DC Metro Police Gets Stung – “Stingrays” are Searches that Require Warrants


The DC Court of Appeals delivered another victory to privacy advocates in what appears to be growing restrictions on law enforcement’s technical abilities to use your cell phone against you. In Jones v. United States, the Washington DC Metro Police Department’s use of a cell-tower simulator, referred to as “Stingrays,” violated Prince Jones’ Fourth Amendment right to be free from unreasonable searches.

Stingrays have been around for several years, but the exact technical abilities are kept largely secret. Primarily, they are portable devices that law enforcement can use to track a suspect’s GPS location in real time using their cell phone. If law enforcement obtains the special identification number of a suspect’s phone (which will ordinarily be provided by the cell phone provider following a government subpoena), the police can trick the suspect’s phone into giving away its location. After inputting the special identification number, the police will drive around the general area where they believe the suspect may be. If his phone is turned on, and the Stingray locates it, the Stingray will hijack the cell phone by tricking it into communicating with the Stingray instead of a normal cell tower.

In Jones, law enforcement was investigating two complaints of sexual assault and robbery. The suspect had communicated with two female escorts regarding their services and then forced the victims to commit sexual acts at knife point; then he robbed them of their phones. Police were able to identify a phone number used to communicate with both victims, and their subsequent investigation led them to Prince Jones. Initially, police tried to geolocate Jones through the cell phone provider using GPS associated with the cell towers. However, this tracking covered a wide area and could not pinpoint Jones’ location. Police then used their Stingray to locate Jones driving. They stopped his car and searched him, finding the phones belonging to the victims.

The “exclusionary rule” is a tool used by courts to deter unlawful police searches. Courts must balance the needs of law enforcement to obtain evidence against the privacy protections provided by the Fourth Amendment. There are several exceptions to the exclusionary rule, primarily rooted in situations where deterrence would not be achieved. Jones moved to exclude the phones, along with other evidence obtained at the scene, on the basis of an unlawful search. The government argued, and the trial court agreed, that even if the search was unlawful that the evidence would have “inevitably” been discovered, and thus the exclusionary rule shouldn’t apply. Under the inevitable discovery doctrine, evidence that would have been discovered through lawful process is not excluded because the underlying concept of deterrence is unnecessary. For example, if two police officers are investigating a crime and one unlawfully searches the suspect’s car, but unknown to that officer the other officer had obtained a search warrant for the car, the evidence found by the violating officer would have been discovered by the nonviolating officer executing the warrant. Such evidence would be “inevitably” discovered and should not be excluded.

The DC Court of Appeals disagreed with the government, stating that in this case Jones was only located because of the unlawful use of the Stingray, and the evidence they found in his car would not have “inevitably” been discovered but for the Stingray. The Court opined that cell phones are necessary devices that convey sensitive information. GPS location can reveal criminal activity, but it can also reveal lawful yet sensitive information such as where an individual goes to church, where they go to the doctor, if they have visited an attorney, or other information. The Court held that if officers are to use such powerful technology, they must first obtain a search warrant from a neutral judge.

The crime Jones is accused of is serious and it can be frustrating sometimes to see valuable evidence excluded. However, the exclusionary rule is a valuable deterrent to ensure law enforcement respects all citizens’ right to be free from unreasonable searches. Had law enforcement taken the small, and fairly easy, step of obtaining a search warrant authorizing the Stingray’s use, the evidence would not have been excluded. This protection ensures police will not go around spoofing cell phones without appropriate judicial oversight.

If you have been charged with a crime, the evidence used against you may have been obtained in an unlawful manner. It is important to know the limitations of the exclusionary rule. The attorneys at Barsotti & Manley, PLLC, will advise you of your Fourth Amendment rights and ensure your case is carried out in a lawful manner. Call us today!

Law vs. Politics – The First Amendment Allows Hate Speech


Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that. - Dr. Martin Luther King Jr.

In the aftermath of the tragedy in Charlottesville, Virginia, many people may have questions regarding the interplay between hate speech and the First Amendment. Before diving into the speech protections offered by the First Amendment, it is important to understand the difference between law and politics, and how enforcing the rule of law provides greater political freedom.

The law should inherently reject politics. The judicial branch prides itself on leaving the social policy decisions to the elective branches of government and interpreting those policy decisions in a neutral way, ensuring all of our citizens are treated equally and fairly. Americans are, and should be treated, equal. The color of our skin should not determine the outcome of our legal case anymore than our political affiliations, and the judiciary’s role is to play the neutral arbitrator. It is on this basis that we can truly appreciate the value of the First Amendment, even if it sometimes magnifies darker natures of our political culture.

The First Amendment provides expansive protection to all types of speech, even what may be considered “hate speech.” Considering the context of recent events, the seminal Supreme Court decision Brandenburg v. Ohio provides a timely answer to whether or not the speech on display in Charlottesville was protected. In 1966, Clarence Brandenburg was convicted under an Ohio law for “’advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform’ and for voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” [1]

Brandenburg was a Ku Klux Klan leader who was filmed giving a speech filled with racist and anti-semitic language. The only other members in the crowd were also Klansmen and were filmed holding clubs, pistols, and other weaponry. The prosecutor in the case attempted to demonstrate that Brandenburg was advocating violence because he had initiated a call to arms, to march upon Washington D.C. on July 4th while members of the audience held weapons. The Supreme Court threw out his conviction in 1969 and established the litmus test for when violent speech crosses the line. “[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[2]

This permitted prohibition of speech puts cities and towns hoping to censor white supremacist protests in a complicated position. Cities are not allowed to presume that white supremacists’ speech will result in a call for “imminent lawless action” simply because the speech is abhorrent. People can say all sorts of evil and emotionally scarring words without instructing others to commit violence or break the law. The crux of the problem is that it is impossible to tell if speech will “incite” lawless action until after it has been spoken. Moreover, the speech itself must advocate the lawless action, not be so offensive that it produces lawless action as a result. For lighthearted example, praising Duke Basketball in Rupp Arena may incite a lawless backlash from the audience, but the speech itself does not advocate for that lawlessness. Similarly, governments cannot ban politically unpopular speech because they fear people offended by the speech will commit violence themselves.

In case you disagree with a Supreme Court case decided around the Civil Rights Era, consider a case decided this year. In Matal v. Tam, Simon Shiao Tam, the leader of an Asian rock band, had been bullied growing up because of his Asian descent. He was treated as a lesser person because of his heritage. However, he and his band mates had great musical talent. They agreed to name their band the “Slants” to claim back a word used to hurt them, and turn their bullies’ ignorance into artistic profit.[3] However, the United States Trademark and Patent Office denied Tam’s genuine request because the government considered it “derogatory.” Mr. Tam won his case by unanimous consent of the United States Supreme Court, a fete not accomplished often in these days of differing opinions. “We have said time and again that ‘the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.’”[4] “The law thus reflects the Government’s disapproval of a subset of messages it finds offensive. This is the essence of viewpoint discrimination.”[5] Thus the law and the First Amendment command the government to give these unpopular individuals the same rights to assemble and speak as it does others, because the law rejects political views.

