Archive for October, 2010

KBA ADVERTISING COMMISSION SAID TO BE CONSIDERING NEW RULE THAT REGULATES LAWYER COMMENTS ON FACEBOOK….

Monday, October 25th, 2010

  We have been advised that the KBA recently proposed  an amendment to the regulations of the Attorneys’ Advertising Commission. This regulation apparently attempts to bring postings on Facebook within their jurisdiction.

As we understand it,  the proposed amendment to the advertising rules will limit a lawyer’s participation on social media outlets such as FaceBook.  

The bias of the KBA against most forms of attorney advertising is evident.  Federal court rulings have forced bar associations to limit their heavy hand on attorney advertising, but the bar associations seem to continually come up with new rules to limit what the Federal courts have allowed. 

We would not have known of this proposed regulation had not we been alerted by a bar member.

We have found no mention of this proposed rule on the KBA website. The KBA website has a section on the Advertising Commission (http://www.kybar.org/398) lists currents rules but does not mention the proposed amendment.

If you support more regulation of your conduct by the KBA tell your elected members of the Board of Governors.  Likewise if you oppose more regulation you should speak up.

KBA Members wishing to comment on the proposed regulations must do so in writing. 

Written comments must be sent on later than December 15, 2010 to the Attorney’s Advertising Commission, c/o KBA Executive Director, 514 West Main Street, Frankfort, KY  40601-1812. 

ARTICLE SENT TO LAWREADER BY LAWYER:

 Communications made by a lawyer using a social media website, that are of a non-legal nature are not considered advertisements; however, those that are of a legal nature are governed by SCR 3.130-702(1)(j) [defining “advertise”]. …..  “Advertise” means to furnish any information or communication containing a lawyer’s name or other identifying information, and an “advertisement” is any information containing a lawyer’s name or other identifying information, except the following …. Information and communication by a lawyer to members of the public in the format of web log journals on the internet that permit real time communication and exchanges on topics of general interest in legal issues, provided there is no reference to an offer by the lawyer to render legal services.

So, if you list your employment and education under the info tab as an attorney, is that a communication of a legal nature?  Should we hide the fact that we are attorneys? 

Technically, as written, simply listing your name brings an attorney within the purview of the rule.  Should we use an alias?  What’s the difference between Facebook and a web log journal?  Facebook permits real time communication and exchanges on any topic, legal or non-legal.  With a laptop, blackberry or I-phone, while stuck in Court waiting for a case call, you can respond quicker to Facebook inquires than you can respond to the fifty voicemails waiting for you back at the office. Or, you can do cross word puzzles or sudoku.

 If a chimpanzee mauls one of my friends will simply posting a “get well soon, let me know if I can be of any assistance” comment on the friend’s wall be considered an offer to render legal services.  Probably, under the new rule; however, if I wrote a 10,000 word essay on the liability aspects of keeping chimps as pets, this would be a topic of general interest and permissible under the new rule.  If I attach a profile badge to a commissioned approved website, does that bring me within compliance under the new rule?  If I attach a profile badge to a non-commissioned website is this a violation?   If one of my attorney friends violates the new rule, with the posting appearing on my news-feed, must I report them per the snitch rule.

 Why is this rule change necessary if I’m just talking to my friends.  I was once told by an attorney, who shall remain anonymous, but is tagged in this note, that we are not in the law business to make friends.  Are we even allowed to have friends? Apparently the answer is no.              

 

England reforms lawyer discipline by new act which replaces Bar Associations

Monday, October 25th, 2010

The Legal Services Act of 2007 removes the bar associations from the regulation of lawyer licensing.  The new body created to replace the self-regulation by the legal profession in England and Wales, focuses on consumer protection.

This concept is interesting, and provides an alternative to the secrecy policies of american bar associations.

ENGLAND

England’s Legal Services Act of 2007, mandated the end of the legal profession’s self-regulation and separated its regulation from its self-interested representative or political function. The Legal Services Board was appointed on September 1, 2008 pursuant to the Act, and it will be the single independent oversight regulator of legal services in England.

