Lexington’s Most Wanted

Check out Lexington’s Most Wanted speddinglawoffices_federalcriminaloffenses1

http://Lexington’s Most Wanted, Nov. 8, 2016 http://www.kentucky.com/news/local/crime/most-wanted/article113348888.html

This is an Advertisement: If you find yourself faced with a criminal offense in Federal Court, consider contacting my office.

For more information: http://speddinglawoffice.com/felonies_misdemeanors/

I’ve Been Arrested. What Can I Expect From Here?

federalcriminal-offenses

HERE ARE THE STAGES OF A CRIMINAL CASE AS IT GOES THROUGH THE SYSTEM.

Stages of a Criminal Case

Criminal prosecution develops in a series of stages, beginning with an arrest and ending at a point before, during, or after trial. The majority of criminal cases terminate when a criminal defendant accepts a plea bargain offered by the prosecution. In a plea bargain, the defendant chooses to plead guilty before trial to the charged offenses, or to lesser charges in exchange for a more lenient sentence or the dismissal of related charges.

Arrest

Criminal prosecution typically begins with an arrest by a police officer. A police officer may arrest a person if (1) the officer observes the person committing a crime; (2) the officer has probable cause to believe that a crime has been committed by that person; or (3) the officer makes the arrest under the authority of a valid arrest warrant. After the arrest, the police books the person, who is now considered to be a suspect. When the police complete the booking process, they place the suspect in custody. If the suspect committed a minor offense, the police may issue a citation to the suspect with instructions to appear in court at a later date.

Bail

If a suspect in police custody is granted bail, the suspect may pay the bail amount in exchange for a release. Release on bail is contingent on the suspect’s promise to appear at all scheduled court proceedings. Bail may be granted to a suspect immediately after booking or at a later bail review hearing. Alternatively, a suspect may be released on his “own recognizance.” A suspect released on his own recognizance need not post bail, but must promise in writing to appear at all scheduled court appearances. Own recognizance release is granted after the court considers the seriousness of the offense, and the suspect’s criminal record, threat to the community and ties to family and employment.

Arraignment

The suspect makes his first court appearance at the arraignment. During arraignment, the judge reads the charges filed against the defendant in the complaint and the defendant chooses to plead “guilty,” “not guilty,” or “no contest” to those charges. The judge will also review the defendant’s bail and set dates for future proceedings.

Preliminary Hearing or Grand Jury Proceedings

The government generally brings criminal charges in one of two ways: by a “bill of information” secured by a preliminary hearing or by grand jury indictment. In the federal system, cases must be brought by indictment. States, however, are free to use either process. Both preliminary hearings and grand juries are used to establish the existence of probable cause. If there is no finding of probable cause, a defendant will not be forced to stand trial.

A preliminary hearing, or preliminary examination, is an adversarial proceeding in which counsel questions witnesses and both parties make arguments. The judge then makes the ultimate finding of probable cause. The grand jury, on the other hand, hears only from the prosecutor. The grand jury may call its own witnesses and request that further investigations be performed. The grand jury then decides whether sufficient evidence has been presented to indict the defendant.

Pre-Trial Motions

Pre-trial motions are brought by both the prosecution and the defense in order to resolve final issues and establish what evidence and testimony will be admissible at trial.

Trial

At trial, the judge or the jury will either find the defendant guilty or not guilty. The prosecution bears the burden of proof in a criminal trial. Thus, the prosecutor must prove beyond a reasonable doubt that the defendant committed the crimes charged. The defendant has a constitutional right to a jury trial in most criminal matters. A jury or judge makes the final determination of guilt or innocence after listening to opening and closing statements, examination and cross-examination of witnesses, and jury instructions. If the jury fails to reach a unanimous verdict, the judge may declare a mistrial, and the case will either be dismissed or a new jury will be chosen. If a judge or jury finds the defendant guilty, the court will sentence the defendant.

Sentencing

During the sentencing phase of a criminal case, the court determines the appropriate punishment for the convicted defendant. In determining a suitable sentence, the court will consider a number of factors, including the nature and severity of the crime, the defendant’s criminal history, the defendant’s personal circumstances and the degree of remorse felt by the defendant.

Appeal

An individual convicted of a crime may ask that his or her case be reviewed by a higher court. If that court finds an error in the case or the sentence imposed, the court may reverse the conviction or find that the case should be re-tried.

