Frequently Asked Questions

Questions and answers about Being Arrested in Kentucky, Auto Accidents, and Dissolution of Marriage.

 

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Arrested in Kentucky FAQ's

Auto Accident FAQ's

Dissolution of Marriage FAQ's

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  • When are you under arrest?

    When are you under arrest?

     

    You are arrested when law enforcement officers take you into custody or otherwise deprive you of your freedom of movement in any significant way in order to hold you to answer for a criminal offense.

    The police officer is obligated to identify himself and to advise you that you are under arrest and why, unless circumstances make it impossible for him to do so at that time.

    When you are served the appropriate papers having to do with your arrest you will be given a court date. If you are charged with a misdemeanor you should be prepared to either plead guilty or prepare a defense to the charges against you. If you are charged with a felony you will be required to come to a court for a "first appearance" where the judge will determine that you understand the nature of the charges against you and inquire if you have an attorney. If you want an attorney and demonstrate your need to the court by "Certificate of Indigency" you may be allowed an appointed attorney. A "probable cause" hearing will be scheduled, the purpose of which is to determine whether there is sufficient evidence to bind the charges over for trial in Circuit Court.

     

  • May a law enforcement officer detain you without arresting you?

    May a law enforcement officer detain you without arresting you?

     

    Based upon reasonable suspicion that you may be involved in criminal activity a police officer may require you to identify yourself and explain your presence at a particular time, without arresting you. The officer may not remove you from the immediate vicinity without making an arrest unless you voluntarily accompany him to some other location.

    If the officer has reasonable grounds to believe that you are armed and/or that you may be dangerous to yourself or others, he may conduct a limited pat-down of your outer garments for the purpose of detecting weapons. If this "frisk" results in reasonable belief on the part of the officer that you are carrying a weapon, he may remove the suspicious object for the purpose of protecting himself. The officer must return to you any lawful object he finds unless he places you under arrest. Unless you are under arrest, his frisk or search must be limited to suspected weapons.

    The officer may want to ask you some questions in order to complete his investigation report. You have a constitutional right to not answer them.

    If you should enter a retail establishment where goods are placed on display and for sale, the merchant or his employees may detain you on the premises for a reasonable time for questioning if they have probable cause to believe that you have stolen or have attempted to steal goods for sale. Under such circumstances a police officer called to the scene may make an arrest for shoplifting even though the alleged offense was not committed in his presence.

  • When may you be arrested with a warrant?

    When may you be arrested with a warrant?

     

    A police officer may arrest you at any time if he has warrant for your arrest, or if he has knowledge that a warrant for your arrest has been issued.

    A warrant is an order issued by a court charging that you have committed a particular crime and directing the Sheriff and all police officers of the state to arrest you and bring you before the court. You may require the officer to read the warrant after you have been arrested.

    An arrest warrant should not be confused with a search warrant.

     

    When may you be arrested without a warrant?

     

    A police officer may make an arrest under a variety of circumstances. Among these circumstances are:

     

              •When he knows that a warrant has been issued for your arrest and is still in effect even though the warrant may be held by another police officer.

     

              •When the arresting officer has probable cause to believe that a felony has been or is being committed and that you are the person who has committed or is committing the felony.

     

              •When a misdemeanor is committed in the presence of the officer, or if the officer has probable cause to believe you are DUI, have shoplifted, have committed an act of domestic violence, and other limited instances.

     

  • What force may the officer use in making an arrest?

    What force may the officer use in making an arrest?

     

    The officer may employ all reasonable and necessary force to overcome resistance in making a lawful arrest. The legality of the arrest has nothing to do with whether or not you are ultimately convicted. As long as the officer has reasonable grounds for making the arrest at the time of the arrest, you will not later be heard to complain that the arrest was unlawful merely because you were not found guilty.

     

    Resisting arrest is a misdemeanor. You could be convicted of resisting arrest even if you were not found guilty of the crime for which you were arrested.

     

    Obstructing an officer in his duty is also a misdemeanor.

     

    If you believe that your rights are being violated, make it a point to remember exactly what the police officer did and then advise your attorney concerning this at the earliest possible time.

