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Overland Park, KS 66213

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Frequently Asked Questions


Q. I’m being charged with criminal threat. This is my first offense of this nature. I’m curious to know if i am sentenced to serve a year in prison in the state of Kansas what percent will i actually serve. To get a rough idea.

A.
That depends – if you are convicted of a Felony offense, you will be entitled to earn at least 15% and possibly 20% “good time credit” against the underlying sentence. Provided you have no serious disciplinary violations while in custody, you are entitled to this reduction. If you are convicted of a Misdemeanor offense, then the sentencing judge retains ‘jurisdiction’ over you and retains full authority to ‘modify’ your custody sentence to probation at any time.


Q. About two weeks ago I got pulled over for speeding, and the officer seen a bottle of alcohol in the back seat, I got arrested, while I was doing the sobriety test I refused the breathalyzer because he said if I did it would be an infraction like if I were to run a stop sign or speed, then once I got to the police station I did one and blew a .052, but I am only 20. I am sending in my request for an administrative hearing to the DMV and it says I must state whether or not I want the officer subpoenaed to go.

A. You absolutely must request presence of the certifying officer AND request that the administrative hearing be ‘in person.’ If you fail to ask that the hearing be held ‘in person’ then all you get is a brief telephone conference with the administrative judge. If you do not request the presence of the certifying officer, then the administrative judge will make a determination in your driver’s license suspension hearing based solely on the documents submitted by the officer to the Department of Revenue. If you do request the presence of the certifying officer at the hearing and that officer fails to appear, the administrative judge will typically dismiss the pending order of suspension.


Q. On Sunday I got pulled over in my driveway by a cop saying it was reported I ran my car into McDonalds and that I had been drinking. My car was off in my driveway. They arrested me for DUI after failing a breath test. My question is there is no damage to my car or the building and no cop saw it. Can I get out of this? I don’t see how they can prove I did beyond a reasonable doubt and He says he saw me driving but I think he is lying and I have hired a lawyer to try and fight this. Do I stand a chance? If he really didn’t see me driving and video shows that then I don’t see how I can get a DUI or get leaving the scene of an accident if they have no proof I hit the building

A. If you have hired a lawyer, then these are questions best directed at your lawyer you should have all relevant reports, statements and, audio/video recordings associated with this charge. Typically, if an officer finds a person seated in the driver’s seat with the key dangling in the ignition – even if the car is turned off and not running – the prosecutor can make a run at proving ‘attempted operation’ of the vehicle. Certainly it is not a prerequisite that an officer personally witness the alleged accident at the McDonalds. Nor is it required that you do damage to the property in order to charge you with DUI. If an employee personally saw you scrape the wall or bump up over the curb while navigating the drive through, they will be able to report / testify to your (allegedly) impaired condition. Suppose they provided a make/model/year for your vehicle or actually even jotted down the license plate number. If the officer finds you seated in the driver’s seat with the keys dangling in the ignition, he or she can legitimately continue the investigation for suspected ‘attempted’ operation of the vehicle. Keep in mind that if your vehicle is already parked, there is no ‘traffic stop’ and the interaction is subject to analysis under the more lax standards of a “Terry” encounter as opposed to formal traffic stop, which will always require articulable ‘reasonable suspicion.’


Q. I was in a diversion for theft charge. Then the I got convicted with domestic battery. Couldn’t contact my diversion officer, because I couldn’t have the number from my mother because I can’t have no contact between my witnesses. I fail to report to my profession offices within 72 hours when I am convicted. I didn’t even know I could try to call anyone let alone a diversion officer

A. In most cases, yes. It is likely – though not a guarantee – that you will be afforded a contract of probation of you violate Diversion and your Diversion contract is revoked. Diversion is essentially a contract that you sign with the prosecuting attorney. You agree to do certain things: complete a drug and alcohol evaluation and any recommended treatment; complete an anger management class; meet with a court services office; etc. and the prosecutor agrees to dismiss the underlying criminal charges at the conclusion of the Diversion term. Part of the Diversion contract includes a ‘stipulation’ to the allegations against you. IN other words, you ‘agree’ that the prosecutor has sufficient evidence to convict you if the case were to proceed to trial. If you fail to complete any of the requirements, the prosecutor will file Motion to Revoke Diversion. Typically, if Diversion is revoked, the next procedural step is setting the case for what is technically a ‘trial’ on stipulated facts and you are found guilty of the underlying charge. Certain crimes, like DUI, carry a statutory mandatory minimum sentence which you must serve if convicted before you are eligible for probation. However, in most cases, the Court will impose a contract of probation with an underlying sentence that you will be required to serve if you violated the terms and conditions of the probation contract.


