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Kentucky DUI Tips – Baldani TV

Bradley Clark: We're live.

Abe Mashni: All right.

Bradley: All right. Hey everybody out there. This is the inaugural broadcast of the Baldani Law Group TV live streaming system. I'm here with my partner, Abe Mashni. We both work here at the Baldani Law Group. My name, of course, is Bradley Clark. We are here today to tell you a few tips, things we've learned over the years about DUI cases. Some of the things we've seen that have won cases, some of the things we've seen that could really help somebody that's in trouble.

That being said, Abe, we're talking about three different things today. The first thing we wanted to talk about was the 20-minute rule. If you could tell us a little bit about what the 20-minute rule is.

Abe: Sure. There's got to be an observation period that normally happens once the defendant goes to the jail. The reason for the 20-minute rule is that mouth alcohol or any type of burp, eating food, drinking or anything that you're consuming or spitting out can affect the mouth alcohol before you do the intoxilyzer.

Now, the intoxilyzer is a blood alcohol test. It's a machine. You blow into it, and anything that you do with your mouth that can affect the results. 20-minute rule is for the officer to observe you during that time and make sure that you're not doing any of those things.

Bradley: All right. I think I understand what you're saying. You're telling me that, if I'm picked up on suspicion of DUI, the officer is going to take me back to the jail. Right? At the jail, they're going to ask me to blow in the machine, but they don't make me blow in the machine immediately, why not?

Abe: Because you could have drunk a substance, you could have burped, you could have thrown up, you could have done something that is going to affect how the alcohol is going to be tested in your mouth. By doing that, it could affect the result. So, they have determined that for 20 minutes, you cannot consume anything to where, so the results could be valid.

Bradley: Okay. If I'm there and the officer tells me-- doesn't do this time, I'm I supposed to stop him and say, "Hey, I need you to watch me for 20-minutes."? What do you suggest I do in that case when I'm there at the jail and the officer doesn't do this?

Abe: If the officer doesn't do this, your criminal defense attorney can see that issue, spot that issue and file a motion to suppress the result of the breath test. Now, if they don't do it correctly-- and what you see in Fayette County it is, there's a lot of body cam video. So, the officer is going to be recording everything. It should be right on-- they're either wearing it on their glasses or on their shoulder. There's going to be a running clock, and most time, you're going to see exactly how much time has elapsed during this observation time.

Bradley: Okay. What you're telling the people at home is that, if the officer forgets to do this for some reason, that your defense attorney should file a motion because the test is unreliable.

Abe: Correct.

Bradley: Have you ever had this come up?

Abe: Absolutely, yes. Sometimes officers get lazy, and they want to push things through, maybe it's in the night and they just want to get that result in, so, instead of 20 minutes, they might wait 15 minutes. We've seen it where the officer themselves write the wrong time. They've been trained to wait 20 minutes. However, they may have forgot, maybe, I don't know.

Bradley: Yes. I personally had a case, and the reason I ask this is, where the officer had written one time and then realized it wasn't 20 minutes on the video, crossed it out and then changed it. We were able to see that not only did he not do what he was supposed to, he did something he really wasn't supposed to, which was falsify court documents. As you can guess, that case went pretty well for my client.

Abe: What you can also see is, through the body cam, you can actually see if they are actually observing the client. If they're walking to the other room and decline may be he burped, maybe he coughed or maybe he did something to where it could affect the results, it's the burden of the prosecution to prove that they were watching them and observing them during that time.

The officer doesn't necessarily have to have eyes on them, watching them just over their shoulder or just directly staring at them, they do have to be in the same room, and there is a good case law on that.

Bradley: Got you. That's really interesting, and it's good to know that the legislatures out there, they care that this be done kn the right way because these machines are not 100% accurate. That's what this is about, is using them in a way that is reliable so we can have evidence that we don't put innocent people in jail, because if you burp, if you've recently consumed something, that's going to cause an artificially high reading and some one could be found guilty for something that they didn't necessarily do. That's why we have rules like this.

Abe: That's correct.

