There is a cultural myth widely disseminated in our society that once you have served your time for a criminal offense, you will be given a “clean slate” to rebuild your life. Unfortunately, many people assume that this “clean slate” is automatic once their period of incarceration has ended or their terms and conditions of probation have been fully satisfied. We hear from many people who discover that the reality is not quite so straightforward only after being denied a professional license, job, loan or rental property.
Even if you were never convicted and/or formal criminal charges were never filed, this does not means that a record of your contact with law enforcement is not available when others conduct online research and criminal background checks. If you were arrested as a teenager for a youthful indiscretion, you may have presumed that your record was cleared when you reached the age of eighteen. Adults who are arrested or convicted for a relatively minor offenses typically presume that the public record of their contact with law enforcement disappears with the passage of time. These types of misconceptions can have devastating consequences on one’s career, personal relationships and educational opportunities even when the offense never led to a criminal conviction and occurred decades earlier.
While some might presume that there is no reason to worry about a conviction of a low level misdemeanor offense that occurred long ago or an arrest that never resulted in criminal charges, the widespread availability of information on the Internet has made the consequences of failing to clear any type of law enforcement or criminal court contact from one’s record a risky proposition.
Although law enforcement and court records associated with a criminal offense may be expunged, there is a mandatory waiting period that is imposed before a party can seek to clear the records associated with a criminal offense in Kansas that varies in duration based on the crime. Generally, the criminal record for many offenses committed by adult offenders may be expunged once three years have passed from the time the sentence has been completed or the terms of diversion or probation have been fully satisfied. Although most misdemeanors and some felonies can be cleared based on this timeframe, other felonies require an individual to delay applying for expungement even longer. Level one through three drug offenses and level one through five non-drug crimes may not be cleared until five years have passed.
Despite the widespread belief that juvenile offense records are unavailable to those conducting criminal background check, they also must be expunged to avoid the potential adverse consequences of disclosure. A two year period of time must pass from satisfaction of the terms of a sentence, probation or diversion to have the records cleared for a juvenile offense.
There are certain offenses that cannot be expunged or that are subject to longer waiting periods before the records can be cleared. Because of the emphasis on imposing more serious penalties on DUI offenders to reduce the number of DUI accidents that result in serious injury or death, an individual convicted of driving under the influence is not eligible to have the offense expunged until ten years have passed. However, the law has changed frequently over the years so those who were arrested and/or convicted of DUI should seek legal advice regarding their ability to expunge their criminal record. Sex offenses are also problematic because many sex offenses cannot be expunged. Those sex crimes that can be expunged must wait until the periods above have been satisfied or the individual is no longer required to register as a sex offender, whichever occurs later in time.
Kansas City criminal conviction expungement attorney Stacey Schlimmer recognizes the importance of ensuring that a mistake in your past does not continue to haunt you decades later. Our Johnson County criminal defense law firm offers a confidential free consultation so call us today at 913-219-5424 or contact us online.
Many people pulled over in Kansas for driving offenses, including but not limited to driving under the influence (DUI) believe their conduct during the stop and after a subsequent arrest has little impact on the outcome of a subsequent criminal case. This misconception often results in drivers failing to assert their legal rights and essentially volunteering damaging information that is used to obtain a conviction of alcohol or drug-related driving offenses. However, law enforcement officers must have probable cause that an individual has committed a crime before arresting a suspect. Further, the tail cannot wag the dog, which means the officer may not satisfy the probable cause standard for a lawful DUI arrest by relying on evidence obtained subsequent to the actual arrest. The importance of this principle in DUI cases becomes apparent when one considers how it can impact the application of the Kansas implied consent statute.
This statute provides that a driver implies his or her consent to provide a breath, blood or urine sample for blood alcohol concentration (BAC) testing when he or she is lawfully arrest for an alcohol-related offense. This means that the law enforcement officer cannot request that a driver submit to a breath test or other chemical test level if the request is predicated on an arrest for an unrelated driving offense like driving without a license or failure to provide proof of insurance. While the importance of this distinction may not seem immediately apparent to some, this means that the officer may not arrest you for driving on a suspended license, for example, then request a formal DUI BAC test at the police station based on the arrest.