     

     

  • When may you be searched?

    When may you be searched?

     

    While the law of search and seizure is very complex and often will depend on the facts and circumstances in a particular case you should not resist a search with force; however, neither should you consent, in general, to any search. If you do object to a particular search, advise the officer who is conducting it that you do not consent, that you do object to the search and ask him to identify himself.

     

    In most cases involving search and seizure issues, "reasonableness" of the search is the legal test without a search warrant. If police officers arrive at your premises armed with a search warrant they may search only that portion or area authorized in the warrant itself. You are entitled to have a copy of the search warrant and a list of any items found and taken during the search.

     

    Any extension of the search beyond the provision of the warrant would be unlawful, but, your remedy for this lies with the courts and the officer's efforts should not be resisted with force.

     

    If you are arrested in your home, the officers may conduct a limited search of the immediate area where you are arrested without a search warrant. They may also check the rest of the house for any hidden accomplices. They may seize any contraband or stolen property or instrumentalities or evidence of a crime that they discover in plain view in any portion of the house where the officers have a right to be.

     

    When you are arrested while driving your automobile, the officer may make a limited search of your car at the time for the purpose of discovering weapons which might be used against them. They may not make a general search of your automobile unless there is a probable cause that the vehicle is carrying the fruits or instrumentalities of a crime or contraband.

     

    Your automobile may also be impounded and inventoried if there is no qualified licensed driver or towing agent to take care of it. If an officer is about to impound your car, tell him that you have a relative or friend that will come get it, or that you have a preference of your own station, etc., to tow your car.

  • What procedures are usually followed when you are arrested?

    What procedures are usually followed when you are arrested?

     

    The officer will take you to a police station or the Sheriff's office.

     

    You will be advised generally as to the charges against you. However, these charges may be changed later and stated in more detail by the prosecutor or in some instances by the grand jury.

     

    You may be required to participate in a lineup, to prepare a sample of your penmanship, to speak phrases associated with the crime with which you are charged, to wear certain apparel. You have an absolute right to counsel. If you are arrested, you should immediately ask to talk to and contact a lawyer.

     

    You may also be required to be photographed or fingerprinted.

     

     

  • What happens to personal property that you may have with you?

    What happens to personal property that you may have with you?

     

    If you should be booked into a jail the police may take money and property from you for safekeeping. They will carefully inventory your money and property and give you a copy of the inventory.

     

    At the time of your release from jail, your property, that is not evidence, will be returned to you. You will be given the opportunity to sign the property list. You should make certain that the list includes all items taken from you.

     

  • What are your rights after you have been arrested?

    What are your rights after you have been arrested?

     

    You have a right to know the crime or crimes with which you have been charged.

     

    You have a right to know the identity of the policemen who are dealing with you.

     

    You have the right to communicate by telephone with your attorney or family or friends as soon as you are brought to the police station as practicable. The police have the right to complete their booking procedures before you are allowed to use the telephone.

     

    You have the right to be represented by counsel at all critical stages of your case. If you cannot afford an attorney, the court will appoint an attorney to represent you free of charge if you qualify under existing criteria as an indigent. This right pertains to any offense, however trivial, for which any imprisonment whatsoever might result.

     

    Constitutional rights may be waived or given up voluntarily. Before you say or sign anything that might result in waiver of a constitutional right weigh your decision carefully, and contact a lawyer.

     

     

  • What rights do you have when you are being questioned by police?

    What rights do you have when you are being

    questioned by police?

     

    You have the right to remain silent.

     

    If you choose to speak anything you say can be used against you in court.

     

    If you decide to answer any questions you may stop at any time and the questioning will cease.

     

    You have the right to consult with your attorney before answering any questions. You have the right to have your attorney present if you decide to answer any questions, and if you cannot afford an attorney, one will be provided for you or appointed for you by the court without cost to you before any further questions may be asked.

     

     

  • How may you be released?

    How may you be released?

     

    You may be released on your own recognizance, without posting any money, or you may be released on bond which involves the posting of either cash money or a surety bond as security for your court appearance. This may mean a relative or friend may have to sign your bond to assure your appearance. You may also, in more serious crimes, be permitted to put up real estate in Kentucky that you or a friend owns.

