Attorney Bob Blau has been representing individuals charged with criminal offenses in Kentucky for over 35 years including driving under the influence (DUI) and other criminal traffic violations.
Our Constitution presumes that an individual is innocent until proven guilty. Everyone who is charged with a criminal offense is entitled to be represented by an attorney. Often, the person is not actually guilty of all of the charges that are filed. One reason is that there are many different degrees to various types of crimes.
For example, Kentucky has four assault offenses, first through fourth degrees. Wanton or intentional endangerment constitutes first or second degree assault. Each of these charges can require different degrees of conduct. For example, in a fourth degree assault case, all that is required is a “physical injury.” For a second or third degree assault, the requirement is that there be a “serious physical injury.” The serious physical injury is specifically defined by the law. Physical injury also has its own definition. These definitions and their interpretation are critically important when your defense is being argued to a jury, Judge or the prosecutor.
There are also different degrees of crimes for entering someone’s premises. The crime can be trespass, burglary, or armed robbery, which are all very different offenses, and require different proof.
Each of the different offenses has different elements that the Commonwealth (Prosecutor) has to prove in order to prove their case. It is the job and duty of the defense attorney to determine what elements of the crime he believes can actually be proven against you, if any, and then to establish – through the facts of the case – that the Commonwealth cannot prove all of the elements.
Application of this analysis of the evidence and use of the facts as they apply to the actual Kentucky Revised Statutes frequently results in finding of not guilty or plea bargain between the
Commonwealth of Kentucky and the defendant. It is the lawyer’s job to meet with you, discuss the charges, interview witnesses and weigh all of the facts and fully evaluate the circumstances of the case and then determine whether a trial, or plea agreement is the best approach.
However, the ultimate decision to go to trial or enter into a plea agreement is always up to the person charged. I never tell a client to plea guilty or not to plea guilty. The reason is simple if I say not plea guilty, try the case and the jury finds you guilty, you will say why did you tell me not to take the plea. The ultimate decision is yours because it is not me going to jail.
The defense of someone charged with driving under the influence has become much more difficult then it was in the past and is like defending a felony. A person is guilty of driving under the influence if his or her blood alcohol or breath alcohol content is in excess of 0.08 percent . Unfortunately, it is guilt by computer. The intoxilyzer machine is only that – a computer program and a machine.
The intoxilyzer is a computer that has been programed by a company specifically using only an average male as the protocol of the test. Small women and large men have varying results, because they do not meet the standard protocol. However, in order to establish that the reading of the machine is incorrect, it is necessary to hire an expert witness, which can be expensive. Nevertheless, given the ramifications of the driving under the influence offense, in the cases where the breathalyzer/intoxilyzer results are close to 0.08, it may be worthwhile expense.
It is important to remember that if you are stopped on suspicion of a driving under the influence, there is no obligation for you to take the sobriety test. You do not have to take these tests to get your license and there is no legal argument for you to provide this evidence to the police. The test usually includes the finger-count test, the one-leg-stand test, and the walk-a-straight-line test. But, please understand, if you elect not to take these tests, the police officer may become angry, and it will be more certain that you will go to jail. However, if the officer suspects that you are driving under the influence and smells alcohol or believes that you are on medication or drugs, you probably will go to jail anyway. Thus, there may no reason to provide evidence that is or may be detrimental to you and your case.
It is also important in any criminal case that you exercise your right to be silent. There is no requirement that you answer any questions. You should produce your driver’s license and your insurance card. If the officer asks you if you have been drinking, you have the right to remain silent. If he or she asks you other questions related to consumption of alcohol, remember that you should remain silent. Bee polite, courteous but decline his interrogation. He is not going to let you leave if he smells alcohol.
You have the right to call an attorney prior to submitting to the intoxilyzer or blood test. You should exercise that right if you can. However, refusal to take the intoxilyzer carries a possible six-months driver’s license suspension. There is also an increased penalty if the intoxilyzer result is above 0.15.
An informed guess as to what your breathalyzer result may be is an important factor to weigh in the event that you are stopped for driving under the influence and are deciding whether to take the intoxilyzer test. As a general rule, if you have had several multiple drinks and some shots over the course of an evening, it is likely that you will blow over 0.15, and taking the intoxilyzer would be detrimental. This is particularly true in a first offense.
If, on the other hand, you only had two or three drinks, then taking the intoxilyzer may be to your benefit, depending on your height and weight. However, that is not true if you did shots as you were leaving the bar just before getting into your car. The alcohol level in your system very well may be going up in that instance. On the other hand, if it has been several hours since you had a drink – so that your alcohol level is decreasing – then taking the test may be appropriate. In any event, the decision whether to take the test is difficult and should be based on the advice of an attorney, if possible.
Individuals who have taken the intoxilyzer test that shows a blood level alcohol between 0.08 and 0.10 should request a blood test, because a blood test is more accurate. You have an absolute right to have the second test after you have complied with the officer’s request to take the first test. Frequently, the intoxilyzer breaks down and can provide false readings, which is another reason to request a blood test. It is after all just a computer.
We offer free, no obligation consultations. If you have questions about your rights or believe you may need a Kentucky criminal defense or DUI lawyer, then contact us today – we are standing by to help you! Our office is conveniently located in Cold Spring, Kentucky – just 6 traffic lights south of the Northern Kentucky University school entrance. We represent and serve clients throughout the Commonwealth of Kentucky and the greater Cincinnati area.