The Board will supervise all licensing authorities and oversee lawyer regulation. It is appointed entirely by the government. Most of the appointees are non-lawyers chosen for their regulatory and other public affairs experience, and some are consumer advocates. An Office of Legal Complaints will be established and monitored by the Board, completely independent of the profession, and will deal with consumer complaints according to an ombudsman scheme. The Complaints Commissioner must be a non-lawyer.

See: Legal Services Act 2007 – Wikipedia, the free encyclopedia  

The Legal Services Act 2007 is an Act of the Parliament of the United Kingdom that seeks to liberalise and regulate the market for legal services in England
en.wikipedia.org/wiki/Legal_Services_Act_2007 -

Legal Services Act of 2007  (England and Wales)

The Legal Services Act reforms the way legal services in England and Wales are regulated and puts the consumer interest at the heart of the regulatory framework.

Drivers for reform of the regulatory framework

The need for a more effective regulatory structure

1              The problems associated with the current regulatory framework can be seen in terms of regulatory proliferation, confusion and fragmentation; the propensity of the current structure to create regulatory anomalies and gaps; and the difficulties of interface and co-operation.

2              Overlaps in the current regulatory framework mean that the Secretary of State for Constitutional Affairs has the power to alter rules relating to the qualification or conduct of persons exercising rights of audience or rights to conduct litigation. In addition, all rules of the Law Society require the approval of the Master of the Rolls.

3              For consumers, the complexities of the current system means that many will not have sufficient information to distinguish between the levels of protection they are afforded under different parts of the regulatory framework and by unregulated providers. This lack of information creates a risk that unregulated service providers

4              may drive out regulated ones, reducing quality and diminishing choice. It also means that consumers are not protected in a consistent fashion.

5              1.20. It should be noted that almost everyone will need to use legal services at some point, and on the occasions when they do it will often be in highly stressful circumstances

6              (e.g. when moving home, resolving a family dispute, being involved in a court case or carrying out a business transaction).

7              1.21. For some legal services, namely litigation and advocacy, providers can potentially be subject to varying degrees of regulation, or regulatory influence, by a number of bodies including professional bodies, oversight regulators, service or other sectoral regulators (such as the Financial Services Authority), purchasers of legal services (particularly where, as in the case of the Legal Services Commission, they set quality requirements), and insurers.

8              1.22. The existing asymmetry of information in respect of the regulatory standards applied to different providers of legal services may also create significant anomalies between lawyers regulated by different frontline bodies, and between lawyers and non-lawyers, in terms of both consumer protection and regulatory burdens.

9              1.23. Gaps in the current arrangements generally mean that an Act of Parliament is needed to provide the protection that consumers need where a new or additional activity needs to be subject to regulatory control (e.g. claims management services). This means it is difficult to put safeguards in place quickly when new problems arise. The current system of regulation is therefore not flexible enough to offer consumers the protection they need and deserve.

10           1.24. Potential conflicts of interest also arise in the existing framework, with most of the regulators of legal professionals also performing a representative role, acting as advocates for their members. This raises concerns as, arguably, there is a risk that the regulators’ judgements might be unduly influenced by putting the interests of members above those of consumers of legal services and thus undermining public confidence in the legal services sector. Even when this is not the case, the perception of undue influence on regulators’ considerations may be damaging to the image of the profession. However, largely in response to the recommendations made by Sir David Clementi, the Law Society and the Bar Council have recently announced that they are to establish separate arms to deal with regulation of their respective professions, which will be ring-fenced from representative interests.

Legal Services Act 2007 – Ministry of Justice    

Mar 12, 2009 Legal Services Act 2007. Legal books. The Legal Services Act reforms the way legal services in England and Wales are regulated and puts the
www.justice.gov.uk/publications/legalservicesbill.htmCachedSimilar

Proposed KBA rule to extend their jurisdiction over your Facebook comments…

Wednesday, October 20th, 2010

LawReader recently received a comment on a proposed KBA ethics rule that places FaceBook postings under the control of the KBA..   The anonymous author is apparently a lawyer, and sees this proposed rule as a further extension of the control of the KBA over lawyer’s personal lives. You may want to comment on this rule.  See directions below.

