Monthly Archives: January 2015

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.

 

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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.

 

Link

It’s a tradition as old as New Year’s: making resolutions. We will not smoke, or sojourn with the bucket of mint chocolate chip. In fact, we will resist sweets generally, including the bowl of M&M’s that our co-worker has helpfully positioned on the aisle corner of his desk. There will be exercise, and the learning of a new language.

It is resolved.

So what does science know about translating our resolve into actual changes in behavior? The answer to this question brings us — strangely enough — to a story about heroin use in Vietnam.

In May of 1971, two congressmen, Robert Steele from Connecticut and Morgan Murphy of Illinois, went to Vietnam for an official visit and returned with some extremely disturbing news: 15 percent of U.S. servicemen in Vietnam, they said, were actively addicted to heroin.

The idea that so many servicemen were addicted to heroin horrified the public. At that point heroin was the bete noire of American drugs. It was thought to be the most addictive substance ever produced, a narcotic so powerful that once addiction claimed you, it was nearly impossible to escape.

Continue reading

A Person Arrested For DUI In Kentucky Must Be Given Opportunity To Contact An Attorney Prior To Submitting To A Breathalyzer Test

When a person is arrested for driving under the influence (DUI) in Kentucky there is a list of instructions and warnings that the suspected drunk driver must be informed about prior to the administration of a breath, blood, or urine test.  The list of information that is required to be given is found in section 189A.105 of the Kentucky Statutes.  One of the lesser known requirements is found in sub section 3, regarding the opportunity to attempt to contact and communicate with an attorney prior to the test.  The pertinent part of the statute reads:

“During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right.”

In the case of Ferguson v. Commonwealth, 362 S.W.3d 341, a driver was arrested for DUI after being stopped for not having any tail lights.   The arresting officer, in this case a State Trooper, transported the driver to the county detention center.  Upon arriving at the detention center, the driver was taken to a room containing a breathalyzer machine.   A deputy jailer confiscated the driver’s wireless (cell) phone.

The Trooper then read the driver her rights under the Kentucky implied consent laws. It was at this point that the driver was first informed of her right under KRS 189A.105(3) to an opportunity to attempt to contact and communicate with an attorney during the ten to fifteen minutes immediately preceding the administration of the breathalyzer test.  After being advised of this right, the driver requested to speak with her attorney prior to submitting to the breathalyzer test.

The driver had an attorney who had instructed her to call any time she had a problem. She requested to contact said attorney. However, the attorney only used a cell phone as opposed to a land-line and also she had her attorney’s cell number stored in her cell phone that had been confiscated. The driver requested access to her cell phone to call her attorney but the deputy jailer prohibited such use because of a jail policy against detainees’ use of cell phones.

The arrested driver was then provided access to a collect-call only telephone on the wall of the jail.  She attempted to use the telephone to call her attorney but failed because she could not collect-call her attorney’s cell phone. Without the advice and guidance of her attorney, the arrested driver submitted to the breathalyzer test and produced a result of 0.092.  Her attorney later tried to suppress the breathalyzer and have the test results kicked out of court because she was not permitted to contact her attorney via her cell phone.  The trial judge refused to suppress the breath test.

Because of the evidence of the the breathalyzer, the driver was put in a position, with the assistance of her attorney, to enter a conditional guilty plea.  The conditional plea permitted her to appeal the court’s decision.  She then appealed the decision the judge made to allow the breath test to be used as evidence against her.

The driver won her appeal and the appellate court stated that in order to exercise the right contained in KRS 189A.105(3),  the arrested driver required access to her attorney’s phone number contained on her cell phone and should have been given the opportunity to retrieve the number and provided a telephone to contact her attorney. Therefore, the arrested driver’s right contained in KRS 189A.105(3) was violated when, based on the totality of the circumstances, she was not provided with the means capable of contacting her attorney.

Do not try to take on the criminal justice system by yourself.  Invoke your rights and always ask to speak to an attorney.  To make your life easier, keep the name and number of your attorney readily available.

In  Northern Kentucky , you may contact Attorney Ken Turner anytime at (859)432-3733,  (859)432-FREE, if i am not in my office, my number gets forwarded to a personal cell phone.