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If you find yourself faced with a criminal offense in a Central Kentucky Court, consider contacting my office.  For more information: http://speddinglawoffice.com/felonies_misdemeanors/

Felony Expungement: A Fresh Start

Expungement in Kentucky

Tomorrow is a day that many deserving people in the Commonwealth of Kentucky have been waiting for.  The 2016 General Assembly passed legislation that takes effect that allows certain people who have been convicted of Kentucky’s lowest level of felonies to expunge, or remove, the convictions from their record.

The link below will take you to important information about this groundbreaking process.

A lot of bad things have happened to good people. I’m here to help. CALL ME!speddinglawoffices_home2

http://courts.ky.gov/expungement/Pages/default.aspx

 

 

Arbitration Agreements: To Use or Not to Use

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Arbitration Agreements:

I have spoken at length with many auto dealers regarding the use of arbitration agreements as part of the sales or leasing transaction with a customer. The question they all ask is, whether or not they should use them. My answer is, and always will be, YES!!!!

I have personally represented clients that DO use these agreements and I have never lost.

Litigious Customers:

Whether or not you believe it, the public views car dealers are viewed with a certain level of suspicion. That suspicion kicks in at the time that the customer first makes contact with your sales team. Unfortunately, it has become a natural phenomenon.

That being said, one of the considerations that a dealer should always keep in mind is that there are consumers out there who are just looking for a reason to sue a dealership. Often, we don’t recognize this and conduct ourselves in a manner that can further exacerbate the situation with customers and give them ammunition to sue the dealer. You can avoid this!

Use a Stand Alone Form.

First and foremost, while many contracts and Buyer’s orders contain an arbitration clause buried in the “small print” that a customer must sign in order to purchase a vehicle, it is still amazing how many dealerships don’t use these agreements at all. This is all fine and good. However, my advice to my clients is: use a stand alone form.

Many of my dealerships simply purchase a form from somewhere like KADA or NADA. While this is a step in the right direction, these form arbitration agreements are not tailored to each individual state. This results in the document having no force or effect. Leading to the agreement being set aside as not complying with state law. You, as a dealer, do not want that!

Useful Tips:

Here are a few tips I can give in crafting an arbitration agreement:

1.     Use a separate document containing the arbitration clause. If, for some reason you cannot use a stand alone document, then make sure the provision in your other documents are present in bold type and  attract the attention of the Buyer. Explain the agreement to them and make sure that there is a separate signature line for the customer to sign within that agreement. This should be separate from any other signature line found in the contract, buyer’s order, etc.;

2.    Make sure that the arbitration agreement specifies where the arbitration is to take place. For example, if in Kentucky, set forth in the agreement that “any arbitration that takes place must occur in _____________ County , Kentucky, pursuant to the laws of the Commonwealth of Kentucky.” If you do not include this language and the lawyer suing you knows what they are doing, the lawyer will assert that the arbitration agreement is void and the court will most likely agree;

3.    MAKE SURE THAT YOU HAVE THE AGREEMENT SIGNED BY BOTH THE CUSTOMER AND THE DEALERSHIP!!! I cannot emphasize this enough. I cannot tell you how many times I have reviewed documents where F&I has not had the customer sign the agreement. If the agreement isn’t signed, it isn’t worth the paper it is written on:

4.   Most importantly, if you are sued, MAKE SURE that your legal counsel asks the Court to compel arbitration in their response to the suit.  If you don’t ask, no one is going to give it to you.

These are but a few tidbits for the dealer to take into consideration when dealing with arbitration agreements. I cannot emphasize enough the importance of using arbitration agreements in your practice of selling or leasing vehicles. The cost it will save is enormous. Like lawyers, a car dealership’s worst nightmare is to have the case be presented to a jury. This has to be avoided if at all possible.  Also remember that standard exclusions in most dealer’s insurance policy will include language excluding claims of fraud. In 21 years of practice, I have never seen a complaint that didn’t include allegations of fraud.

Most dealerships don’t like spending money on document review. I can assure you that the money you spend up front on this issue will save you money on the back-end.

Your job is to sell cars and service for the customer, not be bogged down in litigation.  A few simple things can help prevent you from being bogged down in the middle of a dangerous situation that could have enormous implications for the dealerships.

If you have any questions, please call me at 859-270-1255. Most dealerships take care of the customer. But there are always customers and lawyers looking to make a quick buck and lawyers love to go after dealerships.

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If you find yourself faced with an arbitration question or issue, consider contacting my office.  For more information: http://speddinglawoffice.com/automotive-law/

Another Cardiologist charged with Fraud

Innocent Until Proven Guilty

The Feds have charged another cardiologist with fraud. Does this mean that the cardiologist is guilty? No. Everyone is innocent until proven guilty.