Message to LawReader:

“The KBA recently proposed the following amendment to the regulations of the attorneys’ advertising commission that will bring Facebook within their jurisdiction:

 Communications made by a lawyer using a social media website, that are of a non-legal nature are not considered advertisements; however, those that are of a legal nature are governed by SCR 3.130-702(1)(j) [defining “advertise”]. …..  “Advertise” means to furnish any information or communication containing a lawyer’s name or other identifying information, and an “advertisement” is any information containing a lawyer’s name or other identifying information, except the following …. Information and communication by a lawyer to members of the public in the format of web log journals on the internet that permit real time communication and exchanges on topics of general interest in legal issues, provided there is no reference to an offer by the lawyer to render legal services.

So, if you list your employment and education under the info tab as an attorney, is that a communication of a legal nature?  Should we hide the fact that we are attorneys? 

Technically, as written, simply listing your name brings an attorney within the purview of the rule.  Should we use an alias?  What’s the difference between Facebook and a web log journal?  Facebook permits real time communication and exchanges on any topic, legal or non-legal.  With a lab-top, blackberry or I-phone, while stuck in Court waiting for a case call, you can respond quicker to Facebook inquires than you can respond to the fifty voicemails waiting for you back at the office. Or, you can do cross word puzzles or sudoku.

 If a chimpanzee mauls one of my friends will simply posting a “get well soon, let me know if I can be of any assistance” comment on the friend’s wall be considered an offer to render legal services.  Probably, under the new rule; however, if I wrote a 10,000 word essay on the liability aspects of keeping chimps as pets, this would be a topic of general interest and permissible under the new rule.  If I attach a profile badge to a commissioned approved website, does that bring me within compliance under the new rule?  If I attach a profile badge to a non-commissioned website is this a violation?   If one of my attorney friends violates the new rule, with the posting appearing on my news-feed, must I report them per the snitch rule.

 Why is this rule change necessary if I’m just talking to my friends.  I was once told by an attorney, who shall remain anonymous, but is tagged in this note, that we are not in the law business to make friends.  Are we even allowed to have friends? Apparently the answer is no.              

 KBA Members wishing to comment on the proposed regulations must do so in writing. 

Written comments must be sent on later than December 15, 2010 to the Attorney’s Advertising Commission, c/o KBA Executive Director, 514 West Main Street, Frankfort, KY  40601-1812. 

 Facebook notes, comments, tweets, etc., don’t count.”

California prosecutor errors go unpunished, Prof. says

Tuesday, October 12th, 2010

 

By Merrill Balassone | The Modesto Bee    Oct. 2010

Hundreds of California prosecutors — including a handful in the Northern San Joaquin Valley — committed ethical lapses in the courtroom without being punished, according to a report released this week.

Of the 707 cases in which courts found evidence of misconduct from 1997 to 2009, just six prosecutors faced public sanctions by the State Bar. Researchers examined more than 4,000 appeals that alleged misconduct on the part of prosecutors.

“They’re simply not being held accountable,” said Cookie Ridolfi, director of the Northern California Innocence Project, author of the study and a law professor at Santa Clara University. “They answer to no one, and prosecutors are the most powerful people in the justice system.”

Prosecutors have absolute immunity against civil liability no matter how egregious the misconduct, Ridolfi added. The study’s cases ranged from failing to turn over evidence that could help a defendant, to asking witnesses improper questions during trial and presenting false testimony in court.

Stanislaus County District Attorney Birgit Fladager strongly denounced the report as a public relations campaign by anti-death penalty advocates. She called the term “prosecutorial misconduct” misleading and pejorative.

Read the full story at Modbee.com 

Read more: http://www.mcclatchydc.com/2010/10/10/101845/california-prosecutor-errors-go.html#ixzz12BQkLw7E

Ex-prosecutor to be tried for alleged lies in drug trial

Tuesday, October 12th, 2010

Doug Guthrie -The Detroit News

Detroit — A former Wayne County prosecutor was ordered today to stand trial on criminal charges for alleged lies during a 2005 drug trial.