Bradley: I'd like to move on and talk about another issue that we see come up a lot. That's the implied consent warning. Do you want to explain to everybody want the implied consent is?

Abe: Sure. Prior to submitting to any breath test, or blood test, the officer's going to need to give you your rights. They do that so you understand them and so you're making informed, implied consent decisions. Part of those rights-- They're going to normally read off a piece of paper. You have a right to an independent blood test. If you don't like the results of what the officer says that you blew, or your blood-test results, then you can go to your-- You have to pay for it on your own and they'll take you to the, here in Lexington, either Good Sam or UK, and get a blood test, provided that they do it from a nurse so that the officer isn't doing that.

It's a check on what-- if you don't trust the results of the law enforcement. You also have a right to refuse the test. Now, it's very debatable as far as the language that they say as far as what happens whenever you do refuse the test. I think we both can agree that it's just patently wrong as far as what Lexington Police Department-

Bradley: It's not just both of us. The prosecutors actually agree that the language-- It's not the Lexington Police Department's fault either. It's actually the statute that says it. They changed it when they added the ignition-interlock law, but they didn't really fix it. What we're talking about at home, for those at home, ladies and gentlemen, is this statement that they read you when you're arrested for DUI and they're asking you to do a test, it says that if you refuse the test, you're not allowed to get an ignition-interlock device. That's just not true. I don't know why they did that, why it says that, but that's what it says.

I guess I want to go back a little bit, Abe. Officer reads you this. He asks you, "Do you want to take the test?" What do you say? What would you advise people to do, in that case?

Abe: I think that each situation is different. I don't think that I'm going to just blankletly say, "Refuse everything" or "Take everything," but I would say, at least for a DUI first, by submitting to that test, you are giving them evidence. You are giving the prosecutor a number to point to, if you are above the 0.08.

Bradley: Once again, don't drink and drive.

Abe: Exactly.

Bradley: Please, ladies and gentlemen, please don't drink and drive, but if you do, call me.

Abe: Coming from a strategic standpoint, I would much rather have to go to a trial, or argue a case, where there is no number, and we have to judge solely on the officer's observations, notes, body-cam evidence, statements that the clients think, rather than point to a number that could or could not be correct.

Bradley: Right. In fact, in the state of Kentucky, we have what's called a Per-Se DUI law, which is if that test comes in and it's accurate, then that's just it. That's a wrap. Is 0.12 greater than 0.08? I'm a very good lawyer, if I must say so myself, but I cannot convince people that 12 is less than 8. I'm not that good. I think that's the point. People ask me, "Is it illegal to refuse the test?" It's illegal in a sense in that you're not complying with the implied consent law.

By having a driver's license, you've consented to this test, but there are repercussions. There are consequences. Those consequences are your license is suspended at arraignment. You will be able to get what's called an ignition interlock license while you continue to fight the case, but it's not as severe as a penalty potentially as having a test that they could use against you in a per-se DUI prosecution. That's why I think that it's somewhat difficult too to know. That ability to drive while you're fighting the case can be valuable to people too. I think that the real advice is, if you are in this situation, they give you 10 to 15 minutes to call a lawyer. Call a lawyer.

Abe: I would say though, when they give you that 10 to 15 minutes to call a lawyer, at least here in Lexington, they are recording that conversation. You do not have a right to privacy. There is no attorney-client privilege in there-

Bradley: You mean on the jail phone?

Abe: Yes.

Bradley: Frequently, they'll let people use their cell phones. You should ask to use your cell phone in the event that they give you that 10 to 15 minutes. Most officers will let you. I think if they don't, it could be a violation of the reasonable accommodations they have to make for you.

There's a series of cases, I like to think John Tuckett in particular, for litigating one about blood test. It's, I think, on review at the Supreme Court right now. At the end of the day, you don't have to use a jail phone. I would not use a jail phone because they can record that. They can use that evidence against you. What you talk to your lawyer about, should be private. Lawyers can opt out of having their number being recorded on the jail system.