The common perception is that because someone is charged, either by indictment or complaint, that the person is guilty and that the evidence is conclusive that the person committed a crime. This is incorrect.  The old saying among criminal law practitioners is that the government can “indict a ham sandwich,” if they want. While this is an exaggeration,  it does have some merit.

For those who don’t know, when the prosecution presents evidence to a grand jury,  it is part of a secret proceeding.  During the proceeding, as a general rule, only the government presents information for the jury to consider.  The grand jurors consider this information in deciding whether or not to hand down an indictment.

The panel of grand jurors serve for a substantial period of time. One wonders what kind of “camaraderie” develops between the members of the jury and the prosecutor. Ultimately, the prosecution provides the defense with a transcript of what transpired in the “room.” But, is it everything? Hardly! It is merely a transcript of evidence presented to establish probable cause (the lowest standard of proof in the criminal justice system). As a matter of fact, at trial, the Court instructs the  jurors that they are not to consider the indictment as evidence.

Is this admonition effective? One wonders. In my experience, juries try to follow the law and do a good job of it. Whether or not I agree with the verdict, I have always respected the verdict. The jury is in the best position  to make that determination. Every story has two sides and the jury hears both. The simple fact of the matter is that the jury decides which version makes more sense and who presents the stronger case.  The presumption of innocence, in theory, applies until all evidence has been presented and the jury begins deliberations. Again, in theory, that is where the jury must start.

So the moral of the story is that just because you read about an indictment, you should read what follows with a grain of salt.  See the story below.

http://Eastern Ky. cardiologist charged with fraud

But Officer!!!! What To Do ( and not do) When You Get That Dreaded Traffic Citation

duiandtraffic-offenses

 Traffic Citation Info

Print

Payable Traffic Citations

If the citation is marked payable, the amount will be indicated on the citation sheet given to you by the officer. For speeding violations, see the appropriate “MPH Over” for which you were cited for the correct payment amount on the back of the form. If you did not receive a citation sheet, please contact the Fayette County District Court, 150 N. Limestone, (859) 246-2228 for payment information.

  • All amounts listed on the citation sheet are for prepayment only and must be received before the court date listed.
  • Mailed payments should be check or money order made payable to the Commonwealth of Kentucky. (All payments are transferred to the Commonwealth of Kentucky Revenue Cabinet).
  • Payments made in person must be cash, certified check or money order only.

Traffic School

If you have not been assigned to traffic school in the last year, you are eligible to attend on all moving prepayable offenses.

  • Traffic school notices are mailed to the address on your license. If your address is incorrect, you must have it corrected in order to be notified.
  • If you wish to attend, you may mail your citation and a check for the amount listed on the citation sheet before your court date to the address below.
  • Please enclose a note requesting traffic school. (You will be billed an additional amount by the school at a later date.)
  • If you pay in person, you must bring your citation and pay with cash, certified check or money order.

Not Guilty

If you wish to plead not guilty, appear in court on the date listed on your citation.

Equipment Violations

If you are cited for one of the equipment violations listed below, you may bring in proof of repair before the court date on the citation and the charge will be dismissed.

  • If you are cited for the offense codes 0401 or 0435, you may bring in a valid drivers license before the court date on the citation and the charge will be dismissed. (Drivers license must have been valid prior to violation date).
  • If you are cited for one of the offense codes 0405, 0407, or 0424, you may bring a copy of your new registration before your court date. If registration has been expired less than 30 days, the charge will be dismissed. If not renewed within 30 days, you must pay the fine.
  • If you are cited for offense code 0436 you must go to your local drivers license office and have the appropriate information changed, then bring your license to the address below before your court date and the charge will be dismissed.
  • If you are cited for failure to use safety belt in addition to a prepayable offense listed, and the officer marked your citation payable, and you wish to plead guilty to all charges, you may mail your payment to the address below including the additional fine for failure to use safety belt. If charged with failure to use safety belt only, pay amount listed on citation sheet.
  • If you are cited for offense code 0503, you may bring in your insurance policy, or card (IT MUST HAVE BEGINNING – EFFECTIVE DATE) or a letter from your insurance company verifying that you did have insurance PRIOR to the date on your citation.

You may present proof, or make payments (checks & money orders payable to Commonwealth of Kentucky) at:

FAYETTE DISTRICT COURT
150 N. Limestone
Lexington, KY 40507
Telephone: (859) 246-2228

If you fail to respond to your citation, your operators license may be suspended.