But this does not mean the derogatory speech in Charlottesville must be given a pass. The brilliance of the First Amendment is that it gives all citizens the same equal voice and the same equal body to march. Like Mr. Tam, anyone can use their voice to turn hate thrown at them into their own empowerment. In fact, most social change that has occurred in this country’s history is because of those strong willed citizens that make great sacrifices for their beliefs in spite of bigotry.[6]

This brings us to the political side of the equation.  On Monday, the Moon will eclipse the Sun for a brief period, but it does not mean that the Sun is no longer present. Masking unpopular speech through censorship will not eradicate it, but cause those holding the censored beliefs to burn hotter. Show them that your star burns even brighter, and use your own rights to tell them their speech is unwelcome in a civilized society, but do so without inciting imminent lawless action. Politically unpopular speech cannot be legally suffocated, but it can be publicly drowned. It can be drowned under the deep, torrential voices of public opinion. In the heat of protest, it is better to prove a group is politically unpopular with numbers and volume than by legal documents and wooden gavels, or by clubs and pistols.


[1] Brandenburg v. Ohio, 395 U.S. 444, 44-45 (1969).

[2] Id. at 448.

[3] NPR Planet Money

[4] Slip page 22-23 (plurality portion III-C concurred by C. J. Roberts, J. Thomas, and J. Breyer)

[5] Slip page (concurring with III-A as portion of unanimous opinion J. Kennedy, J. Ginsberg, J. Sotomayor, and J. Kagan, Lower Slip . 2-3)

[6]Martin Luther King Jr.

Breaking Down Your Miranda Rights: Where Do They Come From, And What Do They Mean?

"[A defendant] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."  Miranda v. Arizona , 384 U.S. 436 (1966). 

 Ernesto Miranda - Arrested on March 13, 1963, and charged with Kidnapping & Rape following a confession obtained after a 2 hour interrogation. At trial he was convicted based upon his own confession. On appeal, the Supreme Court held that his Fifth Amendment Rights were violated. However, Miranda was once again convicted at his second trial and sentenced to serve 20-30 years in the Arizona State Penitentiary.

Ernesto Miranda - Arrested on March 13, 1963, and charged with Kidnapping & Rape following a confession obtained after a 2 hour interrogation. At trial he was convicted based upon his own confession. On appeal, the Supreme Court held that his Fifth Amendment Rights were violated. However, Miranda was once again convicted at his second trial and sentenced to serve 20-30 years in the Arizona State Penitentiary.

In 1966, the United States Supreme Court’s Miranda v. Arizona decision gave rise to what has come to be known as the Miranda Warning. Prior to this decision, the Due Process clause of the Constitution was the only limitation on law enforcement conduct when conducting investigatory interrogations of suspects. During the Pre-Miranda era, law enforcement only needed to demonstrate that a confession was obtained voluntarily "under the totality of the circumstances." That is to say, that any statements made to law enforcement by a suspect could be used against that person as evidence at trial so long as the reliability of the statements was not called into question due to coercive or otherwise offensive law enforcement practices.

Since Miranda, law enforcement is constitutionally required to read a suspect his Miranda Rights before questioning him in custody. Miranda essentially expanded the Fifth Amendment privilege against self-incrimination beyond the scope of the criminal trial. However, the protections that Miranda affords does not extend to situations in which a person voluntarily speaks with the police. Furthermore, Miranda warnings are not necessary when a suspect is not "in custody." In many situations, law enforcement may attempt to question a suspect without placing them "in custody" in order to avoid instructing the suspect of his rights.

In the event that law enforcement fails to read a suspect in custody his rights prior to questioning, any statement or confession made will be excluded from evidence and will not be admissible at trial. This does not necessarily mean that the prosecution will dismiss the indictment against the defendant because they may have sufficient evidence notwithstanding the defendant's statements to proceed.

1. You have the right to remain silent.

The Fifth Amendment: No person shall…  be compelled in any criminal case to be a witness against himself.

No person can be compelled to be a witness against him or herself in any criminal proceeding in which they have been named as a defendant. As mentioned above, Miranda expanded this Fifth Amendment right to custodial interrogations. As such, if a suspect is being questioned they have the right to be free from providing any information that my lead to incriminating evidence. However, in order for a person to take advantage of this privilege they must make it clear to investigators that they are invoking their Fifth Amendment rights.

An adequate invocation of the right to remain silent occurs when the suspect says, unambiguously, that he wishes to remain silent, or that he does not wish to talk with law enforcement. A suspect should state the following in order to clearly invoke the privilege: “I invoke my Fifth Amendment right to remain silent, and I will not answer any more questions without my attorney present.”

2. Anything you say can and will be used against you in the court of law.

The Rules of Evidence govern the admissibility of statements which may be used as evidence during a criminal trial. As a general rule, an out-of-court statement made by others is considered hearsay and is not admissible as evidence. But under the Kentucky Rules of Evidence, a statement is not considered hearsay when it is offered as evidence against a party opponent (i.e. the Defendant). KRE 801A(b)(1). This exception to the Hearsay rule allows investigators to testify about statements that the Defendant made to them during the course of the investigation.

Rarely do a suspect’s own words to investigators benefit them at trial. Many law enforcement interrogation tactics are deliberately designed to elicit what may appear to be incriminating information. Although anything you say can and will be used against you in the court of law, your silence may not; the prosecution is prohibited from using the fact that you chose not to speak with law enforcement as evidence of your guilt at trial.

3. You have a right to an attorney.  

The Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to… have the assistance of counsel for his defense.

The Sixth Amendment, like the Fifth, is another integral part of the Bill of Rights that affords protections to those facing criminal prosecution. Both the Sixth Amendment and Section 11 of the Kentucky Constitution guarantee the accused a right to an attorney when charged with a crime.

The right to counsel attaches when a person has been formally charged with a crime. At arraignment, the criminal defendant is advised of this right. Once the right is vested, law enforcement is prohibited from engaging in behavior that is deliberately designed to elicit incriminating information from the defendant without his or her attorney present.

4. If you cannot afford an attorney one will be provided for you.

The Commonwealth is required to make counsel available to indigent defendants at all critical stages of the criminal prosecution. If the defendant cannot afford to hire a private attorney, the court will appoint the Department of Public Advocacy to represent them. The defendant must fill out the AOC-350 Financial Statement, Affidavit of Indigency, and Request for Counsel prior to the appointment of the DPA.

While the Miranda Rights provide the accused with certain basic protections, like all rights, they can be waived. A waiver can be as subtle as continuing to discuss your case with law enforcement without specifically invoking your rights, and therefore, it is normally in your best interest to specifically invoke your Miranda Rights instead of continuing to answer law enforcement questioning. Before waiving your rights contact our office to consult with our attorneys about your case. 

