Kentucky DUI Defense Lawyer

Help Wanted With "The Top 10 DUI Defenses I Learned From My Horse"

2011-12-13T17:45:52-05:00

I am currently preparing a Continuing Legal Education (CLE) presentation for the Kentucky Bar Association where I teach other attorney's how to prepare a legal defense to the charge of Driving Under the Influence (DUI). This will be the fourth year I have been invited to either write or present the CLE materials. As part of the presentation this year, I decided to add a little humor centered around DUI defenses and Kentucky's love for Horses.

To that end, I am reaching out to the community for help. I plan to preface each DUI topic with a "Top DUI Defense I Learned from My Horse". The general topics include: Standard Field Sobriety Tests; One Leg Stand; Walk and Turn; HGN or Horizontal Gaze Nystagmus Test; Portable Breath Test or PBT; Alphabet Test; Touching The Nose Dexterity Test; Counting Test; Suppression of the Traffic Stop; Implied Consent; Suppression of the Breath Test or Intoxylizer; Suppression of the Blood Test; the Officers Violation of the Statutory Observation Period; When a DUI can be Expunged, and more. I am seeking your suggestions and comments which I can use in the presentation.

For example, a few of the suggested "Top DUI Defenses I Learned From My Horse" currently under consideration include:

1) If I was meant to stand on one leg, then I would have been born with one leg!

2) But officer, I only had a few beers, they make my coat shine.

3) HGN, lets see, does that mean Have Grain Now?

4) Officer, you stopped me for speeding? What part of RACEHORSE do you not understand?

5) You want me to count to thirty while I stand on one leg? You must be horsing around!

6) You want me to say the alphabet from H to R? How can I do that when I can not even pronounce my own name?

7) Walk and Turn, no problem. I can do that, but do I take 9 steps with each leg or only the front two, and if only using the front legs, what do I do with my rear legs?

8) Field Sobriety Test, hmmm, yes, I see the field and it has grass in it. Out of my way, I want to taste the grass to test if I can maintain sobriety.

9) Look at my hoofs, you expect me to take these tests with heels over two inches?

Note, by posting suggestions in the comment section, you are giving me permission to use the best of the suggestions in my presentation to Kentucky's future DUI defense lawyers. Thank you.

Post by Lexington, Kentucky DUI Attorney Stephen Isaacs, Isaacs Law Office.

Falsifying of Evidence in DUI Cases

2011-12-13T03:10:45-05:00

In reading recent DUI articles for this website, I stumbled across an article from the Augusta Chronicle where a Richmond County Georgia deputy sheriff was forced to resign after admitting to falsifying readings from a portable breath testing device. According to the article, the deputy had 62 pending DUI cases which are now in jeopardy. The article further stated that there may have been people charged with driving under the influence who should not have been charged with the DUI.

Sadly, the falsification of DUI evidence by officers is not new and is definitely not limited to Georgia. I recall successfully defending a DUI case in Rowan County, Kentucky, where the prosecutor and I discovered that the arresting officer had been charging drivers with DUI without supporting evidence. In my client's case, the officer claimed my client was driving under the influence of alcohol. Fortunately, a blood test proved my client's innocence once we received the report indicated he had no alcohol present in his body. The Court dismissed my client's case and the officer was subsequently fired.

Unfortunately, it has been my observation that not all innocent individuals inappropriately charged with a DUI are lucky enough to uncover evidence to prove their innocence. I have observed a disturbing trend in Kentucky where law enforcement agencies which used to have their officers make video recordings of the stop, the Standard Field Sobriety Tests, the arrests, and the suspect's performance on the Intoxilyzer no longer have their officers make these recordings. Without these recordings, it is a bit more difficult to show the court that the officer erred in collecting evidence against the accused.

So what do defense lawyers do when exculpatory evidence is not readily available? We turn to the Confrontation Clause of the Sixth Amendment to the United States Constituion. The Confrontation Clause provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." This usually applies to testimonial evidence, but may also apply to pretrial conferences in order to expedite the case. Of importance, the Fourteenth Amendment makes the right to confrontation applicable to the state criminal prosecutions. It does not apply to civil cases or other proceedings.

Post by Kentucky DUI Attorney Stephen Isaacs, Isaacs Law Office.