The reason that this is important to you as a Kansas motorist is that this means the officer may not have sufficient evidence to justify a DUI charge unless you provide such evidence. The officer at the scene of a traffic stop will observe your demeanor and note physical characteristics that might suggest alcohol impairment, such as unsteadiness, bloodshot eyes, slurred speech and the odor of alcohol. If the officer cannot gather sufficient evidence from these observations or the officer’s prior observation of your driving to provide probable cause for a DUI arrest, you may be able to reduce the likelihood of a DUI conviction by declining to participate in field sobriety tests including a roadside portable breath test.
If the observations made by the officer at the scene and prior to the stop do not provide sufficient evidence to constitute probable cause for a DUI arrest, you may benefit from refusing field sobriety tests and a portable breath test because your driver’s license cannot be subject to suspension under the Kansas implied consent law for these refusals. Since the officer cannot arrest you for a non-alcohol-related driving offense and require that you submit to BAC chemical testing under the implied consent statute, this may create potential defenses in your DUI case.
Kansas DUI attorney Stacey Schlimmer provides zealous defense of her clients charged with DUI and other alcohol-related driving offenses. Our Johnson County criminal defense law firm offers a confidential free consultation so call us today at 913-219-5424 or contact us online.
This is the second-installment of our multi-part blog post that sets the record straight on a number of common myths and misconceptions regarding the defense and prosecution of criminal cases in Kansas. It might be helpful to review Part I of this post before continuing on with this installment.
Myth #3: There is no good reason to spend the money on a private attorney because a public defender will be just as effective.
Most court appointed attorneys are dedicated and experienced criminal defense attorneys, but they must deal with a number of disadvantages. Generally, they are forced to handle an extremely heavy caseload which makes it difficult for them to devote as much time to each case as a private attorney who has more flexibility to limit his or her caseload. Our law firm also may be able to devote more litigation resources to each case for DNA testing, experts and other expenses. If you decide to use a court appointed attorney, it is important that you be comfortable with the fact that your time to meet and discuss the case may be more limited than with a private attorney.
Myth #4: There is no need to retain counsel if the police officer tells you that the prosecutor will probably not file charges on the case.
The police generally are not in a position to enter into binding agreements with a suspect so there representations about what the prosecutor will do in the case are not reliable. Although plea negotiations are a common part of the criminal process, these discussions need to be conducted formally with the prosecutor in the case. The police and prosecutor have the advantage when you do not have legal representation so it is an extremely risky proposition to proceed with discussing a potential plea bargain without a criminal defense attorney in the room.
Myth #5: Forensic evidence is usually based on reliable scientific testing so who I select as a defense attorney will not have much impact if there is a substantial amount of forensic evidence.
It is important to understand that much of the so-called “scientific evidence” used in criminal prosecutions is more akin to “junk science.” With the exception of certain DNA testing, the National Academy of Sciences recently conducted a study and found that other purported forms of forensic “science” were not properly subjected to peer review nor had they been established as accurate and reliable by the scientific method. The study specifically concluded that the scientific verification was lacking for ballistics, handwriting analysis and fingerprinting. Experienced Kansas criminal defense attorney Stacey Schlimmer can and does aggressively attack so-called forensic evidence and purported experts.
Myth #6: If you ask a police officer if he is a cop, he must answer truthfully.
Dishonesty and lying is a valuable and effective law enforcement tool in undercover operations, interrogations and other law enforcement scenarios. Both state courts in Kansas and the U.S. Supreme Court have repeatedly sanctioned the practice of lying by police officers including deception about their identity.
Kansas DUI attorney Stacey Schlimmer provides zealous defense of her clients charged with crimes in Kansas. Our Johnson County criminal defense law firm offers a confidential free consultation so call us today at 913-219-5424 or contact us online.
Because many people arrested for criminal offenses in Kansas have had minimal contact with the courts prior to their first arrest, they may be unfamiliar with their legal rights and the criminal justice system. This lack of experience can be particularly damaging when combined with misconceptions fostered by procedural dramas on television and other unrealistic depictions of law enforcement and the criminal process. The cost of not understanding one’s legal rights when facing a criminal investigation, search or arrest can be a long period of incarceration in county jail or state prison that could have been avoided had the individual responded differently when interacting with law enforcement authorities. In this multi-installment blog, Kansas criminal defense attorney Stacey Schlimmer has attempted to dispel some of the common myths that may be the reason for a conviction or more serious criminal sentence.