     

    If you are taken into custody and booked into the jail and remain there you must be brought before a court within 24 hours of arrest. At that appearance you may request that the court lower your bond in consideration of your ties with the community, financial resources, employment records or any other factors.

     

    Upon arrival at the jail, or shortly thereafter, you will be afforded the opportunity to contact your attorney. The attorney, in turn, may arrange for the posting of a bond and he may appear with you in court and ask the court to lower the bail if he believes it to be excessive under the circumstances.

     

     

  • What is Kentucky's no-fault insurance law?

    What is Kentucky's no-fault insurance law?

     

    Kentucky's no-fault insurance law actually has nothing to do with fault. It is a law about how insurance benefits must be paid in the event of an automobile accident resulting in injury. [Note:

     

    No-fault does not apply to damage to your car, which is covered under the "collision"provision of your policy and/or the "property damage liability"provision of the at-fault vehicle's policy

     

    Under this law, a person involved in an automobile accident must look to the insurance policy on the car in which they were occupying at the time of the accident to collect all amounts up to $10,000 in out-of-pocket losses. As a backup, anyone except the driver of an uninsured vehicle can fall back on his or her own insurance No-fault benefits are also known as Personal Injury Protection or PIP.

     

    These out-of-pocket costs include medical bills, prescriptions, a limited benefit for lost wages, funeral bills up to $1000, and "survivor's loss of services". The wage loss benefit on most policies is capped at $200 per week. Added coverage (called "added PIP") is available on request. Added PIP can also be "stacked," creating more than the "basic coverage"of $10,000. Basic coverage up to $10,000 cannot be stacked.

  • How can I collect no-fault benefits?

    How can I collect no-fault benefits?

     

    If you are injured in an automobile accident you must first notify your own insurance company If you were not in your own car, then the insurance company covering the car you were in must be notified. If you were a pedestrian, then you must contact the insurance company for the vehicle that struck you. If the insurance company for the vehicle that struck you is unknown or if the vehicle that struck you is not insured, then you must contact your own insurance company

     

    Once the insurance company responsible for your PIP has been contacted, they will require you to complete a No-fault/PIP application. This application must be filled out, signed, and returned to the company in order to qualify for No-fault/PIP benefits.

     

    Additionally, you will have to complete and sign authorizations for the insurance company to obtain your medical and payroll records. The insurance company will have to be provided copies of itemized medical bills, pay stubs, W-2 forms, doctors' statements and statements from your employer. Once the insurance company has all the required information it is required to make payment within 30 days.

     

  • Do I need an attorney to collect these benefits?

    Do I need an attorney to collect these benefits?

     

    Many times you can collect these benefits from your own insurance company without an attorney Although the application form seems simple, there are some questions that can create problems if answered incorrectly. However, you also may need to proceed against an at-fault driver and their insurance company If that is the case, then it is strongly recommended that you hire an attorney. In all cases consultation with an attorney is recommended.

     

     

  • Will I be required to take a medical examination?

    Will I be required to take a medical examination?

     

    The insurance company cannot automatically require you to be examined; however, it can file a petition in court, for good cause, to require such an examination this is not a common occurrence.

     

     

     

  • Will I be required to make a statement?

    Will I be required to make a statement?

     

    In most cases you will not be required to make a statement, but some insurance companies may request it.

     

  • What if I'm in a car that doesn't have insurance?

    What if I'm in a car that doesn't have insurance?

     

    If you are not the driver, you can fall back on your own insurance policy or that of a family member in your household. If you don't have Kentucky automobile insurance, there is an assigned claims plan which applies unless you simply disregarded your obligation to buy No-fault insurance, or let your policy lapse. An application would have to be submitted to Kentucky Assigned Claims. You may wish to have an attorney help you with this procedure.

     

     

     

  • What about motorcycles?

    What about motorcycles?

     

    Automobile policies automatically include no-fault insurance, but motorcycle policies do not No-fault can be requested on a motorcycle policy, which is quite expensive. When a motorcycle is not covered for no-fault benefits you may not be able to collect the first $10,000 of your out-of-pocket losses. However, you can still proceed against an at-fault driver if your case meets the criteria below, for pain and suffering damages as well as the amount of medical bills and wage loss over $10,000. You definitely should consult an attorney to determine how to proceed in these cases.

