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Thread: Legal question

  1. #1
    Regular Member Comm's Avatar
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    Legal question

    OK, I have been here for a while, and have gotten many good answers to questions. But, here is one that has bothered me for some time. It's a long story, and I hope I don't bore you with the details...

    I was working as a Maintenance supervisor at an apartment complex in Lexington many years ago. One of our duties was to do evictions. Now we always got a LEO on site to make sure we didn't steal anything when the Home owner was not around. We would take their stuff, and set it on the street corner, and change the locks.

    On one case, we evicted this guy and his wife. We followed properly procedure, and had an LEO on site just as always. The LEO tried 3 times to call the owner to tell him he was being evicted. Now if you have ever seen an eviction, especially around apartments, it's like buzzards circling overheard waiting for the LEO to leave, then it's fair game, and we were not bound to watch their stuff.

    Well, this guy comes home, and finds that most of his belongings were gone. He yelled at the manager, and me for not telling him, and we pointed out the LEO tried to call him several times. He got mad and left the apartment office, and filed an arrest warrant for me and the manager. Now filing for an arrest is so easy, and I think this needs to change. All it takes is 4 dollars, and a file saying I saw someone break into a house, and the LEO's will be arresting you that night, which is what happened to me.

    I got a lawyer, and went to a hearing, in which case the lawyer demanded a court date. He said you don't want them to get a case on you, so he demanded a date. He also got an investigator to look into the charges of theft by unlawful taking which is what the guy that was evicted filed against us. I should mention that this guy had 4 pages of arrests, and parole violations, and drug charges, while I did not even have a speeding ticket.

    On the day of our court date, the lawyer and I went to the court house. No one was present. No judge, or people in the room. The lawyer checked and said the case was dismissed, meaning that we were clear and the case was dropped due to the investigator testifying for me and the manager.

    I thought every thing was ok, until I filed for my CCW permit. Ky State police mailed back my app saying it had an arrest on it, of theft by unlawful taking. I thought it would be expunged automatically, but it didn't. Anyway, I had a lawyer friend tell me to get the court doc's saying that the case was dismissed, and had it sent to KY police, and got my CCW.

    Now, if I am ever stopped, OC, or CC, and they run that check, will it come up that I have that arrest? My lawyer friend says that since it's been several years, I cannot get it expunged?

    Any ideas/comments??

    Sorry for the length of the story...

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    Last edited by 09jisaac; 09-05-2012 at 11:52 AM.
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    You don't mention whether it was a felony arrest or not. Unless it was a felony case why would they reject your CCW app? Actually my understanding was that unless you had a felony /conviction/ not just an arrest they would and could not reject for it or am I mistaken?

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    Make sure the circuit clerk for Fayette County, where I assume the charges were made, files the dismissal. I am sure the state police returned it because it appeared to be an open case. The docket was never cleared. Happens in Kentucky more than you would think.
    Last edited by hotrod; 09-05-2012 at 02:44 PM.
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    Quote Originally Posted by Sundiver View Post
    You don't mention whether it was a felony arrest or not. Unless it was a felony case why would they reject your CCW app? Actually my understanding was that unless you had a felony /conviction/ not just an arrest they would and could not reject for it or am I mistaken?
    I don't know. The State Police just kicked it out without researching it I guess. I had to pay a whole 6 dollars to get the records from the court and have it notarized, and then have my lawyer friend do a statement saying I was represented by a lawyer. They then sent me the acceptance letter, and I went and got my permit.
    Last edited by Comm; 09-05-2012 at 03:37 PM.

  6. #6
    Regular Member Comm's Avatar
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    Quote Originally Posted by hotrod View Post
    Make sure the circuit clerk for Fayette County, where I assume the charges were made, files the dismissal. I am sure the state police returned it because it appeared to be an open case. The docket was never cleared. Happens in Kentucky more than you would think.
    They had the form, and the dismissal, so I guess it was just the State Police not checking on it. All they saw was the arrest record, and they kicked it out.

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    Quote Originally Posted by Comm View Post
    OK, I have been here for a while, and have gotten many good answers to questions. But, here is one that has bothered me for some time. It's a long story, and I hope I don't bore you with the details...