Myth #1: If the police fail to Mirandize you, you cannot be convicted.
The failure to provide a Miranda warning or one that is sufficiently defective may provide the basis to exclude any statements made by you to police after you have been taken into custody. However, voluntary spontaneous utterances as well as those made prior to the point you are in custody may be used against you in a criminal case. This basic rule means that it is generally inadvisable to talk to the police without an attorney present regardless of whether you have received a Miranda warning. It is also important to keep in mind that the police may have other evidence such as direct physical evidence, circumstantial evidence or witness testimony which can be used by the prosecutor to obtain a conviction even if statements made by you are excluded because of a Miranda violation.
Myth #2: If you cooperate during an interrogation, the police and prosecutor will be more inclined to be lenient than if you retain an attorney and refuse to answer questions.
This is a common misrepresentation that police rely on to persuade suspects to waive their constitutional rights to an attorney and against self-incrimination. The information you provide will be used by the police and prosecutor to accumulate more evidence and build a more compelling criminal case. If the prosecutor has a stronger case, it can lead to a greater number of charges, more severe charges and minimal motivation for the prosecutor to negotiate a lenient plea bargain. There is no better way to reduce the risk of a conviction and lengthy period of incarceration than to immediately and emphatically indicate that you will not talk to anyone until your criminal attorney is present.
We invite you to continue reading the subsequent installments of this multi-part blog post. If you have specific questions about your particular situation, we invite you to arrange a consultation with our experienced Kansas criminal defense team. Kansas criminal defense attorney Stacey Schlimmer provides zealous defense of her clients charged with crimes in Kansas. Our Johnson County criminal defense law firm offers a confidential free consultation so call us today at 913-219-5424 or contact us online.
Recently a Lincoln, Nebraska man was relieved when his charges of sexual assault were dismissed a week into the trial. The twenty-one year old man was accused of having sexual contact with a nineteen-year old woman who had passed out after drinking excessively at a fraternity party. From the beginning of the investigation, the young man told law enforcement he had also consumed a large amount of alcohol and had no memory of the details of the night. When cross-examined by defense, the young woman conceded it was possible she had not been raped and that the sex was consensual.
The state prosecutor countered by asking the young woman if it was possible she had been too intoxicated to consent to sex and she answered affirmatively. The defense attorney argued there was simply not enough evidence regarding whether the woman had been sexually assaulted and asked the judge for a directed verdict. The judge agreed, questioning the alleged victim’s intoxication level and finding the state had not provided sufficient evidence at trial to enable a reasonable jury to find the young man guilty of first-degree sexual assault. The young man faced up to 50 years in prison if he had been convicted of the crime of sexual assault.
A Conviction for Sexual Assault Can Change Your Future Forever
Obviously, had this young man been convicted of sexual assault, his entire life would have changed and his future would have been reduced to spending the majority of the remainder of his life behind bars. If you are under investigation, have already had charges filed against you or even think you might be under investigation for sexual assault, the manner in which those charges are handled can absolutely determine how it will eventually resolve. Early intervention is crucial and having a highly experienced, aggressive criminal defense attorney involved in that intervention from the very beginning is arguably one of the most important things you can do for your future.
Following accusations or charges of sexual assault, the wheels of justice may move so slowly as to feel as though they have stopped altogether. The prosecution will be gathering evidence against you, including forensic examination of your computer and cell phones as well as DNA evidence, statements from your accuser and any other potential witness statements. You need an attorney who will not sit idly by during these long months but will use this time to strengthen your case by staying in close touch with the prosecutor and monitoring the state’s progress. Your criminal defense attorney will also be gathering evidence that will exonerate you and will be speaking to witnesses who can help your case. There are things you can do that will assist your attorney such as:
The consequences and social stigma which come with a conviction for a sex crime—and, in many cases, even allegations of a sex crime—can be overwhelming. Kansas criminal defense attorney Stacey Schlimmer has a proven track record of representing those charged with a sex crime and will aggressively defend your charges. Many times sex crime charges are considered by the public to mean “guilty until proven innocent.” Attorney Schlimmer has a clear understanding of the uphill battle you will face and will remain by your side, fighting hard for your rights and your future. Call (913) 390-0484 today for a confidential free consultation or contact us online.