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Category: DUI

Portable Breath Test – PBT in DUI

Posted on February 23, 2017 in DUI

PBT is the abbreviation for Portable Breath Test.  This is the roadside breathalyzer that officers often use when evaluating a person for possible DUI.  It is a handheld device which can generally be purchased on the internet for $80-$200.  Many patrol officers or DUI specialists keep a PBT to check the breath alcohol of motorists.

Q: IS THE PBT ADMISSIBLE?

A: Guarded, NO.  The PBT is admissible only to show the presence of alcohol, however the actual results of the PBT are not admissible.  This is because these handheld devices are not certified, maintained, nor are records kept in compliance with DOT and do not have the same trustworthiness as the more thorough and much more expensive Intoxilyzer machines which are at the jail and/or the police station.  Additionally, the statute requires a 20 minute observation before giving someone a breath test which may be admissible.  The purpose of the observation is to assure that there is no mouth alcohol and that the user does not ingest or put anything into his/her mouth.  The roadside test does not include the 20 minute period, nor does the officer generally read the Implied Consent Form before administration.  Either of these would also render the test results inadmissible in a criminal trial.

Q: WHAT IF THE PERSON ADMITS TO DRINKING

A: If the driver has admitted to drinking, then the PBT is generally not admissible for any purpose.  If the sole purpose is to show the presence of alcohol, once the driver has admitted drinking then there is no other purpose to admit the PBT into evidence.

Q: SO WHAT IS THE USE?

A: Even though the devices are not in compliance, they are actually quite good at determining the level of alcohol in someone’s blood (breath).  The newer models can detect if there is too much mouth alcohol, which can affect the reading.  While not as precise as a blood test or breath test using an Intoxilyzer, the results from the PBT are generally within a close range.  Many officers only use this as a last Field Sobriety Test to either confirm that the person is over the limit if they have failed or are questionable after the field test or to assure that they are under if they have passed other field tests.

Q: WHAT SHOULD I DO?

A: If you are reading this, it is probably too late to determine if you should take the PBT or not and you should contact an attorney to defend you on the DUI/OVI charges.  That said, often the decision should be based on how well you did on the field tests and/or how much alcohol you have consumed.  If you are close to under the legal limit of .08, a reading under would convince the officer to allow you to leave without a DUI arrest.  If you are over, a test may give you greater input into whether you should consent or decline a formal breath test when you return to the station or jail.

If you have further questions about the PBT, you can email mike@bouldinlawfirm.com. If you need consultation and/or representation, contact Mike or schedule an appointment by calling Bouldin Law Firm at 859-581-6453 (581-MIKE).

What is DUI Aggravator?

Posted on January 24, 2017 in DUI General Criminal Law Issues - Northern KY

Kentucky DUI law, as stated in KRS 189A.010, outlines certain criteria (referred to as aggravators) that increase the mandatory penalties for a DUI conviction.

Those criteria are identified as aggravators.  The follow are those criteria or “aggravating circumstances” that increase the jail sentence if convicted:

  1. Refusal of request for testing breath, blood or urine;
  2. Having a blood alcohol level over .15;
  3. Having an accident with death or serious physical injury;
  4. Going the wrong way on a limited access highway;
  5. Driving over 30 miles per hour above the speed limit; or
  6. Having a child under the age of 12 in the vehicle.

There are six (6) criteria that mandate the increased penalties.  (see KRS 189A.010(11))  Those penalties only affect the jail sentence associated with the DUI.  For a first offense, the minimum jail sentence is 0 days but with an aggravator, there is a minimum 4 day sentence. Second offense within 10 years carries a minimum jail sentence of 7 days and 14 if aggravated.  Third offense within 10 years has minimum 30 days incarceration and that doubles to 60 days if an aggravating circumstance exists. Fourth offense within 10 years is a felony, but 120 days in jail is the minimum which doubles if aggravated.