Q. I was accused of causing physical harm to another person with a vehicle yet when the police arrived the person I supposedly harmed was driving the vehicle and showed the police there was no cuts, lacerations, contusions, bruising, bleeding, or any other physical evidence of the crime having occurred. An EMT was called to the scene to check the supposed victim and the EMT told the police there was no evidence of an assault of any kind. The officer’s response was we have witnesses to the assault. They told the alleged victim and I that we were lying and they told me you’re going to jail. Since then the supposed victim has obtained a report from a doctor saying that there are no signs of any physical assault of any kind having ever occurred.

A. Police often ignore evidence of innocence when conducting an investigation. Their job is to collect ‘evidence’ for the prosecutor. Police are not in the business of looking for reasons to let you go – they are in the business of looking for reasons to arrest you. Based on the facts of this scenario as you report them, It sounds like a very solid case for trial. Get in touch with a criminal defense lawyer right away. Make sure you let prospective lawyers know everything about this incident and let them know that you are committed to trying this case. You do not want to hire the first lawyer who answers the phone only to find that he or she is only looking for a quick and easy plea agreement.


Q. Im 20 and last night I received an MIP at a bar for holding a beer of another person. I did not buy it and did not drink it but was caught holding it, I did not have my ID on me either so I was honestly obviously not able to buy or even hold a beer and the marks I received upon entering came off. I just want to see how bad of a situation I’m in?I had a friend put a small amount of meth in my purse. I was caught with it he took the charge. This is my first offence. Clear record.

A. Sadly, the pld phrase ‘possession is 9/10ths of the law’ applies here, even if it shouldn’t. Physically holding (possessing) the alcoholic beverage is sufficient to support the charge, even if you did not ‘own’ it or intend to consume it. A true first-offense conviction for MIP will typically result in payment of a fine and loss of driving privileges for 30 days – even if operation of a vehicle had absolutely nothing to do with the events leading up to the MIP charge. See if the prosecutor would consider offering Diversion in order to avoid the statutory drivers license suspension.


If police released you to a responsible party at the scene after submitting a Preliminary Breath Test sample that was positive for alcohol at .16%, then you are probably one of the luckiest persons I can think of. Provided the traffic stop was valid, failure of a ‘properly’ administered Preliminary Breath Test will typically provide valid probable cause to arrest for further testing – breath or blood – at the police station. Perhaps the stop occurred one minute before this officer’s shift was about to end? Perhaps you had been exceptionally police and cooperative? Who knows? But it is unlikely that any prosecutor would try to file formal criminal DUI charges arising from a traffic stop and a Preliminary Breath Test with no further chemical testing. Curious.


Dismissal of the charges might be overly optimistic. But that does not mean that you would be found ‘guilty’ of the offense. Courts will generally ‘dismiss’ charges only where there is an abject absence of evidence to support one of the necessary legal elements of the offense. If ‘some’ evidence exists to support each of the necessary elements, then the Court is generally obligated to allow the case to proceed to trial. That evidence may satisfy the ‘probable cause’ standard, but may fall far short of proof ‘beyond reasonable doubt’ at trial. I absolutely agree that you need an experienced and skilled criminal defense lawyer to explore and develop all fact defenses you have in this situation.


Definitely contact a qualified defense attorney in GA where the incident occurred to see if you can have the records expunged or vacated. If it was a misdemeanor offense with no prior or subsequent arrests or convictions, there should be some hope for having it expunged or vacated. If your current employer inquires, I think simply stating that the arrest was an unfortunate by-product of being in a relationship with an abusive partner is more than sufficient.


Certainly she would be guilty of filing a false police report if she had, in fact, reported this story to police. A general request that no one in particular do harm to someone else might be too vague to be actionable under the law. But I do believe local prosecutors would at least be curious to determine whether or not the offense of solicitation to commit a crime (battery) had occurred.


There is case law on point. The inference of guilt arising from appearance before the jury in jail attire is so strong that criminal defendants are entitled to wear street clothes for any appearance before a jury. I have actually succeeded in having the Court allow street clothes for any hearings where television or news cameras will be present, although that is certainly more difficult to achieve than for jury trial.


It always amazes me how people would never dream of drilling their own teeth or performing their own surgery, but at the same time are so eager to provide their legal advice and representation. One strategy may be to simply set the matter for trial, triggering the statutory ‘speedy trial’ limit of 180 days for an out-of-custody defendant. Force the City to take the continuances – which do not toll the limitations period. If the City cannot proceed before expiration of the limitations period for lack of evidence (KBI Lab Report) dismissal is the result. Note that the dismissal may likely be ‘without’ prejudice – meaning that the City may refile if and when they receive KBI lab reports. But plodding along for 2 1/2 years without ever requesting a trial setting and triggering the limitations period seems to be an unfortunate approach.