How Much Can They Watch You? United States Supreme Court Takes Up Landmark Cell-Phone Privacy Case.

On Monday, the United States Supreme Court agreed to hear the case of Carpenter v. United States. Carpenter was convicted on several counts of armed robbery in violation of the Hobbs Act and sentenced to over 100 years in prison. The case centers on what expectations of privacy we as citizens have in information gathered by cell-phone service providers.

A key government witness in the case testified that he obtained cell-site service data which was able to reveal Carpenter’s location as he made and received cell-phone calls. The particular data in issue is less precise than GPS location data, which can approximate an individual's geolocation within 50 meters. Cell-site service data reveals which cell towers were used to connect an individual’s phone calls, and which direction the data was being transmitted. The accuracy of the data can reveal an individual’s location to within one-half to two miles from the particular cell tower. For example, when Carpenter placed a phone call to his accomplices, the stored data revealed he was within one-half to two miles southwest of a particular cell tower, which placed him in the proximity of a Radio Shack store he and his accomplices robbed.

Carpenter moved to suppress the cell-site data because FBI agents obtained the information without a search warrant. The FBI instead relied on the Stored Communications Act, which allows government agents to retrieve stored business records relating to telephone communications upon a showing of “reasonable grounds” and that the records are “relevant and material” to a criminal investigation. This standard is much lower than the “probable cause” required to obtain a search warrant under the Fourth Amendment.

Carpenter’s motion to suppress was denied and the Sixth Circuit Court of Appeals affirmed the denial. Relying heavily on the landmark Smith v. Maryland case, a Supreme Court decision rendered in 1979, the Sixth Circuit held that Carpenter has no expectation of privacy in data stored by third-party businesses used to facilitate phone communications. In Smith, the government used a pen-register device which monitored the phone numbers Smith dialed. The Supreme Court distinguished the stored phone numbers, which did not reveal the content of Smith’s communications, from a wiretap, which would reveal the content of Smith’s conversations. Essentially, citizens have no expectation of privacy in the names and addresses appearing on the front of a mailed envelope because the postal service needs this information to send the letter. Similarly, an individual should have no expectation of privacy in the phone numbers he dials because the phone company needs this information to place the call.

The Smith decision has been the default rule for decades, and has been relied on in countless court opinions to hold search warrants are unnecessary when the information sought is metadata stored by third-parties. The logic in Smith is essentially this: since the individual gives this information to a third-party, he should not object to the same information being obtained by the government. However, many critics believe the Smith holding has outlived its usefulness. While it is true that very little information can be gleaned from an address or a phone number, in the modern digital age, metadata can reveal more about a person than his own conversations can. For example, Target can detect a young woman is pregnant based on the items she purchases before she ever communicates to a third-party she is pregnant. In Carpenter, the government agents did not limit their request for location data to the days of the robberies. They collected almost 13,000 data points over a four month period. This information could reveal the days and locations Carpenter went to church, visited the doctor, visited an attorney, or any other mundane errands.

In a concurring opinion, Circuit Judge Stanch invited the Supreme Court to reevaluate the Smith holding. Bound by precedent, Circuit Judge Stanch agreed that Smith dictates the outcome of the Sixth Circuit’s opinion, but Circuit Judge Stanch believes Smith is no longer relevant in today’s digital age. Indeed, it is a legal fiction that citizens can voluntarily choose to unplug from the digital economy. As information storage grows, and algorithms become more complex, metadata can reveal much more than where our letters are going. It can monitor our location, monitor our health, and even monitor our ideas. A search warrant obtained pursuant to the Fourth Amendment requires law enforcement to state with particularity the location to be searched and the items to be seized. A request for almost 13,000 data points revealing geolocation is much broader than requesting to search the trunk of a car. If law enforcement was required to obtain a warrant, a neutral judge may have limited such a request to the days of the robberies instead of all data stored during a four month period.

Many legal observers believe that the Supreme Court will limit Smith’s usefulness in the digital age. In fact, the Sixth Circuit’s opinion is well reasoned and completely conforms to the Smith holding. Considering the thousands of petitions to the Supreme Court filed every year, it is unlikely the justices would have agreed to hear such a black-and-white case unless the precedential foundation is crumbling. In recent opinions the Supreme Court has reaffirmed Fourth Amendment protections in the digital age. In United States v. Jones, a 2012 opinion, the justices held that law enforcement cannot place a GPS device on a suspect’s car and track him for extended periods without a warrant. Limiting law enforcement’s ability to track an individual using third-party records would be a logical next step.

Although annoying, speed bumps do not prevent us from reaching our destination; they serve to keep innocent bystanders safe. Reinforcing the warrant requirement in the digital age would not hamper law enforcement’s ability to combat crime, but merely places a constitutional speed bump in their path, and keeps innocent citizens safe from unwarranted government intrusion.

This Blows! What Happens if You Refuse to Take a Breathalyzer Test?

Nothing can ruin your Friday night quicker than seeing blue lights in your rearview mirror on your way home. For your safety, as well as for the safety of other drivers on the road, you should never drive home if you are under the influence of alcohol. However, there may be some evenings in which you only consumed one or two drinks and you are not under the influence.

In Kentucky, the law presumes you are under the influence of alcohol if you have a blood-alcohol concentration (BAC) of 0.08 or higher. The average sized adult male can process one unit of alcohol every hour. Each unit of alcohol (one 12 ounce beer, one 5 ounce glass of wine, or 1.5 ounces of liquor) will raise the BAC of an average sized adult male by 0.02. This is not always the case, as various factors can affect any particular person’s BAC. For example, drinking on an empty stomach can raise your BAC much quicker. Women lack an enzyme that breaks alcohol down more quickly and are thus more susceptible to alcohol. The law presumes you are under the influence of alcohol when your BAC is 0.08 or higher because this is the stage in which many people experience a diminished ability to control their locomotive systems.

If you are pulled over on suspicion of driving under the influence, the police officer will ask you to perform various field sobriety tests. These can change depending on the officer administering the tests, but typical tests include: walking heel-to-toe in a straight line for a specified number of steps; raising one foot above the ground until the officer tells you to stop; reciting the alphabet from one random letter to another random letter without saying the entire alphabet; and many more. If the officer believes you are under the influence, he will ask you to blow into his Personal Breathalyzer Test (PBT). An officer’s PBT results are inadmissible in court because they are not scientifically accurate, but they can detect the presence of alcohol and the results can give the officer probable cause to arrest you. 