If you have been charged with a DUI, you should hire an experienced criminal defense attorney.  For consultation in Boone, Campbell or Kenton county, call the Bouldin Law Firm at 859-581-6456.  Contact Mike Bouldin at 581-MIKE or email at mwbouldin2@gmail.com.

Lawyer for DUI Trial

Posted on January 24, 2017 in DUI

If you are looking for a lawyer with DUI trial experience in Northern Kentucky, there are a few good men to report.

Having been a trial attorney for over 20 years in Northern Kentucky, I often have the opportunity to see others at work.  Kentukcy law prohibits the term “best attorney” so here is my list of top attorneys in the area. Northern Kentucky counties of Boone, Campbell and Kenton are fortunate to have a number of experienced and very good attorneys who practice DUI defense.

For my dollar the top DUI attorneys include those retired: W. Robert Lotz, Dick Slukich, and Burr Travis; the elder statesmen Wil Zevely, Harry Hellings, Ed Drennen and Jon Alig; my contemporaries include Tim Schneider, Chris Jackson and Paul Dickman; and the younger group includes Ryan Beck. There are also a few Cincinnati attorneys that occasionally cross the river from Cincinnati and do a decent job, including: Steve Adams, Joe Suhre and Kelly Farrish (*Kelly’s not licensed in Kentucky).

A good attorney can advise when you should plead, when you should file a motion, when you should proceed to trial and whether that trial should be with a judge or a jury.

If you have questions and are looking for a DUI defense attorney with significant trial experience, call the Bouldin Law Firm and discuss your case with Michael Bouldin.  For consultation, email at mike@bouldinlawfirm.com or call 859-581-6453.

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DUI Last Night? Court tomorrow?

Posted on January 1, 2017 in DUI

If you got arrested for DUI last night or early this morning, you probably have court tomorrow (or Tuesday) If you want to talk to an attorney before then, email me at mwbouldin2@gmail.com. Bouldin Law Firm of Mike Bouldin and Kris Nevels can help!

Serving Northern Kentucky primarily in Boone, Campbell and Kenton counties.

Don’t start 2017 in court without an attorney. Email now. mwbouldin2@gmail.com.

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Give Legal Services – Best Gift Ever!

Posted on November 24, 2016 in DUI General Criminal Law Issues - Northern KY

What’s the best gift you could give a loved one or adult child?  How about defense off their pending DUI, assault or other criminal case?

Many people have trouble paying legal fees associated with DUI our expungement. This is especially true with contested cases or people on a fixed budget. You can help!

Hire an attorney to guide them and file for the process. If they have an attorney, contribute to their fees. A phone call from a relative with even a small payment reminds the attorney of three case and that there see others who care about the outcome.

In northern Kentucky call or email Michael Bouldin. Call 581-MIKE and schedule an appointment for yourself or a loved one.  For immediate response, email Mike at Mwbouldin2@gmail.com.

 

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DUI Day

Posted on November 24, 2016 in DUI General Criminal Law Issues - Northern KY

Thanksgiving weekend is the biggest DUI day of the year nationwide and Northern Kentucky is no exception.

College kids come home, meet their high school friends and share their newfound love of cheap beer. Family gets together and chugs wine to limit annoyance with one another. Elderly teetotalers have their annual cocktails and revel with friends.

It may be the time to begin using Uber or Lyft. If you have made a mistake and been cited for DUI, hire an experienced DUI and criminal defense attorney.

Don’t go it alone! Don’t make the mistake by making decisions which will affect your life, liberty and livelihood  without professional advice.

Call Mike Bouldin. Get advice from a professional with 22 years of experience.  Email at Mwbouldin2@gmail.com. Call 859-581-6453. (581-MIKE)  Email today for immediate reply!!

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Who Takes DUI Case to Jury?

Posted on October 5, 2016 in DUI

I do.  As an attorney practicing DUI and criminal defense in Northern Kentucky for over 21 years, I have experience to handle your DUI defense.  This may include taking the case to a trial, whether a trial to the Judge or a trial to a jury.  Often times people are fearful of juries.  While a jury does have the ability to make recommendations tot he Judge regarding sentence, my finding is that juries tend to sentence about the same as most courts.