The general rule is that the individual would be charged according to his status when the crime was committed, not when the crime was discovered. This is loosely analogous to the general requirement that courts apply the statutes and penalty provisions that existed at the time a crime was committed. However, it is also true that the prosecutor may file a motion to waive the individuals to adult status based on statutory factors including the severity of the offense, whether or not the offense would constitute a ‘person’ crime if committed by an adult, whether or not the individuals have prior juvenile adjudications, and the age of the individual. At age 18, it is likely that there are comparatively fewer available resources in the juvenile system. Definitely contact a criminal defense attorney with experience in the juvenile system.


Can you contact your insurance agent and see if they can provide you with a hard copy of your proof of insurance? Can you e-mail the proof of insurance to yourself and pay the nominal fee ad any Fed-X/Kinkos to use a ‘public’ computer to access your email and print the attachment. I know for a fact that the DMV has a public fax machine sitting in the middle of the waiting area for persons to have their insurance companies fax proof of insurance for registration purposes. Maybe the Court Clerk would provide the Court’s fax number so your agent can fax proof of insurance to the Court? As an attorney, I have had to do that in prior cases to prove payment of insurance claims for accidents involving property damage, etc. I do agree, you need to get this handled ASAP so it does not snowball.


Medical treatment while in custody is a challenging issue. However, the State Department of Corrections is responsible for the health of persons in its custody. Clearly, if an inmate is experiencing an emergency medical situation beyond the scope of care available through the prison’s medical facility, outside treatment is warranted. The problem is that the Department of Corrections may not see chronic pain and neuropathy (numbness, tingling) as an ’emergency’ medical situation. See if your fiancé can sign a HPPA medical records release form authorizing his private practice physician to forward the records of his previous surgery to the Department of Corrections. If those records confirm the need for a second surgical procedure, and if your fiancé has private insurance that will pay for the procedure, perhaps the Department of Corrections would consider transfer to and from the private hospital for this procedure – especially if there is any possibility that delaying the procedure would cause permanent degradation of his condition?


In my experience the terms, conditions and restrictions of a Diversion contract for a first offense DUI charge are often virtually identical to the terms and conditions of probation for a first offense DUI. An example is a client who held a Commercial Driver’s License at the time of the DUI arrest. Even though he or she has no prior alcohol related driving offenses and there are no aggravating circumstances, holders of CDLs in Kansas are ineligible for Diversion of a DUI offense. For these clients, they often need to complete the exact same requirements as in a typical Diversion. They must complete a Drug and Alcohol Evaluation and any recommended course of substance abuse treatment, they must report to their court services officer on a monthly basis for the term of probation, and they must submit to random chemical testing to confirm abstinence form drugs and alcohol. So, there is likely little advantage to participating in ‘Probation’ as opposed to Diversion’ form a supervision or restriction standpoint. Moreover, if you do successfully complete the Diversion program, the underlying charges are technically dismissed. Unless this prosecutor has offered some significant mitigation of reporting or compliance requirements in exchange for a plea of guilty as opposed to participation in the Diversion program, it is difficult to see the advantage to pleading guilty.


I would think the Court would be pleased to know your friend is participating in in-patient treatment. But definitely have a lawyer confirm this fact and provide verification to the Court.


Definitely disclose this incident. Record of the charge and the diversion disposition will be available unless expunged. KS requires 3 years after successful completion of Diversion before filing a request to expunge an offense.


Definitely seek the assistance of an experienced defense attorney. Also, try to get licensed as soon as possible.


Definitely hire an experienced and aggressive criminal defense attorney. Aggravated assault typically requires proof of the element of intent or recklessness. If your husband discharged the weapon in good faith belief of risk of harm to himself or family, it does not seem to me as though his conduct was either intentional or reckless with regard to the neighbor. He may be liable for property damage, but the criminal charges seem a bit over-reaching based on the facts as you have presented them.


It may be possible to ‘salvage’ your Diversion. That would depend upon the nature of the alleged violation. If the Court does sustain the city’s Motion to Revoke Diversion, you would face conviction for the underlying DUI. Although you would likely be eligible for probation, you would need to serve the statutory mandatory minimum jail term before being eligible for probation. Moreover, entry of a formal ‘conviction’ for DUI would trigger suspension of your license even though you had a technical defense to the ‘administrative’ suspension.


KS Romeo & Juliet law is codified as “Unlawful Voluntary Sexual Relations” If both parties are under 19 years of age and if not more than 4 years separates the age of both parties, then it is possible that the case could be charged a “Unlawful Voluntary Sexual Relations” but ONLY if the alleged ‘victim’ does in fact agree that the sexual activity was voluntary. If the sexual activity was forced or coerced, then the proper charge is rape. Certainly, one can imagine a situation wherein a 15 year old girl voluntarily engages in sexual activity with her 18 year old boyfriend and when discovered by her parents, claims that the conduct was NOT voluntary in order to ‘save face’ at home. Easier to tell mom and dad that the older boy forced or coerced her than to admit to voluntarily engaging in sexual activity? If the defendant is certain that all activity was voluntary, then perhaps a carefully prepared cross examination of the victim at preliminary hearing is the best course of action.