At the end of the day, if most people are getting DUIs in the middle of the night, you're trying to call maybe the lawyer's cellphone, that number may not be on there. They may not have whitelisted the number or blacklisted the number more accurately from recording. Ultimately, if you can get your cellphone, you can get on there, you can find Brad Clark's number, Abe Mashni's number, Baldani Law Group's number. You call that number. I've been woken up a number of times. I'll tell you this, I've had people, they call me in the middle of the night. I get to talk to them. They say, "I've had these many drinks." I say, "Well, you should probably take the test if that's true." They've taken the test, and they've actually passed. They've gone home that night. Not everybody that gets pulled over for a DUI gets arrested. The police have mostly been fair, in my view, but not always. That's what defense lawyers are for.

Abe, anything else in blood consent you want to cover?

Abe: No, that's about it.

Bradley: Cool. I think there's one more topic we wanted to hit at today, and that was the Well's case. Do you want to tell us a little bit about what the Well's case is, Abe?

Abe: There's a case, it is Welsby Cornwell. It's based on the premise of the reading of the statute. The DUI law itself says that a person shall not operate or be in physical control of a motor vehicle anywhere in the state while under the influence. Those keywords 'operate or be in physical control'. Now, what you see a lot of times, or sometimes, is a person is passed out at the wheel, maybe a good samaritan will call in and say, "We're worried about this person, their car is running. How did they get there?"

Officers will arrive on the scene, maybe it's a car on the side of the road. They have to determine whether or not that person is operating that vehicle or in physical control of that vehicle. There's no bright line rule, unfortunately, legislator hasn't just said in this situation, somebody can be charged. In this situation, somebody cannot be charged.

Bradley: There couldn't really be, right?

Abe: Right.

Bradley: There's no way that they could possibly think of every possible situation. There's that case out of Louisville that I cite to a lot, I think it's Armstrong. It's a Court of Appeal's case. In that case, there was a guy that was passed out in the garage at 4th Street Live!. He'd been out drinking, and his keys were in the ignition, the car was actually on. The car was in, I believe it was in park, but his foot was on neutral. It might have been a stick, I can't recall. His foot was on the gas and he was revving but the car was not moving.

The court of appeals in that case came down and said, "Hey, that's not operation. This guy is passed out. The car is not moving even though the engine is revving, even though he's in his sleep drunk. He's not actually operating that vehicle. I've seen a lot of people get bad advice about operation, particular the issue of-- Just because I've heard people say, "if you're in the driver seat, it's a DUI. If you've got your keys in your hand, it's a DUI."

I've heard them say, "If the keys are in the ignition, it's--If it's accessory-- if you're just listening to the stereo, it's a DUI." I've had a lot of people tell me, "Well, my last DUI was just sitting in the car listening to the radio." I'm like, "Well, if that's true, your lawyer didn't do a great job." Have you ever heard anything like that, Abe?

Abe: Yes, there's a lot of myths about it. The biggest thing that I hear is, "Well, I threw the keys on the floorboard, so I can't charged with a DUI." Well, unfortunately, that is not necessarily the case. The court has described four factors. It's a totality of a circumstance analysis that the court is going to have to do. Those four factors are, whether or not the person in the vehicle was asleep or awake. Now, obviously, somebody that is awake, that would tend to lean toward they were operating the vehicle or in physical control.

Now, a person that is asleep, that would sway the court a little bit to say that they were not in physical control of that vehicle. The second factor is whether or not the vehicle was running, and I think that's pretty self explanatory. Then, the third are a little bit more wishy-washy. They go definitely to the facts as far as where the vehicle was and how the court thinks, and what the evidence is and any type of statements that were made on how it got there.

Number three, the location of the vehicle, where it was found and the circumstances bearing on how the vehicle arrived in that location. What you see there is there's a huge difference on if the vehicle was in a parking lot, per se, or on a side of a busy intersection, or in the middle of an intersection. Those are, I think, three completely different situations, and the court will look at them differently and think about them. What are your thoughts?