There are scientifically calibrated breathalyzer machines in every county jail. The results of these machines are admissible in court, unlike the officer’s PBT. However, the General Assembly has given the accused individual a statutory right to refuse the test. The officer is required to read a specific consent form prior to administering the test. This consent form informs the accused that they may submit or refuse to take the test, and that they have the right to consult this decision with an attorney for a brief period of time. An attorney will not be provided for you, but if you have contact information for an attorney you will be allowed to call them. Additionally, the officer must observe you for 20 minutes before administering the test to ensure you have not brought alcohol into your mouth from your stomach by belching or vomiting. Refusing to take the test will result in your license being immediately suspended when you are arraigned, double the minimum jail sentence if you are convicted, and the prosecutor can use your refusal as evidence of your intoxication at trial. Additionally, and perhaps the most severe penalty, is that your license could be suspended even if you are acquitted by a jury of your peers.

Refusing to take the test should be carefully considered in each case. On the one hand, refusing to take the test denies the prosecutor any scientific evidence of your intoxication. Considering that a prosecutor must prove you were intoxicated “beyond a reasonable doubt,” the denial of scientific evidence substantially weakens the Commonwealth’s case. However, you’ll risk a higher jail sentence if you decide later to plead guilty or the prosecutor is able to convict you with other evidence.

Kentucky has cracked down on drunken driving in recent years and a conviction for DUI can carry consequences for as many as 10 years. The best way to avoid these consequences is to not consume alcohol and drive. However, you should always be aware of your constitutional and statutory rights and be able to make an educated decision if you are accused of breaking the law. You may wish to put our contact information in your phone in the event you need an attorney’s advice before submitting to the test.

The attorneys at Barsotti & Manley, PLLC, are experience criminal defense attorneys and will fight for your rights. You can call us anytime, at (859) 429-3444.

Secret Spices in SB 151 - Is it Finger Lickin' Good?

In 1952, a man from Corbin, Kentucky, sold a license to use his secret fried chicken recipe to a man in Salt Lake City, Utah. This transaction was the first in a series of events that saw a new Kentucky company become an international food empire. Colonel Harlan Sanders may not have invented the franchising business model, but his legacy demonstrates the economic opportunities available to a strong brand and a quality product.

It is interesting that the headquarters of one of the largest franchising entities is located in a state that just quietly passed legislation dramatically shifting the legal liabilities of corporate franchisors. Among the 100+ bills passed by the General Assembly this session, SB 151 is a game changer that few are talking about. Franchisors are no longer responsible for various violations of Kentucky employment laws committed by their franchisees, including violations of Kentucky's minimum wage laws, worker's compensation claims, unemployment insurance claims, violations of Kentucky workplace safety statutes, or discriminatory hiring practices. The relevant text is short enough to be copied in its entirety here:

Notwithstanding any voluntary agreement entered into between the United States Department of Labor and a franchisee, neither a franchisee nor a franchisee's employee shall be deemed to be an employee of the franchisor for any purpose under this chapter…

Not only are franchisors immune from the statutory violations committed by their franchisees, but this legislation may impact a franchisor's liability to customers injured by employees of franchisees. Ordinarily, employers can be held liable for the wrongful acts of their employees while the employee is acting within the scope of his or her employment. The legal doctrine is called “respondeat superior,” or literally, “let the master answer.” However, franchises are different business models than other corporate forms. A franchisor grants a license to a franchisee to use the franchisor’s trademarks and products in exchange for a fee, and the franchisee is considered an independent owner of the business at the licensed location. This makes respondeat superior a difficult question because it is unclear just who the master is. 

When a person is injured by the negligence of an employee, that person is allowed to name the employer as a defendant and sue for damages. Typically the employer is in a better financial situation to pay a judgment than an employee working for wages. The bigger the employer is, the deeper the pockets go to pay for damages. In order to hold a franchisor liable for the negligence of a franchisee’s employees, Kentucky has adopted the "control or right of control" test. In Papa Johns Intern., Inc. v. McCoy, the Kentucky Supreme Court held that if a franchisor exerted enough control over the day-to-day operations of a franchisee, and the activity being controlled lead to the plaintiff's injury, then the corporate franchisor could be liable for damages. 

Now that franchisors are immune from statutory employment violations of their franchisees, Kentucky has enacted policy explicitly designed to distinguish franchisors from franchisees. One could argue that as a matter of public policy, the "control or right of control test" has become obsolete. If franchisors are no longer responsible for injuries to employees of a franchisee under the workman's compensation statute, why should they be responsible for injuries to customers of a franchisee? For example, if a pot of scalding hot coffee is spilled, does it make sense for the franchisor to be liable when a customer is burned, but not the employee? In most cases, the injury can probably be compensated with the resources of the franchisee and its relevant insurance policy.

Overall, the new statutory regime may provide a good economic benefit to the Commonwealth. Now that corporate franchisors have substantially limited their liability in various areas of employment law, the corporate franchisor may grant more licenses than they otherwise would have. More licenses create new businesses and new employment opportunities for Kentuckians. More licenses can also lead to a chicken in every pot, and that is Finger Lickin' Good.

Are you interested in forming a business? The attorneys at Barsotti & Manley, PLLC, are dedicated to helping our clients choose the proper business form, and educate them on the requirements of keeping their business in good standing. Contact us today and let us help you get your business up and running.

Kentucky Medical Review Panels Explained

Last week the General Assembly passed Senate Bill 4, a measure that will greatly change the medical malpractice landscape in Kentucky, and Governor Matt Bevin is expected to sign it into law soon. The bill creates new entities known as “medical review panels” (hereinafter “MRPs”). Their purpose is to review any proposed medical malpractice claim, and render an opinion as to whether malpractice occurred, before a plaintiff brings their claim to a Kentucky court.

Supporters claim the legislation will weed out frivolous medical malpractice cases and help lower malpractice insurance rates for healthcare providers. Critics claim the legislation is an unconstitutional limitation on a citizen’s right to a jury trial and might run afoul of the “jural rights doctrine.” Both sides wholly expect the legislation will be challenged as unconstitutional, but they disagree as to the potential outcome of that challenge. This post is not intended to support or criticize the new law as a matter of policy, but to explain in great detail the new steps and challenges that must be considered in pursuing a medical malpractice claim in Kentucky.

Previously, a potential plaintiff in a medical malpractice claim only needed to file a complaint in a court of competent jurisdiction. Now a potential plaintiff must first bring a “proposed complaint” to the Cabinet of Health and Human services and pay a fee that will be determined by the Cabinet. Within ten days of receiving the proposed complaint, the Cabinet must serve a copy of the proposed complaint on all healthcare providers named as defendants. “Healthcare providers” is an expansively defined term, which includes hospitals, nursing homes, ambulatory services, abortion clinics, physicians, dietitians and nutritionists, paramedics and emergency service providers, radiologists, chiropractors, dentists, registered nurses, pharmacists, psychologists, optometrists, physical therapists, medical laboratories, speech pathologists, and social workers.