A Good Legal Defense Is Based on The Defense Plan, Not Fees

2011-12-12T21:05:53-05:00

Wow, if Hollywood got wind of how some people choose attorneys based on some of the calls DUI attorney's receive, then it might make a good movie. Here's an example...

A representative potential client claiming to have been charged with Driving Under The Influence (DUI), First Offense, called the office desiring to speak to a DUI defense attorney about their case. They stated that they did not have an attorney and were seeking a good DUI defense attorney. We then briefly discussed the facts of their case. The conversation went something like this ( * See Note Below):

Caller: Mr. Isaacs, I was arrested six weeks ago for a DUI. The officer did not allow me to call an attorney. He also did not do the Field Sobriety Tests correctly because he didn't do the 14 passes required for the Horizontal Gaze Nystagmus (HGN) test nor did he give me the One Leg Stand test. He also did not do the breath test correctly and refused my request for a blood test. The officer also kept asking me questions after he arrested me and he did not give me a Miranda warning. He also ....

Me: Slow down. Let me ask the questions. First, what is your name?

Caller: John Doe [fictitious name]

Me: Are you alone?

Caller: Why?

Me: I want to make sure you are not overheard and that your statements can not be used as admissions against you.

Caller: I am alone.

Me: Have you had a DUI before?

Caller: No.

Me: Have you researched DUI defenses?

Caller: No.

Me: Were you charged with a DUI with an aggravator?

Caller: Yes.

Me: Why were you stopped?

Caller: The officer claimed I was weaving.

Me: When is your next court date?

Caller: In two days.

Me: What's going to happen in two days?

Caller: The trial.

Me: Let me get this straight, your trial is in two days?

Caller: Yes.

Me: Why did you wait so long to call me?

Caller: Because you charge money to defend people.

Me: You seem to know a lot about the DUI defenses. What did your lawyer say about the officer's ability to follow proper procedures for the DUI arrest?

Caller: He stated that he thinks the officer messed up the stop and the Field Sobriety Tests and shouldn't have arrested me. I also want you to sue the officer because he also was rough with me and hurt me.

Me: Didn't you just tell me that you didn't have a lawyer?

Caller: Yeah, but he won't talk with me. I'm afraid the jury will sentence my brother to serve time in jail. After finding all of those people who gave you wonderful ratings on Google and reading your website, I believe my lawyer does not know how to handle a DUI case as good as you can. Can you call him and talk to him for me?

Me: How's your brother involved?

Caller: He was the driver.

Me: What were you charged with?

Caller: Nothing - I wasn't in the car. But the officer hit my brother.

Me: I'm confused, didn't you just state that you were charged with a DUI?

Caller: Will you help me? What should I do? Can you call my brother's attorney?

Me: Is it a public defender or a private defense attorney?

Caller: A public defender.

Me: Can you afford to pay a private attorney?

Caller: Yes.

Me: Let's start from the beginning to discuss what you know about your brother's case, and this time I need for you to tell me the truth ...

* * *

While this conversation may appear to be directly out of a bad Hollywood movie plot, similar conversations actually happen more frequently than they should. Typically, it is a friend or relative of the arrested person who might make the call. In many of these cases, money is a significant factor in the hiring of an attorney. I came to realize years ago that people do not understand that to properly defend an accused person, they have to truthfully share the facts with their attorney when asked. Yet some people do not for various reasons, including the reason that they do not want to pay the Kentucky criminal defense attorney for the attorney's time to review the facts of their case. Sometimes, only after the client (or potential client) realizes that their liberty and livelihood are at stake do they begin trying to correct any inaccuracies in their case facts with their attorney or try to find another attorney.

I have discussed the economics of hiring an attorney in other articles on my DUI website. Potential clients call demanding a price quote for legal services over the telephone, yet as I explain to them, I can not provide a quote that is fair and reasonable for services rendered unless I first know the facts of their case. I further usually state that if I quoted a fee for my services to defend them against DUI charges, then I would only be quoting a fee for the time it would take to plead them guilty since I know how much time that actually takes - assuming that is what they desire. I also state that I charge for my time based on a defense plan based on the case facts and attorney-client discussions based on what needs to be done in the case. If they truly desire my legal services, then I schedule time with them for a consultation to discuss their case. On occasion, the potential client who did not initially retain my services calls back to inquire about retaining my services after they hired another attorney who quoted them a fee up front without knowing all the facts. The typical reasons I hear for why they are searching for another attorney is that their attorney increased the fee they charged to take the case to trial or does not spend time with them to discuss the facts of their case or never arrived at a DUI defense plan or that they don't have enough experience defending DUI cases or they are simply unhappy with the representation.

