Criminal Law in Kentucky—FAQs
Being accused of a crime can mean serious consequences for any individual. Therefore, it is extremely important that both you and your lawyer understand your Constitutional Rights. Please take the time to review the topics below for information about your rights and the criminal process.
What should I do if arrested?
First, it is important to remember that you ALWAYS have the right to remain silent. A person being arrested or accused of a crime often feels that they can simply explain their side of the story in order to quickly resolve the situation. However, anything you say to a law enforcement official can and will be used against you in court. It is never a good idea to give a statement to law enforcement without consulting an attorney.
You should also remember that you ALWAYS have the right to request an attorney. Law enforcement officials are required to cease any interrogation upon your request for an attorney. Therefore, you should ALWAYS invoke your right to have an attorney.
While there are certain situations where a law enforcement officer can search you or your property without a warrant, you should ALWAYS remember that you generally have the right to refuse a law enforcement officials request to search your residence or property. Anything found in a law enforcement search can and will be used against you in court. Therefore, you should ALWAYS insist that a law enforcement officer obtain a warrant prior to conducting a search.
Why do I need a Louisville criminal lawyer?
A lawyer is essential to ensure that you obtain the best result available to you under whatever circumstances you are facing. Often times a lawyer can present you with options that you might not otherwise know even existed. Additionally, it is important you know any and all defenses available to you under the law prior to making a decision to resolve your case, and a good attorney will take the time to explain all of these options.
The legal system can also be extraordinary confusing and complicated. Even the process of going to court without an attorney on a simple speeding ticket can be extremely time consuming and frustrating. Your attorney should not only help you understand your rights and explain what risks you are facing, but he or she should also assist you in smoothly maneuvering the process of going to court. In fact, many misdemeanor and traffic offense can even be handled solely by your attorney without any requirement that you appear in court. Therefore, it is important that you not only retain an attorney who is knowledgeable and experienced, but you should also find an attorney who wants to help you most effectively maneuver the criminal process.
What is the difference between a misdemeanor and a felony?
Generally, misdemeanor offenses are those offenses which carry a maximum penalty of less than a year in jail. Typical misdemeanor offenses include DUI, Possession of Marijuana, Assault in the Fourth Degree and Possession of a Controlled Substance in the Third Degree, etc… Misdemeanor offense are generally handled in District Court and are prosecuted by the County Attorney’s Office.
Felony offenses are charges that carry more than one year in jail. They can typically include Trafficking in a Controlled Substance, Assault (Third, Second or First Degree), Murder, Rape etc…
Felony offenses are ultimately handled in Circuit Court and are prosecuted by the Commonwealth Attorney’s Office.
What is the role of the grand jury?
While many felony charges begin in District Court, they are generally resolved in Circuit Court (unless they are amended to a misdemeanor). In order for a charge to transfer from District Court to Circuit Court they must first be presented to the Grand Jury. The Grand Jury is operated by the Commonwealth Attorney’s office and is generally conducted without a judge and outside of the presence of the person being charged. In fact, an individual can even be ‘directly indicted’ by the Grand Jury, meaning that they may never know that they were being investigated until after they have been indicted. Consequently, it is extremely important that you contact an attorney even if you simply suspect that you are subject to felony indictment by a Grand Jury.
What is the difference between probation, shock probation and parole?
While many serious felony offenses such as Rape, Robbery, Assault and Murder do not carry the possibility of probation, most misdemeanor and felony criminal offense provide a defendant with the potential of probation. Probation can take many forms and can be either supervised by a probation officer or unsupervised. While probation can be agreed on by both the prosecution and the defense in many cases, the judge has the ultimate authority to decide whether a person is place on probation or sent to jail/penitentiary.
In the event a judge denies a defendant’s motion to for probation and orders him or her to be incarcerated, the laws of Kentucky provide for the option of filing a ‘shock probation’ motion. A shock probation motion can be filed anytime between 30 days and 180 days from the date of a defendant’s sentencing. Shock probation is a request of the sentencing judge to convert a defendant’s sentence from incarceration to probation based upon the theory that the time served by the defendant has caused him or her to become a better candidate for probation. Shock probation is not available to a defendant who was not initially eligible for probation because of the nature of his or her charges.
Parole is granted for an individual who has either (1) had his or her motion for probation denied by a judge or (2) was found guilty or plead guilty to an offense under which he or she was not eligible for probation. Parole is decided by the Parole Board and eligibility depends on the offense on which the defendant is serving. Most offense in Kentucky carry either a 20 percent or 85 percent parole eligibility, meaning that a defendant would have to serve at least 20 or 85 percent of his or her sentence before being considered for parole by the Parole Board.