After the defendants receive notice, all of the parties may agree to waive the MRP requirement so long as the agreement is in writing. If at least one party to the action does not agree to waive the MRP, then the process moves forward. The MRP is led by an attorney chairperson. The chairperson does not have the ability to vote, but is in charge of managing the MRP. After all defendants are served with the proposed complaint, the parties are offered 20 days to reach an agreement as to who will serve as chairperson. If the parties are unable to agree within 20 days, a party can move the Cabinet to draw five names at random from a list of participating attorneys practicing in the Supreme Court district where the alleged malpractice occurred. The party making this request must pay a $25 fee. Beginning with the plaintiff, each party alternates striking an attorney from the list until only one name remains. The remaining attorney becomes the chairperson of the MRP unless that person objects to serving within 15 days. The selected chairperson must demonstrate good cause for why they are unable to serve before being released from service.

Once the chairperson is finally selected, they must craft two lists with three “natural person healthcare providers” (hereinafter “panelists”) on each list for a total of six potential panelists. The chairperson must take reasonable care to select potential panelists that are licensed in Kentucky and practice in the same field of medicine as the defendants if possible. The parties may suggest names of potential panelists, but the chairperson is not required to use those suggestions. The chairperson must send both lists to all the parties within five days of the chairperson’s appointment. The plaintiff will then strike one name from each list and the defendant will strike one name from each list. In the event there are multiple plaintiffs or multiple defendants, the side with multiple parties must exercise their strikes collectively. The two remaining names will become panelists and those two panelists must agree on a third panelist to serve. Any panelist that is selected may be excused for good cause or if there is a conflict of interest.

At the end of the selection process, each party has ten days to object to the composition of the panel. The chairperson will sustain or overrule the objection. Once the panel is finalized, the plaintiff has 60 days to submit all nonprivileged evidence. After the plaintiff has concluded submitting evidence, the defendant has 45 days to submit all nonprivileged evidence. No party may take the deposition of a witness without prior authorization from the chairperson, but the chairperson shall not unreasonably deny a party's request to take a deposition. At any point after it is formed, the MRP has the authority to subpoena records, call hearings, and consult with other medical professionals. If the MRP engages in any evidence gathering itself, the parties have a right to review this evidence. At all times during the evidence gathering stage the Circuit Court that would ordinarily have jurisdiction over the matter has limited jurisdiction to compel or limit the evidence submitted. For example, the Circuit Court could quash a subpoena duces tecum if the request is overly broad, or could compel the disclosure of documents being withheld.

After all the evidence has been submitted to the MRP it must render one of three opinions: that the defendant failed to act according to the applicable standard of care and that failure was a substantial cause of plaintiff’s injury; that the defendant failed to act according to the applicable standard of care but that failure was NOT a substantial cause of plaintiff’s injury; or the defendant did act according to the applicable standard of care. The chairperson and panelists on the MRP are entitled to fees for their work which should not exceed a total of $3,050, excluding travel expenses. Whichever party obtains a favorable ruling is responsible for paying these fees. No matter the outcome of the opinion, the plaintiff still has a right to pursue a medical malpractice claim in a court of competent jurisdiction after the final MRP opinion is rendered.

The chairperson has the authority to extend any of the above time periods for submission upon a motion seeking an extension for good cause. However, regardless of deadlines and all other time limitations, a final opinion must be rendered within nine months of the filing of the proposed complaint or a plaintiff may proceed with filing a civil complaint in a court of competent jurisdiction. If the plaintiff chooses to file a civil complaint, either party may move the trial court to admit the MRP opinion as evidence in the same manner a party would move to admit the testimony of an expert witness. Although media reports surrounding the passage of SB 4 suggested the trial court has discretion in admitting the opinion, those reports are inaccurate. “Upon motion, the trial court shall admit the panel’s opinion into evidence as an expert opinion, subject to cross-examination, upon a written finding that the evidence would assist the trier of fact and otherwise comply with the Kentucky Rules of Evidence.”

It is highly doubtful that any trial judge will determine the opinion will not aid the trier of fact, considering it is the expert opinion of three experts, and the MRP opinion should qualify under Daubert. Even though the opinion is “subject to cross-examination,” a written opinion cannot answer questions in open court. As a point of practice, the party seeking to admit the opinion may wish to subpoena a panelist and make them available to testify in order to avoid a hearsay objection, unless the report is considered a hearsay exception under KRE 803(8). The party which subpoenas a panelist is responsible for compensating the panelist for time spent testifying. There are other points of practice that may become an issue. For example, how does a plaintiff amend a proposed complaint after new evidence comes to light? Can a plaintiff add new defendants under the proposed complaint, and if so, what rights do the new defendants have in the panel selection process after the panel has been selected? Does the nine month clock restart if the proposed complaint is amended? Can a defendant strike the civil complaint if it differs from the proposed complaint?

In conclusion, the medical malpractice practice area is primed for a tectonic shift in Kentucky. It is unclear what types of constitutional challenges will be raised (although a challenge based on the jural rights doctrine is inevitable). It is also unclear if the panels will be available until a constitutional challenge is settled, and what effect the introduction of these panels will have on malpractice insurance rates in Kentucky.

The attorneys at Barsotti & Manley, PLLC, strive to inform our fellow Kentuckians of major shifts in Kentucky law. We serve Anderson, Boyle, Casey, Jessamine, Lincoln, Mercer, Washington, and Woodford Counties; including the cities of Danville, Harrodsburg, Lawrenceburg, Liberty, Nicholasville, Springfield, Stanford, and Versailles.

Worried About Future Medical Bills? Consider an Irrevocable Trust

America is currently experiencing multiple demographic shifts, one of which is based on age. According to the Population Reference Bureau, the number of Americans over 65 will more than double from 46 million today to 98 million by 2060. The Baby Boomer Generation alone may fuel a 75% increase in the number of Americans requiring nursing home care, from its current 1.3 million needing care, to 2.3 million by 2030. As demand increases, current resources will be spread thinner. Without an adequate increase in supply of nursing home care, prices will rise as well. Additional challenges include the future solvency of the Medicare* system. It is critical to develop a comprehensive Estate Plan now more than ever, especially as policymakers struggle to allocate resources across a larger population.

One strategy to protect assets is an irrevocable trust. Irrevocable trusts differ from revocable trusts because they cannot be amended or destroyed until the trust term expires. They are, as the name suggests, irrevocable. The person forming any type of trust is known as the “Settlor” or “Grantor.” The Settlor will pick a trustworthy individual, called a “Trustee,” to take possession and manage the property. The Trustee then distributes the property according to the Settlor’s wishes to persons picked by the Settlor. They are called “Beneficiaries.”

The disadvantage of an irrevocable trust is that any property placed in the trust is no longer owned by the Settlor and the Settlor can never outright own that property again. This disadvantage is also an advantage because if the Settlor does not own the property, then creditors cannot take the property to satisfy debts incurred after the formation of the trust. You cannot transfer property to an irrevocable trust to avoid debts you already have, but if you anticipate future debts, such as nursing home care or medical bills, placing your major assets in an irrevocable trust early can ensure your beneficiaries receive them instead of your creditors.