    I was working as a Maintenance supervisor at an apartment complex in Lexington many years ago. One of our duties was to do evictions. Now we always got a LEO on site to make sure we didn't steal anything when the Home owner was not around. We would take their stuff, and set it on the street corner, and change the locks.

    On one case, we evicted this guy and his wife. We followed properly procedure, and had an LEO on site just as always. The LEO tried 3 times to call the owner to tell him he was being evicted. Now if you have ever seen an eviction, especially around apartments, it's like buzzards circling overheard waiting for the LEO to leave, then it's fair game, and we were not bound to watch their stuff.

    Well, this guy comes home, and finds that most of his belongings were gone. He yelled at the manager, and me for not telling him, and we pointed out the LEO tried to call him several times. He got mad and left the apartment office, and filed an arrest warrant for me and the manager. Now filing for an arrest is so easy, and I think this needs to change. All it takes is 4 dollars, and a file saying I saw someone break into a house, and the LEO's will be arresting you that night, which is what happened to me.

    I got a lawyer, and went to a hearing, in which case the lawyer demanded a court date. He said you don't want them to get a case on you, so he demanded a date. He also got an investigator to look into the charges of theft by unlawful taking which is what the guy that was evicted filed against us. I should mention that this guy had 4 pages of arrests, and parole violations, and drug charges, while I did not even have a speeding ticket.

    On the day of our court date, the lawyer and I went to the court house. No one was present. No judge, or people in the room. The lawyer checked and said the case was dismissed, meaning that we were clear and the case was dropped due to the investigator testifying for me and the manager.

    I thought every thing was ok, until I filed for my CCW permit. Ky State police mailed back my app saying it had an arrest on it, of theft by unlawful taking. I thought it would be expunged automatically, but it didn't. Anyway, I had a lawyer friend tell me to get the court doc's saying that the case was dismissed, and had it sent to KY police, and got my CCW.

    Now, if I am ever stopped, OC, or CC, and they run that check, will it come up that I have that arrest? My lawyer friend says that since it's been several years, I cannot get it expunged?

    Any ideas/comments??

    Sorry for the length of the story...
    Wow! Whoever was doing the eviction process was breaking the law horribly. The tenant is supposed to be given a 30 day notice in advance of a pending eviction. After the 30 days, the landlord can request an eviction from the district court in the county the property is located. The tenant has the right to take the issue before the district court in the county of said eviction; the time frame can be extended, the eviction can be denied, etc. The manager can't just tell you one day to go and remove someone's belongings and change the locks. Without a court order a landlord CANNOT change the locks of a tenants rental, shut the utilities off, or remove their belongings! Why wasn't the apartment manager, landlord, or whoever completed the eviction process charged with a crime?
    Last edited by KYGlockster; 09-05-2012 at 07:04 PM.
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    Quote Originally Posted by KYGlockster View Post
    Wow! Whoever was doing the eviction process was breaking the law horribly. The tenant is supposed to be given a 30 day notice in advance of a pending eviction. After the 30 days, the landlord can request an eviction from the district court in the county the property is located. The tenant has the right to take the issue before the district court in the county of said eviction; the time frame can be extended, the eviction can be denied, etc. The manager can't just tell you one day to go and remove someone's belongings and change the locks. Without a court order a landlord CANNOT change the locks of a tenants rental, shut the utilities off, or remove their belongings! Why wasn't the apartment manager, landlord, or whoever completed the eviction process charged with a crime?
    Forcible detainer. I had to do an eviction one time. Like you said, I had to give them a letter that stated that they has 30 days to move. After the 30 days was up and they hadn't moved I had to take it to court. The judge heard both sides and ruled in my favor. At that point in time they had 7 days to vacate. But again, as you have said, they had an appeal process that they could have done. Lucky for me they didn't and just moved. They had all their stuff out and was long gone in 5 days but I still waited til the "dead line" before I entered the property....even though I had owned it for 6 years at that point. Just wanted to make sure I was legal.
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    Quote Originally Posted by KYGlockster View Post
    Wow! Whoever was doing the eviction process was breaking the law horribly. The tenant is supposed to be given a 30 day notice in advance of a pending eviction. After the 30 days, the landlord can request an eviction from the district court in the county the property is located. The tenant has the right to take the issue before the district court in the county of said eviction; the time frame can be extended, the eviction can be denied, etc. The manager can't just tell you one day to go and remove someone's belongings and change the locks. Without a court order a landlord CANNOT change the locks of a tenants rental, shut the utilities off, or remove their belongings! Why wasn't the apartment manager, landlord, or whoever completed the eviction process charged with a crime?
    I think we did give them 30 days, but on day 31, we went in and changed the locks, and did the eviction. Like I said we had a LEO present, so everything was legal then. I know we never went to court over any we did. This was many years ago, so maybe the process changed some since then.