     

     

  • What about deductibles?

    What about deductibles?

     

    Many no-fault policies now contain a $500 or $1000 deductible. You cannot sue for this money. This means the first $500 or $1000 of medical bills or lost wages will come out of your own pocket. This is recommended only for those who can afford this amount of loss You would be able to collect the entire $10,000 if your out-of-pocket losses were $10,000 or more.

     

     

     

  • How does this affect my right against an at-fault driver?

    How does this affect my right against an at-fault driver?

     

    In Kentucky you can only proceed against at-fault drivers in certain cases. The requirement is that you have either $1000 in medical bills, a broken bone or a permanent injury. If the case is serious enough to meet one of these three criteria, then you have a right to bring a claim against the at-fault driver. You can seek recovery for pain and suffering damages and other types damages if those damages can be proven You will need a lawyer if you plan to take this step Even if you bring a lawsuit against the at-fault driver, you still have to collect the medical bills and lost wages up to the no-fault amount from your own insurance company. Bills and wages you could have collected through no-fault insurance cannot be collected through the lawsuit from the other party, even if you have not collected them In other words, the at-fault party is always immune for the first $10,000 of your out-of-pocket losses regardless of fault.

     

     

     

  • Do I have to pay back my insurance company?

    Do I have to pay back my insurance company?

     

    Kentucky no-fault insurance provides for your insurance company to be paid back from the at-fault driver's insurance. Usually, this is something you don't have to worry about and is handled between the two insurance companies. However, in dealing with any of these issues, it pays to have the advice of counsel.

     

     

     

  • What about time limits to bring an action against an at-fault driver?

    What about time limits to bring an action against an at-fault driver?

     

    Under Kentucky law, the statute of limitations for filing a lawsuit against an at-fault driver is two (2) years from the date of the automobile accident or two (2) years from the date of the last No-fault/PIP payment, even if the last payment is well beyond two (2) years after the accident.

    However, derivative claims such as the right of a spouse to sue for injury to that spouse's husband or wife remains one year.

     

    In all cases where a lawsuit is contemplated consultation with an attorney is recommended in order to determine such issues as the proper court and time limits. Many cases have unique issues and a full discussion of those issues with a lawyer can help you determine if and when this type of legal action should be taken.

     

     

  • Where can an individual file for a dissolution of marriage?

    Where can an individual file for a dissolution of marriage?

     

    Each state of the United States has a residency requirement in effect for the filing of an action to dissolve a marriage. Kentucky requires that an individual must have been a resident of the Commonwealth of Kentucky for at least six months prior to the filing of any such proceeding. A dissolution of marriage proceeding is filed based upon the residence of the parties as opposed to the site where the marriage occurred.

     

  • How is a dissolution of marriage action commenced?

    How is a dissolution of marriage action commenced?

     

    To initiate a dissolution action in the Commonwealth of Kentucky, a party files a Petition for Dissolution of Marriage. The initial document contains primary factual information regarding the parties and their minor children, if any, and their request for relief. In the Petition which is the initiating document filed with the Court, the party must allege the marriage is irretrievably broken and there is no prospect for reconciliation between the parties. After the action is filed, the moving party must give notice to the other side. Notice is given in one of three ways - service of the Petition by the sheriff; service of the Petition by certified mail by the clerk of the county where the action was filed; or the other side executes a waiver of notice and entry of an appearance. It is usually after this process the party will, if needed, file motions for temporary relief with the Court. The motion may address various issues which include, but are not limited to custody, child support, maintenance, exclusive use of houses or cars or to require somebody to maintain medical insurance on the parties during the pendency of the action. This list is clearly not exhaustive, but only covers some of the issues which can be raised by a motion before a Court.

     

     

  • What happens to property?

    What happens to property?