A common example is for the Settlor to deed the primary residence to the irrevocable trust while maintaining a life estate in the property. This allows the Settlor to remain living in the house until it is no longer feasible. If the Settlor incurs large medical bills or nursing home bills, the primary residence cannot be used to satisfy those debts. Another advantage to this process is that it decreases the Settlor’s net worth on paper, and may make the Settlor eligible for Medicaid whereas before the Settlor didn't qualify for Medicaid. However, the federal government is very aware of this tactic and imposes a 5 year “look back” window to penalize people who would not be eligible for Medicaid if they continued to own the property. As long as the property is placed in the irrevocable trust more than 5 years before an application for Medicaid is filed, there will be no penalty. This is another reason why it's important to create a comprehensive Estate Plan sooner rather than later.

There are additional advantages and disadvantages to forming an irrevocable trust. Because an irrevocable trust cannot be undone, it is critical that you consult with an attorney and financial adviser before transferring property to an irrevocable trust. You may wish to form a revocable trust first to get used to the mechanics while still being able to re-obtain your property. The attorneys at Barsotti & Manley, PLLC, can help you decide which Estate Plan is right for you. Call us now at (859) 429-3444.

*Medicare is split into 4 funds. Medicare Part A is the only fund in current risk of insolvency. However, this is the particular fund used to pay for nursing home care and acute hospital visitation. Medicare Part A is simply not funded adequately to deliver all the benefits currently offered beyond 2028. While defenders claim it is “not going broke,” that analysis depends on the belief policymakers will agree to decrease benefits or raise taxes, an assumption that is not safe to make in the current political environment. So for the purposes of this article, the future solvency of Medicare is in serious question.


Tips to Protect Your Identity This Tax Season

The Spring-like weather this week could convince someone that it is April. Bears might not be coming out of hibernation for a few more weeks, but another creature is: tax scammers - and they can be just as scary. Identity theft is the crime of choice these days. Recent reports state that street gangs are starting to shift to white collar crime. Tax season is essentially harvest time for these criminals. Below are some tips on keeping your identity, and your refund, safe.

The IRS Only Communicates by U.S. Mail:

A common scam is for criminals to pose as IRS agents over the phone. They tell their victims they owe back taxes that must be paid immediately. Typically they use aggressive tones and threaten arrest or civil action if the victim doesn't immediately wire funds or pay using a prepaid debit card. Unfortunately, this tactic has proven effective against the elderly and immigrants. If you receive a phone call or text message from someone claiming to be from the IRS, just hang up. The IRS always makes initial contact with a citizen through the U.S. mail and never threatens immediate arrest or civil action.

Phishing Attempts:

Similar to phone calls, email scams have seen explosive growth in recent years. The IRS claims phishing attempts soared 400% in the 2016 tax season. The emails may contain demands for back taxes while displaying official IRS logos. Again, the IRS will only make initial contact by mail. However, the phishing isn't limited to IRS impersonation. Intuit, the maker of Turbo Tax, has noticed a sharp spike in sophisticated phishing attempts used to trick users.

The scam works by convincing the user to log-in to a spoof website and then enter all of their personal information. The spoof websites are almost indistinguishable from the legitimate Turbo Tax website. To guard against this attack, avoiding logging into a website via links in your email. After receiving an email claiming to be from Turbo Tax, you should navigate to the Turbo Tax official website through trusted means, such as a Google search or manually typing in the website. 

Mailbox Fraud:

Some criminals are just as technologically inept as the rest of us. According to CNET, 8% of personal identification theft comes from criminals stealing W-2s out of mailboxes. By now, you should have already received your W-2 for 2016 wages because employers are required to mail W-2s by January 31. If you have not received yours, find out where it is. Either your employer has failed to comply or it could have been taken from your mailbox.

Early Birds:

One of the easiest ways to secure your refund is to claim it before the criminal can. The IRS stated that it prevented $22.5 billion in fraud in 2014, but $3.8 billion in fraud still occurred. Scammers will take your personal information and file a tax return before you in order to claim your refund. The easiest way to prevent this is by filing before they do and claiming your refund first.

All's Fair in Love and War? Five Horrible Divorce Stories

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If your significant other forgot Valentine's Day, don't get too angry. Kentucky is a “no-fault” divorce state which means you can't use their forgetfulness against them in an attempt to secure more of the marital property. In fact, the best procedure if you feel your marriage is irretrievably broken is to come to an amicable agreement as to how to split the assets. Of course, a lot of times that is easier said than done. There are countless stories of people taking the divorce process too far, and a lot of times the only real winner is the attorney. For your Valentine's Day pleasure, below are 5 stories of bitter divorces that will make you happy that the only thing your spouse did was forget the flowers or candy.

The Old-School Tweeter:

A woman in China began to get suspicious of her husband when their pet bird, a Mynah bird, started saying unusual phrases. She heard the bird saying things like “I love you,” and “Divorce,” and “Be patient.” The bird would use these phrases more often when the couple’s phone rang, causing the woman to suspect her husband was having an affair. She even went as far as attempting to introduce the bird’s testimony in court. As a disclaimer, birds are not competent to testify in Kentucky, but your direct message tweets might be admissible in some proceedings.

The Home Wrecker (Literally):

A Cambodian man decided to call it quits with his wife of 40 years. However, instead of taking the matter to the Cambodian courts he decided to just take his half of the marital property. He and several friends packed his property into one side of the marital home and the non-attorney-construction crew divided the house by sawing it in half. Of course, because there was no legal dissolution of the marriage, the couple still co-own all the marital property. Keep in mind that in Kentucky, you and your spouse will continue to co-own property as well as debts until a formal dissolution decree is entered. If you are worried your soon-to-be ex will squander the marital property you should not delay in filing the necessary paperwork.

The Mama's Boy:

The honeymoon period for an Italian couple ended during the honeymoon when the new groom brought his mother along. The 39 year-old salesman secretly booked a room for his mother at the 5 Star Parisian retreat where the newlyweds were staying. The new bride had already had enough of her “suffocating mother-in-law” because she lived next door to their home in Italy. Her reason for filing the divorce paper so soon? “She wants a divorce because of her husband’s excessive emotional attachment to his mother.” That could probably cause an irretrievably broken marriage in Kentucky too. But keep in mind that grandparents have a right to grandchildren visitation in Kentucky, so you might not be able to get rid of your mother-in-law that easily.

The Taker-Backer:

Divorces can be upsetting. Sometimes the relationship gets so toxic a person might rather their ex just end up dead - or at least prevent their spouse from filtering out the toxicity. A doctor in New York thought he had found his perfect match when his wife of 11 years became sick and needed a kidney transplant. After failing to match her father and brother, it turned out that her soulmate also turned out to be her kidney-mate. He donated the organ in 2001, but maybe her new lease on life convinced her to seek greener pastures. She filed for divorce just 4 years later. The doctor then demanded his kidney back, or at least $1.5 million for it. A British woman did the same thing after finding out her sick husband wasn't too sick to carry on an affair. Kidneys, as well as all other organs, do not have a fair market value in Kentucky, but a broken heart might get pretty costly.