Bradley: Yes. I've had this situation a number of times, and we've won. This is one that wins a lot of cases, and people are like, "Well, how does this really make sense, that we should reward somebody for passing out?" I don't really think about it like that.

What this was really designed to do is, we want to make sure somebody that she was operating the car, so the example of somebody who's gone out to get in their car at night, or has gone out to get their CDs, CD's 2018. They got out of their car to get something, right? Whatever it may be. Maybe they left their phone there, and they went out and they sat in the driver's seat and they made a call. We don't want to charge that person with a DUI.

Also, similarly, maybe somebody starts driving and they make a decision to pull over, and they no longer are driving, right? Do we want to punish that person for making the right decision and realizing, "Hey, maybe I have had too much", because it's a tough decision to know. You and I did a test on blood alcohol concentrations a while back on craft beers, and we didn't realize just how quick you could get over the limit. Somebody's out there and they take off, they think they're okay, they decide, "You know what, I should pull over, and I should take a nap, try to sleep it off", maybe we should reward that person, or at least treat them differently than we treat the person that would have continued driving on, and I think that's what this is about.

I've definitely seen this in a number of contacts. I had a guy who went and had a couple of drinks. He got in his car, he went over to massage parlor, he got a massage, not that kind of massage, I don't think. Then he went out to his car, and he fell asleep. They came up, they charged him with DUI. Now, was it DUI when he drove there before we got the massage? We don't really know. He could have had drinks in the massage parlor, but he ultimately got so relaxed. He made the decision, I need to sleep this off, and he did, and we were able to get that thrown out. They've been a number of other ones. I had a guy that did the same thing in a parking lot. Not even just that, people that are at parties that go after their car. I've seen that so many times.

Abe: What about people that live in their car?

Bradley: Yes, there are people that live in their car. I would, if it's a mobile home. What if you're a trucker. It's a CDL case, right? If you're a CDL driver and you get a DUI, it could be the end of your career. I've seen that issue too. Ultimately, this is an important one. A lot of people don't realize that there's a lot of false information out there about that. There's no bright line rule about, when you're driving the car, or when is it a DUI, right? It's ultimately you got to look at these four factors, and see how they apply to the case. That's how the courts have ruled.

Abe, do you have anything else you'd like to tell people today?

Abe: Don't drink and drive, first and foremost. If you do, the consequences can be extremely great. A lot of people will come and say, well, I don't need an attorney, or I'll just plead guilty, because I know that I was drinking and driving, and I made a mistake. What I would tell to all of those people are that, by hiring an attorney, you're just making sure that your rights are protected. There are countless things, and we just talked about three of them, that officers can do in order to sway the results or to convict you when they didn't do the right thing. By hiring an attorney, you are allowing yourself to make sure that the prosecution can prove their case, the police did what they were supposed to do, and they did their job.

Bradley: Not only that. You even violated the law, like those examples we were just giving with Wells. A lot of those people thought they were guilty, and they weren't, under the law. Ultimately, just because you think you're guilty, doesn't necessarily mean you are, and just because you did it, doesn't mean that you are guilty.

I would say the same thing. I would encourage people to step out and get a lawyer, no matter what. This is an important life changing decision. I can't tell you how many young people have approached me, and they'll say, "Five, six years ago, I got a DUI. I can't get it off my record now. It's hard for me getting jobs. I wish I'd fought it back then or I'd fought harder." If your lawyer's not fighting hard enough, if you're not getting the answers that you want-- Not every case is winnable, I want to be clear here, but many are. It's important that you at least try. Have somebody that knows what they're doing. Look at the information and do what a professional can with it.

That being said, I think I'm ready to sign off from the Baldani Law TV Network. Please remember to like, review, leave comments and subscribe to our channel. We're going to be posting a whole lot of stuff coming forward. I'm really excited about this new setup we've got here at the studio. If you've got any questions, maybe if you want to be a guest on the show, leave a comment.

On behalf of all of us here, at the Baldani Law Group, I'd like to thank you guys for watching, and we'll be back soon. Peace.