It’s about people who are dying from this epidemic,” Wethington said in the Rotunda.

The families and recovering addicts from the Grateful Life Center in Erlanger and Brighton Recovery Center in Florence were buoyed by Beshear’s promise of legislation this session to address the heroin epidemic.

But they are not giving up their fight. Padgett addressed them after Beshear departed.

“This is the beginning,” she said. “There is strength in numbers.”

You can read the full Enquirer story and watch video related to the event here.

Entrapment: Induced and Encouraged

Entrapment is an often times misunderstood legal concept; that under the right set of facts, is a defense to criminal charges.  If a person can successfully argue entrapment, they will be found not guilty of the particular crime they have been charged.

The Kentucky Entrapment Statute reads:

505.010 Entrapment.
(1) A person is not guilty of an offense arising out of proscribed conduct when:
(a) He was induced or encouraged to engage in that conduct by a public
servant or by a person acting in cooperation with a public servant seeking
to obtain evidence against him for the purpose of criminal prosecution;
and
(b) At the time of the inducement or encouragement, he was not otherwise
disposed to engage in such conduct.
(2) The relief afforded by subsection (1) is unavailable when:
(a) The public servant or the person acting in cooperation with a public
servant merely affords the defendant an opportunity to commit an offense;
or
(b) The offense charged has physical injury or the threat of physical injury as
one (1) of its elements and the prosecution is based on conduct causing
or threatening such injury to a person other than the person perpetrating
the entrapment.
(3) The relief provided a defendant by subsection (1) is a defense.

Many people claim entrapment, but it is a very difficult defense to apply under the law.  The key to a successful entrapment defense is that “there is evidence that the defendant was induced by police authorities, or someone acting in cooperation with them, to commit a criminal act which he was not otherwise disposed to commit.” Commonwealth v. Day, 983 S.W.2d 505, 1999 Ky. LEXIS 1 (Ky. 1999).

An example of  a case that involved the defense of entrapment happened when a man was arrested and charged with trafficking cocaine after he was induced and encouraged by an undercover police officer to purchase cocaine and sell the cocaine back to the undercover officer.  The twist to the story is that the undercover officer was a female who had been sexually involved with the defendant in the past.  The defendant  had never transferred drugs before; he only knew where to locate the cocaine because of his own prior usage; and he received no benefit from his participating in the transfer other than satisfying the confidential informant for whom he had  “feelings”.

Basically, for entrapment to be a defense, the police officer had to devise the plan and work hard to convince the person to carry out a crime that the person would not normally do without the encouragement of the police officer.  Even in cases where undercover officers offer to sell drugs or set up prostitution stings, they are usually catching people who did not need the degree of inducement and encouragement to reach the level of entrapment.

However, entrapment is a very effective defense when the right circumstances exist.  It is imperative that before you are brought before the court, that you retain a criminal defense lawyer who can review your case and look for, not only the defense of entrapment, but other defenses that may help protect your rights as well.  The criminal justice system is unforgiving, do not face it alone.

Remember to never make any statements to the police without your attorney present.  Always be respectful, but invoke your rights to remain silent.

I am a criminal defense attorney located in Fort Thomas, Campbell County, Kentucky.  I practice criminal defense law throughout northern Kentucky.  I am also licensed to practice law in Florida.  Nothing here is intended to create an attorney-client privilege. This is only provided as general information.

 

DEA agent confiscating marijuana a schedule I controlled substance

Controlled Substances, Marijuana and Kentucky’s DUI Statute

Drugs are classified by the United States Drug Enforcement Administration into 5 different classes called “Schedules”.   The classes are supposedly based on the accepted medical use and each drug’s potential for abuse and dependency.  However, “Schedule I” contains both heroin and marijuana.  I am not a scientist or a medical doctor, so I cannot tell you if there are legitimate medical uses for marijuana or not.  I know there is a lot written on the topic; and states are starting to pass laws recognizing the use of marijuana for medicinal purposes.  In my entire life, I have never heard of anyone overdosing on marijuana; but it seems like not a single day goes by that we here in northern Kentucky don’t lose someone to heroin overdose.  Heroin and marijuana should not be classified in the same schedule.