Former Assistant Wayne County Prosecutor Karen Plants was bound over for trial in circuit court by 36th District Judge David Robinson Jr. following a two day preliminary examination of evidence presented against them by Michigan’s Attorney General.

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The judge will consider Wednesday whether to bind over retired Circuit Judge Mary Waterstone, Inkster Police Sgt. Scott Rechtzigel and Officer Robert McArthur The case stems from one of Metro Detroit’s biggest cocaine busts. During the trial, a paid undercover drug informant’s role was hidden and misrepresented through alleged lies from the officers while testifying under oath and from Plants in statements she made to the jury. Later, Waterstone also was informed of the lies, according to the prosecution.

“Why is it important for the jury to know the truth about Mr. Povish’s role,” Assistant Michigan Attorney General William Rollstin asked. “They were told he was an unwitting participant of this crime and he was offered no deals for his testimony. But it’s not true. He’s being paid. He’s an agent of the government and Ms. Plants and the officers know this. The judge (Waterstone) knows this… yet the train keeps on rolling.”

Povish testified Monday and today that he was coached by Plants and the officers to lie during a trial connected to one of Wayne County’s biggest cocaine busts. Povish said he feared for his life if revealed as the informant who led investigators to Alexander Aceval and the more then 100 pound shipment of high quality cocaine delivered to his Riverview bar and nightclub, J Dubs.

Povish said he was to be paid 10 percent to 20 percent of everything seized as a result of Aceval’s conviction. Povish said he was told forfeiture of Aceval’s home and other belongings under the state’s drug laws could amount to $1 million. But, Povish said he was paid a total of $4,500 and has spoken with a lawyer about suing authorities for what he believes is still owed to him.

Waterstone retired before being charged in March 2009 with felony misconduct in office for allegedly allowing the perjury, despite being told about it by Plants. Waterstone faces up to five years behind bars if convicted.

Plants retired after being charged with obstruction of justice for allegedly participating in perjury designed to hide the identity of the informant. Rechtzigel and McArthur face the same perjury charge, which carries a possible life sentence.

Povish testified that he was coached before court hearings and the trial by Plants and the two police officers that he should say he hadn’t met the officers before he was arrested alongside Aceval. Law forbids lying under oath, leaving authorities with the choice in this case, according to the Attorney General, of using a different witness or revealing Povish’s participation with police.

Povish said Plants told him in preparation for the 2005 trial that, “she spoke with the judge and it was OK to say I didn’t know the officers before this (the drug bust).”

Transcripts of the original trial detail closed-door meetings where Plants told Waterstone about manipulating Povish’s testimony. Although the judge was informed of the perjury, Aceval’s trial attorney wasn’t told.

That attorney, James Feinberg, testified Monday that he suspected the manipulation and complained to the judge during the trial. He later filed complaints of prosecutorial misconduct against Plants.

The case has been punctuated by legal wrangling and appeals to higher courts. It took 1½ years to complete the preliminary examination done in most criminal cases within 14 days of the defendant’s being charged..

More legal complications arose today, but Judge Robinson denied numerous requests from six lawyers representing the four defendants, including an effort to interrogate under oath the assistant Michigan attorney general who is prosecuting the case.

William Rollstin had earlier been targeted by defense efforts to have him removed from the case because he had served on the team of investigators that questioned some of the defendants prior to being charged. An argument that the Attorney General’s office itself should be removed from prosecuting the case went all the way to the Michigan Supreme Court, and failed.

The judge also declined today to allow the prosecution to present testimony from Larry Dubin, a University of Detroit Mercy professor and expert on legal ethics. Robinson said the testimony of an expert on the rules of conduct for lawyers was not useful in helping him determine if crimes were committed.

Wayne County Prosecutor Kym Worthy was criticized after the trial for not investigating claims of perjury against one of her own assistants while doggedly pursuing perjury charges against then-Detroit Mayor Kwame Kilpatrick and his ex-chief of staff, Christine Beatty.