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    Quote Originally Posted by gutshot View Post


    Yes, so
    what? Its an arrest, not a conviction. Like you said, "Now filing for an arrest is so easy". I'd get a copy of the dismissal, if it still exists. I've got a couple myself.
    Thanks Gutshot! I do have a copy of the dismissal, since I needed it to get my CCW permit.

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    Regular Member self preservation's Avatar
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    Quote Originally Posted by Comm View Post
    Like I said we had a LEO present, so everything was legal then.
    I wouldn't be so sure. I highly doubt he knew much about civil law. Hell, they do good to understand criminal law at times. With that said, I am no expert of how to evict someone. All I can go off of is how I had to do it a few years back.
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    2. The instinct for individual preservation; the innate desire to stay alive.

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    Quote Originally Posted by self preservation View Post
    I wouldn't be so sure. I highly doubt he knew much about civil law. Hell, they do good to understand criminal law at times. With that said, I am no expert of how to evict someone. All I can go off of is how I had to do it a few years back.
    Well, we did it several times, so I guess they way they did it was ok. Never once had any problems, except the one time, for us.

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    Quote Originally Posted by Comm View Post
    I think we did give them 30 days, but on day 31, we went in and changed the locks, and did the eviction. Like I said we had a LEO present, so everything was legal then. I know we never went to court over any we did. This was many years ago, so maybe the process changed some since then.
    Just because a cop was there does not mean it was legal. If there wasn't an eviction order from the court then it was illegal. Something to remember if you are ever asked to do another one.
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    Quote Originally Posted by KYGlockster
    Just because a cop was there does not mean it was legal.
    +8,000

    ETA: why 8,000? That's the approximate cost the last time some cops decided to do something illegal to me, & compound the problem by lying on official reports. There were 3 cops present. Didn't stop any crimes from being committed.
    Last edited by MKEgal; 09-06-2012 at 04:35 PM.

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    You shouldn't have to have a Judge's permission to kick someone out of your own house. It is complete bullsh!t.

    Right after my uncles mother died some people just moved right in to her house. Didn't have permission from anyone. My uncle's family took them to court and they ultimately got to stay rent free for 5 months (took a while to realize that people were living there and then a month to move out).
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    Go look at the requirements for a CCDW. http://www.kentuckystatepolice.org/conceal.htm There's a list of disqualifications. Being arrested is not a disqualification.

    I'd be following the procedures outlined in KRS 237.110 http://www.lrc.ky.gov/krs/237-00/110.pdf for appealing the denial. I'm not sure if you can proceed pro se in Kentucky for the hearing in front of the court. If you need to hire an attorney it should (repeat, "should") be a slam-dunk based on "My client is not disqualified. Issue him a CCDW."

    Stop wasting time here and go follow the steps in the law.

    stay safe.
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    Quote Originally Posted by 09jisaac View Post
    You shouldn't have to have a Judge's permission to kick someone out of your own house. It is complete bullsh!t.

    Right after my uncles mother died some people just moved right in to her house. Didn't have permission from anyone. My uncle's family took them to court and they ultimately got to stay rent free for 5 months (took a while to realize that people were living there and then a month to move out).
    It would also be bullsh!t to have a landlord come over and say get your sh*t and get out over any little disagreement or whatever. It would sure suck to have a couple kids, on time with the rent or even a little behind, and have someone tell you that you no longer have a place to live. Imagine if it was the middle of January and the same happened - someone would be homeless and living on the cold street with no roof over their head or a place to stay warm.