Equipment License/Registration Violations

0205 Inadequate silencer
0206 Improper equipment
0209 Vehicle a nuisance
0220 No tail lights
0226 One headlight
0231 Obstructed windshield
0240 No brake lights
0401 No operators license
0405 Improper registration plates
0407 No registration receipt
0424 No/Expired registration plates
0435 No license in possession
0436 Fail to notify D.O.T. change
0503 Fail to maintain insurance

IF NONE OF THIS APPEALS TO YOU, CALL ME! I CAN HELP!

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Last updated: 11/20/2014 9:17:55 AM

What Do I Do at a DUI Checkpoint?

DUI Checkpoint Rules

For many of you, DUI Checkpoints are nothing to be feared. However, there are those unlucky few who encounter a checkpoint in Kentucky. Most of the time, things go downhill even if you have truly had just a “couple of beers”.  Before you go out this holiday weekend, take a look at this story to see how the law is changing on how the police can conduct checkpoints in Kentucky. Happy 4th !speddinglawoffices_dui1

http://www.lex18.com/story/30863283/new-rules-for-roadblocks

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Who is In Charge of a Defendant’s Trial?

The article below deals with a situation that can always put a lawyer representing a client at trial in a predicament. Who calls the shots? You are hired to do a job and there can be a conflict in how you do that job. Do you hire a contractor and tell them how to frame the house? What would the contractor do?

In this case, the Defendant faced the death penalty. The lawyer was trying to spare him death and felt that admitting to the jury that his client committed the client was a sound strategy to save him from the death penalty. The client wanted to maintain a defense that he was innocent. Obviously, the lawyer knew that defense wouldn’t work.

Trial strategy goes a long way in protecting a lawyer from challenges about the job that he/she does at trial. It is a situation you never want to be in, but is inevitable. The family hiring you puts you in any even greater predicament because ethically, just because a third party hires you, you are representing your client and the wishes of the third party matter not.

Would this lawyer’s strategy have worked if the client had testified at trial and acknowledged that he committed the crime? The prosecution assuredly had plenty to cross-examine him with.

Read the article. It is interesting.

 

https://l.facebook.com/l.php?u=http%3A%2F%2Fwtop.com%2Fsupreme-court%2F2017%2F09%2Fcourt-to-rule-when-lawyer-says-guilty-but-client-objects%2F&h=ATPn83f3GLlamcsWuAx5RoUprh8-yNJ6-onuCry1SFhdWtwGprLx5Bf_hykAGPoL9Wb4z2BCs-WApgPqICR_CSzRAag6ydUQkQGu2gKS1w&s=1&enc=AZMJTq-32GlY4KseH9ONsXikj6bATGrnkPQqw7F-be3F3n5y08rWvjWWAXHFdgWKTGnp5ORKciJB0uywTcrhLmeW

Kentucky Supreme Court Rules on the 10 year “Lookback” period

http://opinions.kycourts.net/sc/2016-SC-000530-TG.pdf

Today, the Kentucky Supreme Court issued its opinion regarding the statutory “Look Back” rule. The practical effect of this opinion is this: prior to the state legislature passing this law, the state of Kentucky punished people more harshly if they were arrested for multiple DUIs within a 5 year period. After the 5 year period, any convictions that were older than 5 years could not be used against you to enhance the penalties for a subsequent offense. Under the new law, the enhancement period is now 10 years so even if it has been over 5 years since your last offense,  any new offense will be enhanced. The defense bar challenged the law primarily using contract law and ex post facto but obviously lost. Read the opinion. 

It Happens Everywhere: Shooting at Fayette Mall

Back in the late ’80s-early ’90s, I worked for Loss Prevention at Lazarus Department Store here in Lexington. Believe it or not, we used to “throw down” fairly regularly with people we would catch shoplifting. I worked there for 4 years and never saw a gun nor did I hear of one at Fayette Mall. While apparently this incident didn’t involve a shoplifter, it remains disturbing. See the article below for more details.

http://www.kentucky.com/news/local/crime/article163143393.html

Distasteful to Some…

Sex offenses are generally a taboo subject. But if you are involved in the legal system, how to deal with them from a procedural standpoint and a monitoring standpoint post-conviction, is a nightmare and most inefficient. See how one court views sex offender registration by reading below.

 

 

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New To The Game? It Can Be Done. I Can Help?

Breaking into the retail auto industry from the outside, as the Automotive News article discusses, can be a very difficult thing to do. Sellers retain brokers. Dealers talk among themselves. And deals are cut without any marketing of the dealership to the outside world. It can be done as this article points out.

If you are in need of an attorney to guide you through the intricacies of buying or selling a dealership, either new or used, call me. I can help.

 

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Criminal & Automotive Law

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