     

    The guiding principle in a proceeding to dissolve a marriage is to insure an equal division of the parties' property, not only their assets, but also their liabilities. This does not necessarily mean an equal division of the property. The division of property includes both real, i.e., land, and personal property, i.e., household furniture, belongings, etc. In the event the parties can arrive at an agreement as to the division of their property and debts, the Court has the authority to approve such an agreement. In order to determine an equitable division of property and debts, the Court considers a number of factors outlined by the state law or prior judicial case law. Any judicial decision must first include a determination as to what assets and liabilities constitute marital property subject to division. If a party can show that some of the property which was accumulated during the course of the marriage was non-marital property which belonged to that party, then, obviously, that property would not be subject to division by the Court.

     

     

  • What is the difference between a contested and uncontested dissolution of marriage?

    What is the difference between a contested and uncontested dissolution of marriage?

     

    An uncontested dissolution of marriage proceeding is based upon full and complete agreement by and between the marriage partners. Both parties must be in complete agreement as to the division of all property, the payment of all debts, the allocation of parental rights regarding the parties' minor child or children and the amount of child support. During a hearing of an uncontested divorce, the moving party must testify the marriage between the parties is irretrievably broken and that there is no prospect for reconciliation. The proposed separation agreement the parties have entered into must be approved and made an Order of the Court. Again, in an uncontested dissolution of marriage, the parties have reached an agreement regarding all issues which are pending before the Court.

     

    A contested dissolution of marriage occurs when the parties are unable to reach a complete agreement regarding the issues presently pending before the Court. The parties may disagree regarding the division of certain assets, the payment of certain debts, the issues of custody and child support and any other issues that may be pending before the Court.

    If the dissolution action is contested, the parties and their respective counsel argue the issues and their client's position to the Court and the Court issues a final decision regarding the issues that were in dispute.

  • What effect does a dissolution of marriage have on a third party creditor?

    What effect does a dissolution of marriage have on a third party creditor?

     

    A decree of dissolution of marriage provides for a termination of the marital relationship as well as a division of the marital property, including both assets and debts. This decree is binding upon the parties to the dissolution action. The failure by one party to comply with its terms may result in that particular party being held in contempt and subject to certain sanctions and penalties imposed by the Court. However, a decree of dissolution is not binding upon a third party creditor as said creditor is not a party to the dissolution of marriage proceeding. A third party creditor may still elect to pursue its collection and enforcement remedies despite what is contained in the decree of dissolution. Thus, the third party creditor may pursue appropriate remedies against any party with whom it has a contractual relationship and is not bound to follow the terms of the decree of dissolution which has been signed by the parties.

     

  • What is involved in deciding custody of the minor children?

    What is involved in deciding custody of the minor children?

     

    A dissolution of marriage proceeding must make a provision for determination of custody of the minor child or children or allocation of parental rights regarding their minor children. A guiding principle in this determination is what is in the best interests of the minor child or children. Absent an agreement by the parties which is approved by the Court, a Court must make a decision as to which parent is the appropriate parent to be awarded custody of the minor child or children. Factors used in such a decision or determination are enumerated in the statutes and based upon prior case law. The Courts are vested with authority to conduct custody evaluations if such an evaluation would offer insight into which party is more appropriate to have custody of their minor child or children. In the past, the Courts have opted to award custody of the minor child or children to one party. However, the Courts are now utilizing more joint custody or shared parenting arrangements to foster joint involvement by the parties in rearing their children.

  • How much child support is to be paid?

    How much child support is to be paid?

     

    The Commonwealth of Kentucky has devised and developed child support guidelines for determining the amount of child support to be paid in a particular case. These schedules include a number of factors including gross income of the parties, health care costs, child care or baby-sitting expenses and prior Court orders regarding children for which a party is ordered to pay child support. The Court does provide for a deviation from the schedule if such deviation is appropriate and in the best interests of the child or children. However, a deviation from the guidelines normally does not occur unless there is some shared parenting arrangement. Child support is generally paid until the child attains the age of 18 and has graduated from high school. However, child support is never paid for a child past his 19th birthday unless the child is disabled. In that case, child support may be paid for the lifetime of the minor child. Child support is often paid through the child support enforcement agency. The parties have the right to request the paying party to pay by means of a wage assignment to insure that the child support is deducted from the payor's wages.