A DUI conviction stays on your record for ten (that’s right, 10) years.  If you have a defense, you should consider exercising all of your rights before you plead guilty.

If a case is a close call – say you fail 4 of 6 field tests but there is no bad driving. The jury may acquit or may convict.  A lot depends on how well the officer testifies and how well the defense attorney cross examines that testimony.  Whether there is a video is also a factor.  If there is no video, an attorney  may point out why the officer fails to videotape the encounter.  If there is, that video will provide the best evidence regardless of the testimony of the officer.

Any attorney who regularly tries cases has wins and losses.  It is an unfair question to ask, and often very unrealistic, to believe that there are attorneys who do not lose.  That is TV.  Real attorneys take cases to trial, some of which are difficult if not impossible to win.  Even hopeless cases have a chance of acquittal.  Many attorneys claim a “win” as anything as good or better than the offer by the prosecution.  That would allow for a DUI conviction where the person is charged with DUI, so long as the sentence is not worse with a trial than a plea.

For example, I was recently involved with a DUI jury trial wherein my client blew over .10, which is obviously over the .08 legal limit.  According to the testimony of the officer, the client also failed all 6 of the 6 field sobriety tests.  It was still a triable case as the video did now show that the field tests were as bad as the officer testified.  While unfortunately the jury did convict, they suggested the minimum sentence of $200 fine and no (0) jail time.  My client had his day in court and, moreover, was none the worse for taking the case to a jury trial.

If you want to discuss a DUI charge and possibility of taking the case to a bench or jury trial, contact an attorney who regularly handles these types of cases.  In Northern Kentucky, call Michael Bouldin at 859-581-6453 or email at mike@bouldinlawfirm.com.  Call 581-MIKE today.

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DUI 3rd in Kentucky

Posted on July 20, 2016 in DUI

If you are charged with and facing a 3rd offense DUI in Kentucky, you need an experienced criminal defense attorney on your side.  The charge of third offense can be for any two prior DUI or OVI convictions within the past 10 years. This can be within or outside of the state of Kentucky.  By statute (yet to be determined if constitutional by courts), it may also include plea agreements which stated at the time that it could be held against you for five additional years.

Remember, even if your second (2nd) offense was pled down to a first offense, the next one is still a 3rd offense.  Simple math, 1 + 1 + 1 = 3.  Same holds true for a charge of DUI 4th, which is a felony in Kentucky.

With the changes in the law extending the lookback period from 5 to now 10 years, there is more a need than ever to have an experienced criminal defense lawyer in your corner.  Most “DUI Lawyers” also practice other areas of criminal defense.  A DUI charge IS a criminal charge and a criminal defense attorney can protect your rights.  You are facing loss of license, loss of money via fines and court costs, probation and incarceration. These are all criminal consequences if found guilty.

A third offense carries mandatory incarceration of 30 days (maximum 1 year) which is doubled if there exists any aggravating circumstances.  Those aggravating circumstances include: (1) driving wrong way on highway; (2) driving over 30 mph over speed limit; (3) having child under 12 in the vehicle; (4) accident with serious injury; (5) refusal of blood/breath alcohol test; OR (6) alcohol concentration over 0.15.  Other penalties for 3rd offense DUI in Kentucky include: loss of license 2-3 years, $500-1000

If you  have been charged with DUI in Kentucky, you should hire an attorney who regularly practices in the area.  For consultation and representation contact Bouldin Law Firm and speak to Michael Bouldin.  Call at 859-581-6453 or email at mike@bouldinlawfirm.com.  Call 581-MIKE today.

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Independence Day DUI?

Posted on July 4, 2016 in DUI General Criminal Law Issues - Northern KY

If you were charged with DUI over the holiday July 4th weekend in Cincinnati or Northern Kentucky, you are not alone.  DON’T plead guilty.  If you plead NOT-GUILTY, the court will set your case for a pretrial conference within the next month.  HIRE AN ATTORNEY who regularly practices criminal law in your county.