For many of these reasons, it is very important when hiring a DUI attorney that you meet with the attorney to discuss the case first before entering into a representation agreement. Be prepared to pay for the attorney's time for the consultation.

And remember, when searching for a DUI lawyer, select a lawyer based on the attorney-client relationship along with a good legal defense plan, and not strictly on the lawyer's fee.

Post by Kentucky DUI Attorney Stephen Isaacs, Isaacs Law Office.

* Note: The conversation listed in this article is not an actual conversation, but is a representative compilation of past calls received from potential clients.

How To Avoid a Holiday DUI

2011-12-12T08:27:53-05:00

Holiday parties are a great time to get together with friends and coworkers. It is also a great time to celebrate, drink alcohol, let loose, and have fun. Everybody knows this, including the police. This time of year the police are out in force trying to find impaired drivers.

So what do you do if you have been drinking alcohol? Well for starters, don't drive. Appoint a sober friend to drive you home. Take a cab. Or better yet, stay overnight at the location of the party.

Post by Kentucky DUI Lawyer Stephen Isaacs, Isaacs Law Office.

2011-03-21T02:51:02-04:00

Stephen J. Isaacs

Implied Consent

2011-02-27T00:01:00-05:00

Few people charged with DUI realize that they have statutory rights under Kentucky's implied consent laws, KRS 189A.103 and KRS 189A.105, which can protect them from inappropriate police procedure when the police are attempting to obtain evidence of their impairment.

The arresting police officer must comply with this statute or find himself violating the accused person's statutory rights. According to KRS 189A.105:

At the time a breath, blood, or urine test is requested, the person shall be informed:

1. That, if the person refuses to submit to such tests, the fact of this refusal may be used against him in court as evidence of violating KRS 189A.010 and will result in revocation of his driver's license, and if the person refuses to submit to the tests and is subsequently convicted of violating KRS 189A.010(1) then he will be subject to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if he submits to the tests, and that if the person refuses to submit to the tests he will be unable to obtain a hardship license; and

2. That, if a test is taken, the results of the test may be used against him in court as evidence of violating KRS 189A.010(1), and that if the results of the test are 0.15 or above and the person is subsequently convicted of violating KRS 189A.010(1), then he will be subject to a sentence that is twice as long as the mandatory minimum jail sentence imposed if the results are less than 0.15; and

3. That if the person first submits to the requested alcohol and substance tests, the person has the right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested.

KRS 189A.103 states in part that the breath tests, "shall have been performed . . . only after a peace officer has had the person under personal observation at the location of the test for a minimum of twenty (20) minutes."

Additionally, the police officer must also provide the accused person with the opportunity to contact an attorney. KRS 189A.105 further states:

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.

After the accused person has complied with the police officers requests, then KRS 189A.105 further states:

Immediately following the administration of the final test requested by the officer, the person shall again be informed of his right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested. He shall then be asked "Do you want such a test?" The officer shall make reasonable efforts to provide transportation to the tests.

If the officer failes to follow the procedures set forth under Kentucky's Implied Consent laws, then any results the officer thereafter obtains may be suppressed.

Person's who believe their Kentucky Implied Consent rights have been violated should contact a Kentucky DUI attorney.

Post by Kentucky DUI Lawyer Stephen Isaacs, Isaacs Law Office.

Former MADD President Arrested for DUI

2011-02-26T16:23:25-05:00

Gainesville Florida police arrested the former MADD president of the Gainesville, Florida chapter of Mothers Against Drunk Driving for DUI, according to KTLA News. Apparently, Debra Oberlin, 48, blew a 0.234 and a 0.239 on the breathalyzer tests. When asked, Oberlin reported that she had four beers.

Just as in Kentucky, Florida has a 0.08 legal limit for alcohol.

Post by Fayette County Kentucky DUI Lawyer Stephen J. Isaacs of Isaacs Law Office.