Attorney General Mike Cox took over the case after Worthy stepped aside, citing a conflict of interest. Worthy has said she was unaware of the circumstances and publicly spoke in defense of Plants following the accusations. Cox took the case only after four other county prosecutors refused.

Aceval is serving 10 to 15 years in prison. His appellate attorney, David L. Moffitt, has made numerous requests of the Michigan Supreme Court to hear an appeal of the drug conviction. Moffitt has obtained permission to argue before the court next month. Justice Maura Corrigan has already declined to participate in any review of the case because she intends to serve as a character witness if her friend Waterstone is ordered to trial.

From The Detroit News: http://www.detnews.com/article/20101012/METRO01/10120427/1361/Ex-prosecutor-to-be-tried-for-alleged-lies-in-drug-trial#ixzz12BR2GOGa

Chief Justice Minton announces creation of new Kentucky Access to Justice Commission

Monday, October 11th, 2010

Chief Justice Minton announces creation of Kentucky Access to Justice Commission

 FRANKFORT, Ky., Oct. 14, 2010 – Today Kentucky joined nearly two dozen states where supreme courts have formed Access to Justice Commissions to engage the judiciary in delivering civil legal aid to low-income citizens.

 Chief Justice John D. Minton Jr. announced the creation of the Kentucky Access to Justice Commission at a news conference in the Supreme Court Courtroom in the Capitol. Chief Justice Minton was joined by Justice Bill Cunningham, the Supreme Court of Kentucky liaison on the commission, and Judge Roger L. Crittenden (ret.), interim chair of the commission.

 “The need for legal aid in Kentucky is great and it is growing,” said Chief Justice Minton. “Kentucky Legal Aid receives 4,000 calls a month requesting legal help and closes about  24,000 cases each year, which provides critical assistance to 68,000 low-income families and children who have nowhere else to turn for help. Those numbers may seem high, but in fact about 55 percent of the people who apply and are eligible for legal aid services are turned away because of lack of resources.”

 The Kentucky Access to Justice Commission has been formed by an order of the Supreme Court of Kentucky. Chief Justice Minton is in the process of appointing members to the commission in preparation for the KAJC’s first meeting on Jan. 28, 2011. There will be 25 appointed members and five ex-officio members. The names of the members will be announced in the coming weeks.

 The KAJC will be charged with several key goals, according to Judge Crittenden, a retired Franklin County circuit judge who is interim chair of the commission. “Our primary responsibilities are to identify the needs of the legal services community in providing legal services to the poor, create a statewide plan to deliver the legal services, and develop strategies to increase resources and funding for the legal services,” he said.

 “What sets these commissions apart from other legal aid efforts, such as blue-ribbon task forces, is the involvement of the judiciary at all levels,” said Justice Cunningham, who represents the 1st Supreme Court District in Western Kentucky. “The importance of judicial leadership cannot be overstated. There must be an ongoing partnership between the judiciary and the state and local bar associations, legal aid providers, law schools, elected officials and other community leaders.”

 “We’d like to see a jump in pro bono work by Kentucky’s attorneys,” said Justice Cunningham. “In 2009, volunteers with legal aid pro bono programs helped 5,368 people. The Kentucky Bar Association is reporting that its members increased their pro bono hours by 18 percent for a total of 14,687 hours. We’re moving in the right direction, but we must accelerate these efforts if we want to reduce the gap between those who can access legal services and those left without.”

 “Kentucky’s four civil legal aid programs are committed to the principle that justice should be available to all persons without regard to economic status,” said Jeffrey A. Been, executive director of the Legal Aid Society in Louisville. “Each day our four programs reach and help thousands of Kentuckians who face economic barriers to accessing our justice system. Yet, despite our strong partnerships with local bar associations in pro bono efforts and despite the generous charitable support our programs receive, we are only able to help a portion of those who seek our assistance. We believe an Access to Justice Commission offers great promise and we look forward to working with and supporting the commission in this important endeavor.”