The threshold for felony prosecution of a theft charge in KS is $1,000.00. It sounds like you used the company card 44 times over the 8 month period. I highly doubt that any one use eclipsed the $1,000.00 threshold for felony prosecution. However, unauthorized use of the credit device – the company card – likely constitutes the felony charge. How likely is the prosecutor to agree to a misdemeanor plea? Difficult to tell. That depends a lot on the strength of the evidence, the complexity or difficulty in presenting that evidence at trial, your criminal history, just to name a few factors. My hunch is that based on the period of time that this went on along with the heightened fiduciary duty and trust that exists in the employer/employee relationship, it may be difficult to get this prosecutor to back down to a misdemeanor charge.


Since it is highly unlikely that this problem will simply ‘go away,’ it seems as though the best course of action is to inform the prosecutor issuing the summons of the Defendant’s incarcerated status. That prosecutor will likely issue a warrant which will act as a ‘hold’ on the Defendant such that if he is released from custody in the neighboring county, he will be detained until collected by the sheriff of the county issuing the summons/warrant.


If the driver fled, the police may have valid probable cause to make an arrest for fleeing and eluding. That might provide support for a search incident to the driver’s arrest of any area within the driver’s reach in that car. If there were no properly licensed passengers who could have driven the car following the driver’s hypothetical arrest, the officers may have been justified in conducting an ‘inventory’ search of the vehicle prior to impounding it. I agree with Mr. Lewis that additional information is necessary to provide a better or more specific answer.


Without more information, it almost sounds like this child was ordered to stay at the group home as a condition of release pending the resolution of the gun charge. If he/she left the group home without permission, the Court may simply remand him to custody in the juvenile detention center until the gun charge is resolved. Also, if this child does not have strong ‘factual’ defenses to the gun charge such that he eventually must enter a plea, the Court may be reluctant to offer a contract of probation if he has already demonstrated an unwillingness to abide by the orders of the Court with regard to placement at the group home.


Whether or not she will be prosecuted is entirely up to the discretion of the county attorney. But from a legal perspective, ‘negligent’ or ‘accidental’ conduct will not support criminal charges. The conduct must be either intentional – or at least ‘reckless’ – in order to support criminal prosecution. It doesn’t sound like your daughter did this intentionally, so the prosecutor would need to prove that her conduct was more than simply ‘negligent.’ The prosecutor would need to prove that your daughter acted in a ‘reckless’ manner in order to satisfy the necessary legal element of ‘intent.’ Although this is possible – for example, if your daughter was knowingly playing with fireworks on a particularly dry or windy day in the vicinity of these dry hay bales – proving ‘recklessness’ can often times be more difficult than proving actual outright ‘intent.’ If you have already agreed to pay for the hay bales and no one was injured, I would hope that the county attorney would have more important issues to prosecute.


I agree that the charging decision will be based largely on where the cocaine is discovered. Your husband must generally have equal access to and equal opportunity to control the contraband in order to be held legally responsible for it. If the cocaine is found in the driver’s pants pocket, your husband is in a much better position than if the cocaine is found under the passenger seat or passenger floor mat where he was seated. Of course, if your husband and the driver each waived their respective rights to remain silent about the cocaine and provided explanations of whose it was and where it came from, these statements may skew an analysis based solely on location of the contraband in the vehicle. Hire a lawyer.


That depends upon the jurisdiction where the alleged sexual activity occurs. In Kansas, an individual is deemed old enough to consent to sexual activity at age 16. So, provided the activity was entirely consensual, sexual relations between a 19 year old and a 17 year old are legal in the state of Kansas. However, keep in mind that even though an individual is deemed old enough to consent to sexual activity at age 16, the age of consent for participation in any visual depiction is 18. So definitely do NOT make any ‘home movies’ of the activity or take any nude pictures of your partner until that individual is over the age of 18.


In Kansas there are 2 standards for withdrawal of a guilty plea in a criminal matter. If you wish to withdraw your plea before sentence has been entered, the standard requires that you demonstrate “good cause” to withdraw the plea. Clearly, newly discovered exculpatory evidence may satisfy that standard. If you move to withdraw the plea of guilty after sentence has been entered, then you must demonstrate to the Court that denying the request to withdraw the plea would result in “Manifest Injustice.” Clearly, prevention of “Manifest Injustice” is a MUCH higher standard than demonstration of “good cause.” However, if newly discovered evidence is highly exculpatory and was not available to you or your lawyer prior to entry of the guilty plea, that evidence may very well satisfy the “Manifest Injustice” standard.


 

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