There are many ways to defend a DUI charge.  First, the attorney will get your side of the story, which often differs substantially from that of the arresting officer.  A request for production of evidence, also know as discovery, is essential to begin the defense.  Often, a video from the cruiser or from the officer’s vest camera may be available.  A video is the best evidence, obviously better than the recollection of the defendant or the officer.  It is also a useful tool to use in cross examination of the officer.

Suppression of evidence may also be necessary to win a case.  If the stop can be suppressed, the entirety of the field sobriety tests and the breathalyzer are also suppressed.  If the stop was valid (officer had probably cause), it does not necessarily give right to request field sobriety tests.  If field sobriety tests are passed, the officer should not demand a breathalyzer or blood test to check for blood alcohol levels.

Even if everything was valid and the defendant was driving while impaired, an attorney can often negotiate a better resolution than a simply plea to the charges.  Consult with an attorney prior to entering any plea and, if possible, before appearing in court.

 For representation in Kentucky, especially in Boone, Campbell, Kenton or Hamilton counties, call Michael Bouldin at 859-581-6453.  For immediate response, email to mwbouldin2@gmail.com.

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DUI with Marijuana in KY

Posted on June 8, 2016 in DUI General Criminal Law Issues - Northern KY

Kentucky does not have a per se limit for marijuana.  Since marijuana is illegal in Kentucky, some prosecutors (and a few judges) believe that you are impaired with ANY marijuana in your system.  Other prosecutors (and most judges/juries) believe that the amount is irrelevant without an expert to help translate an amount to impairment.  In either case, the prosecution in Kentucky must prove that the driver is “impaired in their ability to operate the motor vehicle” as a result of the drugs and/or alcohol combination.

Some states such as Ohio have a per se limit with marijuana in your blood system which is similar to that of alcohol.  For example, if you have over 2 nanograms/milliliter of marijuana in your blood stream, then you can be convicted of operating while impaired (OVI=DUI in Ohio).

The Ohio threshold for drugged driving is illustrated in the following table. Ohio’s DUI Per Se Levels pursuant to ORC§ 4511.19(A)(1)(vii) and § 4511.19(A)(1)(viii)(I)-(II).

Prohibited Substance Urine Blood
Marijuana 10 ng/ml 2 ng/ml
Marijuana metabolite 35 ng/ml 50 ng/ml
Marijuana metabolite in combination with alcohol or other drugs 15 ng/ml 5 ng/ml

Affirmative Defense

It is a valid defense if a person obtained the controlled substance pursuant to a prescription issued by a licensed health professional authorized to prescribe drugs, and the person injected, ingested, or inhaled the controlled substance in accordance with the health professional’s directions. Id. § 4511.19(K)(1)-(2).

NOTE: A doctor’s recommendation to use cannabis is NOT a prescription.

My experience shows that any smoking within the last 24 hours will likely put the person over the Ohio limit, regardless of actual impairment.  As such, best legal advise would be to refuse a request for blood or urine test if you have ingested marijuana within 24 hours.  In Kentucky, the decision is more difficult.  If you know you have marijuana in your system, a breath test will not show the substance.  A blood test, however, will show marijuana in your system.

The problem is what works best.  If you have also been drinking and smoking, best legal advice is generally to refuse a blood test.  If you HAVE NOT ADMITTED TO RECENT SMOKING, generally it is advisable to submit to the test.  In either case, if you test positive or if you refuse, you should expect that the prosecutor will not amend the charges.  You should plan to take your case to trial, whether before a judge or jury.  

As such, you should hire an experienced DUI/criminal defense attorney who has trial experience with both judges and juries.  There are certain judges you should avoid and others who may be preferable to a jury.  For representation in Kenton, Campbell, Boone or Hamilton counties, call Michael Bouldin at 859-581-6453 or email at mwbouldin2@gmail.com.

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