 Bckground on AJCs

Access to Justice commissions nationwide are supported by the American Bar Association and the national Conference of Chief Justices. Chief Justice Minton said the Conference on Chief Justices passed a resolution in 2006 that acknowledged the importance of judicial leadership in establishing partnerships with a state’s legal community to ensure equal access to justice. The resolution called for states to seek results in three areas:

 1)    To remove impediments to access to the justice system, including physical, economical, psychological and language barriers;

2)    To develop effective plans for funding for civil legal services for those who have no meaningful access to the justice system; and

3)    To expand assistance available for self-represented litigants.

 While the roots of the Access to Justice movement date back to the 1990s, the Texas Access to Justice Commission created in 2001 is credited as being the first formal model. Leaders of less formal AJC groups from other states soon followed Texas and moved to solidify their efforts with various modifications to their respective commissions. As of spring 2008, the American Bar Association Resources Center reported that 19 states had created commissions with similar goals. They included Alabama, Mississippi, North Carolina, South Carolina, Tennessee, West Virginia and Wyoming.

2010 AMENDMENTS TO KENTUCKY DUI LAW

Monday, October 11th, 2010

By LawReader Senior Editor Stan Billingsley

   Several recent changes have been made to KRS Chapter 189A (DUI).  These became effective July 15, 2010.  The most significant change is the addition of a list of drugs which if tested in the driver’s blood within two hours of driving can constitute a DUI offense.  Other provisions provide a defense to having any of these drugs in your blood if you did so in compliance with a prescription by a physician.

The legislature also lower the trigger point for BA content to become an aggravator.  The old limit was .18 and the new limit is .15.

 

 

KRS 189A.010  Amendments

 

AGGRAVATOR:

The legislature reduced the BA level to .15 from the prior .18 reading, for the aggravator to apply to the sentence.

CONVICTION ALLOWED IF LISTED DRUGS IN BLOOD:

The legislature added a list of drugs which if tested within two hours of driving were present in the blood, could result in a DUI conviction. See below.

 They placed an exception for validly prescribed drugs:

 

“KRS 189A010  (4) (b) A laboratory test or tests for a controlled substance shall be inadmissible as evidence in a prosecution under subsection (1)(d) of this section upon a finding by the court that the defendant consumed the substance under a valid prescription from a practitioner, as defined in KRS 218A.010, acting in the course of his or her professional practice.”

 

 

KRS 189A010  - “(1) A person shall not operate or be in physical control of a motor vehicle anywhere in this state:

 

(d) While the presence of a controlled substance listed in subsection (12) of this section is detected in the blood, as measured by a scientifically reliable test, or tests, taken within two (2) hours of cessation of operation or physical control of a motor vehicle;

 

 

(12) The substances applicable to a prosecution under subsection (1)(d) of this section are:

(a) Any Schedule I controlled substance except marijuana;

(b) Alprazolam;

(c) Amphetamine;

(d) Buprenorphine;

(e) Butalbital;

(f) Carisoprodol;

(g) Cocaine;

(h) Diazepam;

(i) Hydrocodone;

(j) Meprobamate;

(k) Methadone;

(l) Methamphetamine;

(m) Oxycodone;

(n) Promethazine;

(o) Propoxyphene; and

(p) Zolpidem.

Effective: July 15, 2010

History: Amended 2010 Ky. Acts ch. 149, sec. 17, effective July 15, 2010.

KRS 189A.050  Amendments

 

The DUI service fee split has been amended by addition of Section (g):

 

“(g) The remainder of the amount collected shall be transferred to the general fund.(4) The amounts specified in subsection (3)(a), (b), (c), and (d) of this section shall be placed in trust and agency accounts that shall not lapse.”  2010

 

-

KRS 189A.070  Amendments

 

A new section  (8) added

 

 (7) A person whose license has been revoked pursuant to subsection (1)(b), (c), or (d) of this section may move the court to reduce the applicable minimum period of revocation by one-half (1/2), but in no case less than twelve (12) months. The court may, upon a written finding in the record for good cause shown, order such a period to be reduced by one-half (1/2), but in no case less than twelve (12) months, if the following conditions are satisfied: (a) The person shall not operate a motor vehicle or motorcycle without an ignition interlock device as provided for in KRS 189A.340(2);

(b) The person shall not operate a motor vehicle or motorcycle at any other time and for any other purposes than those specified by the court; and

(c) The ignition interlock device shall be installed on the motor vehicle or motorcycle for a period of time not less than the applicable minimum period of revocation provided for under subsection (1)(b), (c), or (d) of this section nor for more than the respective maximum period of revocation provided for under subsection (1)(b), (c), or (d) of this section.