The Biological Warfarer:

Paying alimony can stink, sometimes literally. A New York man faced criminal charges in Arizona when he sent something extra with his alimony checks. He allegedly covered them in his feces. His former spouse moved to Arizona to escape his harassment but he continued to send her vulgar notes, as well as a picture of him holding a serrated knife. He was charged with sending hazardous materials through the U.S. mail and was released pending trial after posting a $35,000 bond. If you feel compelled to send fecal matter to your ex to display your true feelings, we would suggest you don't and that you stick with Emojis. Stay away from the gun Emojis though - that might be considered a threat.


Limited Liability Companies: Formation and Member Benefits

Selecting an appropriate business entity is among the first of many important decisions that an entrepreneur must make. Although each new venture is different, a limited liability company (“LLC”) provides significant flexibility for the owners and operators of the organization and also limits the liability of individuals involved in the business.


An LLC is formed by filing articles of organization with the Secretary of State. In order to accomplish this, the LLC must have at least one member. The articles of organization must contain the following information:

  1. Name - the LLC must have a unique name and must contain the words "limited liability company," "limited company" or the "LLC" abbreviation. Name availability can be checked by searching the filings maintained by the Office of the Secretary of State website, or by calling (502) 564-3490.

  2. Registered Office - the LLC must list a registered office address for the business entity. This address must be a valid street address in Kentucky. A PO Box number is insufficient.

  3. Registered Agent - the LLC must name a registered agent. The individual or business named as the registered agent consents to receive service of process in the event that the business is named as a party in a legal action.

In addition to the information listed above, an organizer must also pay a filing fee to the Office of the Secretary of State. Once the entity is formed, the business must file an annual report with the Secretary of State between January 1 and June 30 of the year following the calendar year in which the company was formed. A statement of change must also be filed in the event of any changes to the registered agent or registered office occur.


Once an LLC is formed, the business becomes a legal entity separate and distinct from its members. The LLC may own property, enter into contractual agreements, take on debt, and otherwise do all things necessary or convenient to carry out its business or affairs. Members of the LLC are indemnified for such debts, obligations, and other liabilities incurred in the course of their activities while acting on behalf of the LLC. Essentially, members and managers of the business are not personally liable for the LLC’s obligations. This means that personal assets individually owned by the member or manager are safe from the LLC’s creditors.

It is important to understand that the limited liability afforded by the LLC entity is not absolute. Generally speaking, professionals are still held personally liable for their own malpractice, and employees may be held personally liable if they incur liability outside of the scope of their employment. Additionally, a court may pierce the corporate veil of the LLC and disregard the limited liability if, for example, members undercapitalized the venture in light of a substantial risk due to the nature of the business.


Management of the LLC is presumed to be the responsibility of its members. However, members may execute an operating agreement to outline the desired management structure of the business. Unless otherwise provided for by the operating agreement, a majority vote is generally required to approve most decisions. The ability to tailor an operating agreement specifically to the needs of the individual members gives the LLC a great deal of flexibility. This is often a very desirable feature for entrepreneurs.

LLCs may be member-managed or manager-managed. In a member-managed LLC, the individual members of the business have the authority to act for the benefit of the business. Members owe a duty of loyalty and duty of care when carrying out business on behalf of the LLC.

In contrast, in a manager-managed LLC, management and operation of business dealings are carried out by persons other than the members. This structure may be desired if members wish to remain passive investors in the business, or if certain members are not particularly skilled in management. But, a member may still be involved in the management if so provided for by the operating agreement.


LLCs have become the preferred business formation for many entrepreneurs because of their flexibility regarding taxes. If the LLC only has one member, it is taxed the same way as a sole proprietorship. If there are multiple members the LLC can elect to be taxed like a partnership or a corporation. Partnerships and sole proprietorships, and LLCs that are taxed the same way, are known as "pass through entities," meaning the entity itself does not pay tax. Corporations are taxed twice, once at the entity level and once at the shareholder level when profits are passed to the shareholders in the form of dividends. LLCs primary advantage is its ability to offer limited liability to its members, like a corporation, while also enjoying favorable tax treatment, like a partnership.

The attorneys at Barsotti & Manley are prepared to advise you through the formation of your new business and are willing to answer additional questions and discuss the legal implications of your decisions in more detail. Contact our office today at (859) 429-3444.

It Takes a Village to Raise a Child: Know Your Rights as a De Facto Custodian

The opioid crisis in Kentucky has had a devastating effect on families. A study has found that more than 1 in 10 Kentuckians knows someone who has experienced problems due to heroin. In 2013, 20,005 children were victims of abuse or neglect, representing 19.7 cases for every 1,000 children. This is an increase of 14.8% from 2012, in part due to the epidemic. As a result, more family members are taking care of children that are not their own sons and daughters. This entry is designed to educate those individuals about their rights in relation to those children.

Individuals providing for others’ children may be considered de facto custodians. If you have been the primary caretaker of a child under the age of three for at least six months, or you have been the primary caretaker of a child three years or older for at least one year, you can become a de facto custodian. It does not matter if you are unrelated to the child, only that you were the primary caregiver. However, you cannot be considered a de facto custodian until a court has found that you've met these elements by clear and convincing evidence.

Once a court determines that you are a de facto custodian, you are entitled to the same custody rights as the child's biological parents. For example, perhaps one of the child’s biological parents is missing and the other is incarcerated. One morning the missing parent suddenly appears and wants to take the child with them, what happens? Courts always consider “the best interest of the child,” with a strong presumption that biological parents should maintain custody. A de facto custodian is entitled to the same presumptions as a biological parent when considering what is in the best interest of the child. Therefore, a de facto custodian’s claim for custody is stronger than a nonparent biological relative's claim.

De facto custodians are not the same as adoptive parents. Adoption is the process by which the biological parents’ parental rights are terminated and the adopted child is issued a new birth certificate. De facto custodians may have to share custody with the biological parents, whereas adopted parents do not. For all legal matters, the courts will view an adopted child in the same light as a biological child for matters such as inheritance. A determination that you are a de facto custodian does not grant the child inheritance rights in the event of your passing while caring for the child.

If you are caring for a child and you wish to protect your rights, please contact an attorney. The attorneys at Barsotti & Manley, PLLC, are experienced in family law matters, and we can help you take the necessary steps to form and protect your family. Call us at (859) 429-3444.


How to Expunge a Felony or Misdemeanor in Kentucky

The Kentucky General Assembly has been focusing on criminal justice reform for several years. “Tough on crime” rhetoric has started to give way to being “smart on crime.” Among the reforms was HB 40, enacted during the 2016 General Assembly - commonly referred to as “felony expungement.” Understanding the scarlet letter of a felony conviction follows people long after they've repaid their debts to society, the General Assembly is allowing people an opportunity to expunge certain felony convictions.