Schedule I

Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Schedule I drugs are the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence. Some examples of Schedule I drugs are:

heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3,4-methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote

Schedule II

Schedule II drugs, substances, or chemicals are defined as drugs with a high potential for abuse, less abuse potential than Schedule I drugs, with use potentially leading to severe psychological or physical dependence. These drugs are also considered dangerous. Some examples of Schedule II drugs are:

cocaine, methamphetamine, methadone, hydromorphone (Dilaudid), meperidine (Demerol), oxycodone (OxyContin), fentanyl, Dexedrine, Adderall, and Ritalin

Schedule III

Schedule III drugs, substances, or chemicals are defined as drugs with a moderate to low potential for physical and psychological dependence. Schedule III drugs abuse potential is less than Schedule I and Schedule II drugs but more than Schedule IV. Some examples of Schedule III drugs are:

Combination products with less than 15 milligrams of hydrocodone per dosage unit (Vicodin), Products containing less than 90 milligrams of codeine per dosage unit (Tylenol with codeine), ketamine, anabolic steroids, testosterone

Schedule IV

Schedule IV drugs, substances, or chemicals are defined as drugs with a low potential for abuse and low risk of dependence. Some examples of Schedule IV drugs are:

Xanax, Soma, Darvon, Darvocet, Valium, Ativan, Talwin, Ambien

Schedule V

Schedule V drugs, substances, or chemicals are defined as drugs with lower potential for abuse than Schedule IV and consist of preparations containing limited quantities of certain narcotics. Schedule V drugs are generally used for antidiarrheal, antitussive, and analgesic purposes. Some examples of Schedule V drugs are:

cough preparations with less than 200 milligrams of codeine or per 100 milliliters (Robitussin AC), Lomotil, Motofen, Lyrica, Parepectolin

Even in Kentucky, marijuana is treated differently under some of the most used criminal statutes.  In Kentucky’s DUI statute, a person can be prosecuted for DUI if:

“While the presence of a controlled substance listed in subsection (12) of this section is detected in the blood, as measured by a scientifically reliable test, or tests, taken within two (2) hours of cessation of operation or physical control of a motor vehicle;”

But Kentucky exempts Marijuana from being classified as a “Schedule I” controlled substance for this particular section of the statute.

(12) The substances applicable to a prosecution under subsection (1)(d) of this
section are:
(a) Any Schedule I controlled substance except marijuana;
(b) Alprazolam;
(c) Amphetamine;
(d) Buprenorphine;
(e) Butalbital;
(f) Carisoprodol;
(g) Cocaine;
(h) Diazepam;
(i) Hydrocodone;
(j) Meprobamate;
(k) Methadone;
(l) Methamphetamine;
(m) Oxycodone;
(n) Promethazine;
(o) Propoxyphene; and
(p) Zolpidem.

This does not mean that you can smoke marijuana and still legally drive a vehicle.   Section (1)(c) clearly covers all the bases by prohibiting driving under the influence of “any other substance or combination of substances which impairs one’s driving ability.”

I hope you found the above information helpful.  Remember, never make statements to the police without your lawyer present.

 

When Police Knock, Don’t Open The Door And Let Them See Or Smell Your Contraband

More often than ever before, police are showing up at northern Kentucky homes or places of business to “talk”.  These instances of contact with police officers are adversarial to your liberty and you should not engage with police officers without the presence of an attorney.  Police do not come to your home for coffee and small talk.  Remember, never make statements to the police.

According to the Kentucky Supreme Court, “the knock and talk procedure involves law enforcement officers approaching a home for the purpose of obtaining information about a crime that has been committed, a pending investigation, or matters of public welfare.”  In reality, if the police have the evidence to arrest you, they aren’t showing up to your house to knock and talk.  The sole purpose of the knock and talk is to get you to incriminate yourself and/or gain entry into your home so that they can gather enough evidence to arrest you and charge you with a crime.

It is perfectly within the law for a police officer to approach your front door.  Police know this and take advantage of the “free” access to place themselves just outside your home.  Just outside the front door of your home, where smells and sounds may drift unintentionally to the officers nose, ears, and eyesight.   In the case of Quintana v. Commonwealth, 276 S.W.3d 753, 758, 2008 Ky. LEXIS 260, 10 (Ky. 2008) the  Kentucky Supreme Court described the entrance to a person’s residence as being the point of access to the public.

“The main entrance to a home is so widely perceived by the public as the point of access for the public engaged in legitimate business, whether it is by pollsters, persons seeking assistance, postal carriers, delivery persons, or Girl Scouts selling cookies, that it amounts to common knowledge that the public may at least go up to a home’s front door, if the way is not barred. While such members of the public are not guaranteed access to the inside of the house, they may certainly approach the entrance and attempt to speak with the residents.”