(8) Upon a finding of a violation of any of the conditions specified in subsection (7) of this section or of the order permitting any reduction in a minimum period of revocation that is issued pursuant thereto, the court shall dissolve such an order and the person shall receive no credit toward the minimum period of revocation required under subsection (1)(b), (c), or (d) of this section.

Effective: July 15, 2010

KRS 189A.085  Amendments

 

Sections (3) and (4) added:

 

“(3) If the license plate of a jointly owned vehicle is impounded, this vehicle may be transferred to a joint owner of the vehicle who was not the violator.

(4) If the license plate of a motor vehicle is impounded, the vehicle may be transferred.”

Effective: July 15, 2010

KRS 189A.090  Amendments

 

Section (e) of KRS 189A.010  added to penalty phase of KRS 189A.090:

KRS 189A.010 ( e) “While under the combined influence of alcohol and any other substance which impairs one’s driving ability; …”

Added to penalty provisions of KRS 189A.090

(b) For a second offense within a five (5) year period, be guilty of a Class A misdemeanor and have his license revoked by the court for one (1) year, unless at the time of the offense the person was also operating or in physical control of a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c), (e),  or (d), in which event he shall be guilty of a Class D felony and have his license revoked by the court for a period of two (2) years;

(c) For a third or subsequent offense within a five (5) year period, be guilty of a Class D felony and have his license revoked by the court for two (2) years, unless at the time of the offense the person was also operating or in physical control of a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c), or (d) (e),, in which event he shall be guilty of a Class D felony and have his license revoked by the court for a period of five (5) years.

KRS 189A.105  Amendments

 

AMENDED TO REFLECT LOWER BA LEVEL  (PREVIOUSLY .18)

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 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 0.18; and…

KRS 289A.240 Amendments

KRS 189A.240  AMENDED TO ADD SECTION (E) OF KRS 189A.010 VIOLATION (REGARDING DRUGS.)

KRS 189A.240 Judicial review of pretrial license suspension for repeat offender.

In any judicial review of a pretrial suspension imposed under KRS 189A.200(1)(b), if the court determines by a preponderance of the evidence that:

(1) The person was charged and arrested by a peace officer with a violation of KRS 189A.010(1)(a), (b), (c), (d), or (e);

(2) The peace officer had reasonable grounds to believe that the person was operating a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c), (d), or (e);

(3) There is probable cause to believe that the person committed the violation of KRS 189A.010(1)(a), (b), (c), (d), or (e) as charged; and

(4) The person has been convicted of one (1) or more prior offenses as described in KRS 189A.010(5)(e) or has had his motor vehicle operator’s license suspended or revoked on one (1) or more occasions for refusing to take an alcohol concentration or substance test, in the five (5) year period immediately preceding his arrest, then the court shall continue to suspend the person’s operator’s license or privilege to operate a motor vehicle. The provisions of this section shall not be construed as limiting the person’s ability to challenge any prior convictions or license suspensions or refusals.

Effective: July 15, 2010

NOMINATIONS SOUGHT FOR 2011 OUTSTANDING JUDGE, LAWYER, DONATED LEGAL SERVICE AND BRUCE K. DAVIS BAR SERVICE AWARDS

Saturday, October 2nd, 2010

The Kentucky Bar Association is accepting nominations for the 2011 Outstanding Judge and Lawyer, Donated Legal Services, and Bruce K. Davis Bar Service Awards.

Nominations must be received by Dec. 31, 2010. If you are aware of a Kentucky judge or lawyer who has provided exceptional service in these areas, you may download the nominating form or contact Melissa Blackwell at mblackwell@kybar.org or by phone at (502) 564-3795, ext. 222 to have the form mailed to you. For a description of the awards, click here.