While felony expungement is new in Kentucky, misdemeanor expungement has been around for some time. Previously, an individual could only expunge one misdemeanor in their lifetime, and they could not expunge their misdemeanor until after five years of good behavior. Now an individual can expunge multiple misdemeanors, but they can only be expunged once the applicable “enhancement period” has expired. Enhancement periods are different for different crimes. For example, Driving Under the Influence can now be enhanced for ten years, but that may not withstand constitutional scrutiny.

Only certain felonies and misdemeanors can be expunged. For a comprehensive list, click here. If your offense qualifies, you must apply for a Certificate of Expungement Eligibility, which is $40 and can be accessed here. A Certificate of Expungement Eligibility is only valid for 30 days, and a Petition for Expungement will be rejected without a valid certificate. The Administrative Office of the Courts has provided a sample Petition for Expungement for misdemeanors and for felonies. It currently costs $100 to expunge misdemeanors and $500 to expunge felonies. These costs are court costs and are in addition to any fee an attorney may charge.

Expungements are not automatic. Prosecutors are permitted to oppose expungements and a court is not required to expunge your record if a prosecutor objects. It is for this reason that you should retain an attorney to defend your interests, instead of solely relying on this or any other resource. This article is meant to provide access to helpful links for public research, and should not be considered legal advice. The attorneys at Barsotti & Manley, PLLC, can represent you during your expungement for a nominal fee, in addition to the costs mentioned above.


REAL ID - Real Consequences

During March Madness, I admit that traveling to Indiana or Tennessee feels like traveling to a foreign country. But pretty soon, you may actually need a United States passport to fly to these states. In 2005, Congress passed “The REAL ID Act” which requires states to meet certain identification requirements when issuing state driver's licenses. The states have until January 2018 to comply before their current state issued ID’s will no longer serve as valid identification for boarding a domestic flight. Kentucky is one of nine states not in compliance.

During the 2016 General Assembly, the House and Senate agreed to legislation bringing Kentucky into compliance with the Act, but it was vetoed by Governor Matt Bevin. Kentucky applied for an extension, as did several other states, but our application was denied in October 2016. However, Gov. Bevin’s administration reapplied for an extension and it was granted on January 19, 2017, a couple of weeks before military posts, such as Fort Knox and Fort Campbell, were planning to turn away visitors using a Kentucky driver’s license. Those facilities will no longer accept Kentucky driver’s licenses as a valid form of identification starting June 6, 2017.

This year’s General Assembly has filed HB 77, a new attempt to bring Kentucky into compliance. If HB77 does not become law, you will need one of these forms of identification to board any domestic flight starting January 28, 2018.

Periodically, the Rights Blog will track important bills through the Kentucky General Assembly. These entries are not intended to advocate for or against passage of any particular bill, but serve only to discuss the effects of a bill passing and the effects if it doesn't. More information about the REAL ID Act can be found here.

DUI “Look Back” Has Some Judges Looking Backwards, Some Forwards

The 2016 Legislative Session brought new changes to the DUI laws in Kentucky. Prior to the passage of SB 56, DUI offenses were enhanced based on a five year “look back” window. If a person was convicted of their first DUI in 2010, they would have been eligible for DUI Second Offense if they were arrested again in 2015 or earlier. However, had they been arrested in 2016, they would have only been eligible for DUI First Offense. In response to traffic fatalities caused by drivers under the influence, the 2016 General Assembly extended the enhancement, or “look back” period, to ten years.

Pursuant to the new law, the hypothetical driver that was arrested in 2010 may now be eligible for DUI Second Offense if he was arrested this year, whereas before his punishment could not be enhanced. We emphasize “may” because currently a DUI defendant’s fate depends upon the county he was arrested in. Media reports have shown that the Circuit and District Judges in the Commonwealth are split over the interpretation of the new statute. The splits occur across counties, in which Warren County will not apply SB 56 retroactively, but Adair County will. However, the split also occurs within counties. Jefferson District Judge Sean Delahanty ruled that the law cannot be applied retroactively to those who pled guilty to their previous DUI offenses. “’Thousands of guilty pleas would be subject to set aside,’ if prosecutors tried to go back 10 years to enhance current DUI penalties.” Jefferson District Judge Anne Delahanty disagreed and applied SB 56. The judges in Fayette County are also in disagreement.

The dispute centers on Section 19 of the Kentucky Constitution, which prohibits the enforcement of ex post facto laws, and laws which violate the obligations of contracts. The Kentucky Supreme Court has previously held that DUI enhancement laws do not violate the prohibition of ex post facto. Prosecutors across the Commonwealth have relied on this case to argue that the new “look back” period is constitutional. Circuit Judge John Grise acknowledged that argument, but declared the statute unconstitutional as applied to those who pled guilty to their previous offenses. Citing Hensley v. Commonwealth, 217 S.W.3d 885, 886 (Ky.App.  2007), Judge Grise found the guilty plea to be a contract between the Commonwealth and the defendant. He further found that the five year enhancement was a term of that contract, and it could not be altered by the General Assembly. “[I]t is disingenuous to suggest the five year ‘look back’ played no role in a defendant’s decision to accept the plea agreement, when he is repeatedly told that is the consequence of waiving his right to self-incrimination.  If it plays no role, judges would not be required to include it in their colloquies.”

The Commonwealth's Attorney appealed Judge Grise’s decision to the Court of Appeals. However, the Commonwealth then moved to bypass the Court of Appeals and obtain discretionary review from the Kentucky Supreme Court. The Kentucky Supreme Court granted the motion on December 15, 2016, and a decision will be rendered sometime in 2017. The case number is Commonwealth v. Jackson, 2016-SC-000530.

If you have been arrested for Driving Under the Influence, it is important to know your rights. The attorneys at Barsotti & Manley, PLLC, are experienced with the DUI laws of the Commonwealth and are willing to help resolve your case in a favorable manner. Visit our website, www.bmlawky.com, or call us at (859) 429-3444.


Declarations, a New Estate Planning Tool

Everyone understands the importance of a Last Will and Testament. However, many people do not have a Will and even fewer remember to update the one they have. There are other documents that provide instructions to our loved ones that many people do not realize exist. These include Living Wills, Durable Powers of Attorney, and a brand new document known as a “Declaration."

Living Wills provide healthcare instructions in the event of a serious, but nonlethal, medical emergency. If you find it difficult to decide what your doctors should do in the event you cannot respond, is it fair to leave that decision to your family? Durable Powers of Attorney give family members the authority to protect and carry out your financial obligations. “Declarations,” a new document enacted by the 2016 General Assembly, contain burial or cremation instructions. Declarations can be given directly to your chosen funeral home and they will carry out your final wishes without placing additional stress on family members during an already difficult time.

The New Year does provide opportunities for hope and progress. The attorneys at Barsotti & Manley, PLLC, can help you cross proper estate planning off your list, and give you the peace of mind you deserve while you work on those New Year's resolutions.