It is assumed, by the law, that the public has the right to approach the front entrance of your residence and knock on the door.  You cannot expect your driveway, walkway, and front entrance to be private.   Police officers are afforded the same standing as the public. The officer who approaches the main entrance of your house has a right to be there, just as any member of the public might have. When a resident has no reasonable expectation to privacy if someone approaches his front door for a legitimate purpose, police officers may also so approach.   While on your property, police are free to keep their eyes, nose, and ears open to their surroundings.  The police do not need a search warrant to see, hear, or smell what any member of the general public may see, hear, or smell.

Any and all interactions between you and the police during a “knock and talk” are up to you.  It is a completely consensual situation.  If the police do not have a warrant to enter your house or any other exception or an emergency situation is not afoot, they must obtain your consent to enter or open your door.

Just as you are not required to answer your door or respond to questions when a door to door salesman comes knocking, so it is with a police officer, regardless of whether the failure to answer the door is intentional or the result of your inability to hear the knock.   Just as any member of the public can be told and required to leave your premises, so can an officer.

Seek the assistance of a criminal defense lawyer before you take your liberty in your own hands.

 

 

 

 

Some Common Reasons That Police Stop Vehicles To Catch Drivers Driving Under the Influence

1.  Weaving:  In Kentucky, many DUI traffic stops are made on the basis of an alleged violation of driving on the left side of the roadway, crossing the center line, or “weaving”.  There is no specific mention of “weaving” in the Kentucky statutes.   However, the standard is pretty low for an officer to be able to show you were “weaving”.  Either you had to be in violation of some traffic law (there are several statutes that address driving on the left side of the road) or that the officer was “reasonable” in his suspicion of the motorist’s conduct and that a crime was about to be committed.

2.  Seat Belt Laws:  The Kentucky seat belt law states, in part: “A person shall not operate a motor vehicle manufactured after 1981 on the public roadways of this state unless the driver and all passengers are wearing a properly adjusted and fastened seat belt..”.  There are more specific requirements for children but for the purposes of this article, the statute is clear and gives officers good reason to investigate you for DUI.   There are very few defenses to the seat belt stop.  If the officer can see that you are not wearing it, its going to be a valid stop.

3.  License Plates:  Police officers may check for suspended vehicle registrations.  There is no right to privacy .  Officers do not need a reason to run a license plate number.

4.  License Plate illumination:  A police officer may stop a vehicle for failure to illuminate your license plate.  It is always a good idea to inspect your vehicle for working lights before hitting the town.

5. Speeding:  Speeding or any traffic violation is reason enough for a police officer to stop your vehicle with the underlying purpose to investigate a DUI or to try to catch other criminal activity.  Don’t speed.

6. Traffic Signal Violation:  Use your signal always.

7.  Sleeping in Vehicle:  An officer will approach a vehicle that he or she believes there is someone sleeping in that vehicle.  You can still be arrested for DUI if you were sleeping in your vehicle, it is especially important to not make statements to the police because the burden is on the officer to prove you were in control of the vehicle. The officer will ask you how you got there, have you been drinking, where you have been; all with the intention of getting enough information to show that you had been driving the vehicle.

Always, error on the side of caution and call a cab if you are drinking.   If a police officer wants to stop you, they can probably find a reason to stop you.  While a good attorney can help find defenses to each of the above stops, the headache, embarrassment and financial pain of dealing with DUI is avoidable.  Be smart.

~ Northern Kentucky Attorney Ken Turner defends citizens arrested for DUI and other traffic related violations.  Call (859)432-3733 to schedule a free consultation.

 

New Ohio Law Addresses The Heroin Epidemic By Requiring Education About Pain Pill Abuse

A new law requires Ohio schools to teach children about the dangers of prescription painkillers, a leading gateway drug to heroin abuse.  Pain killers (pills) were once more readily available in many areas in the country than they are now.  The highly addictive opioid pain killers led many people who had become reliant on the prescription drugs to turn to illegal methods to feed their addictions.  When the local governments and law enforcement began cracking down on drug mills and the doctors prescribing the pills, the pill supply dried up and the price of the pills skyrocketed.  The void left was then filled by the much cheaper opioid, heroin.   Young people are the most likely to develop addictions to opioids.   Dealing with heroin and the related crimes have become the focus of many policy makers and local governments in northern Kentucky.   The jails in northern Kentucky are being filled by those arrested for either trafficking or possessing heroin.

To read more click here.