    Having someone move into your home without having a rental agreement, a lease, or permission is a criminal offense. They could be charged with Criminal Trespass, and could be guilty of trying to illegally dispossess you of your property. How did they "move right in?" Did these people have permission to do so from your uncle's mother or something?
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    Quote Originally Posted by self preservation View Post
    Forcible detainer. I had to do an eviction one time. Like you said, I had to give them a letter that stated that they has 30 days to move. After the 30 days was up and they hadn't moved I had to take it to court. The judge heard both sides and ruled in my favor. At that point in time they had 7 days to vacate. But again, as you have said, they had an appeal process that they could have done. Lucky for me they didn't and just moved. They had all their stuff out and was long gone in 5 days but I still waited til the "dead line" before I entered the property....even though I had owned it for 6 years at that point. Just wanted to make sure I was legal.
    I went through this process once with a landlord. My one-year lease had expired, and we were operating on a month to month basis. I informed him that I would not be renewing my lease the following month, and removed all of my belongings into my new residence. I was at the garage/apartment one day making sure I had not left anything and a deputy pulled up and served me a summons to appear in court. I was rather curious why this was since I had already removed my belongings, was up on my rent, and he still had my security deposit. He took me to court for an eviction hearing, and when I told the judge I had already evicted myself, he was was going to give me 30 extra days to remove any of my belongings. I of course told him I didn't need the time, and that was the end of that process.

    The landlord decided that was not what he wanted to hear, so he threatened to sue me for damages to the apartment. The only damages to the entire apartment that I made was a door with a hole where I dropped a piece of furniture into it, and a broken spindle on the porch outside. He had a security deposit of mine for $450 and I told him to keep it and fix what needed to be fixed. The other damage was to the wiring in the apartment, which caught fire in the ceiling and I removed a light fixture to check on the problem, and never put it back after telling him of the problem. He tried saying the wiring default was my fault, and that I owed him for a large amount of damages that I was not going to pay for.

    Anyways, I threatened him with calling the electrical inspector to determine if the inconsistent wiring (a major code violation) was my fault or his. I also threatened to inform the local prosecutor of his illegally registered vehicles. He was committing insurance fraud and when he realized I knew it he decided to back off. He was registering all of his vehicles in Ohio, even though these vehicles never left the state of Kentucky, and he had numerous vehicles.

    The point I guess I am trying to make is that some landlords will try to rape you when you leave their property. Most of the time they don'e like having property set with no one renting, and it costs them money. The laws are in place for a good reason I believe, and I recommend everyone that rents keep track of everything that concerns the rental property. You should always walk through with the landlord before renting and video the process and point out all damages before you move in. And it never hurts to know what your landlord is doing that might be illegal! HAHA.
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    Quote Originally Posted by gutshot View Post
    This may be worst case of thread highjacking I've ever seen. It started by Comm asking if a old dismissed charge will continue to show up on his record as an arrest and then morphed into a discussion of landlord-tenet law. You should take that discussion to www.evictions.org. Now, it has gone to advice on how to reverse a CCDW denial. The man has not been denied a CCDW. He got it years ago. It appears that he may have had to provide the disposition of an unexplained arrest that showed up during the background check, but it was all taken care of very quickly and effectively a long time ago. Many Ky. jurisdictions were very lax in communicating how cases were disposed of years ago. If you were convicted, that omittion was a blessing. If you were aquitted or the charge dismissed, not so good for you. A few years ago the Ky. court system wiped out all records of criminal court proceedings. It was supposed to be for misdemeanors only, but somebody pushed the wrong button and everything when bye-bye. There was a little finger pointing for a short time, then they decided that it was making everybody look bad and hushed it up. I can't remember the effective date, but no records exist for any cases before that time. The arrest records are still there, though. Funny how that works.
    You are right, and I believe his question was answered before the conversation morphed into this direction.
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    Quote Originally Posted by gutshot View Post


    Yes, so
    what? Its an arrest, not a conviction.
    And, an arrest is on your record forever unless you have it expunged. It doesn't mean you did anything wrong, just that you were arrested.

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    Until only recently, in Lexington you could look up any current or previous inmate in the Fayette Co jail. Got arrested eight years ago for suspected DUI? Well, you were still in there. Get arrested for suspended license and no insurance? Your pic was available for everyone to see -- just search by name or date.

    Over the last year or so, they changed it a bit and you can only see the current population housed in the county jail.

    Although I found it interesting to snoop around the site and type in my friend's names lol, I admit having that information easily accessible to the public was kinda sketchy. Remember, you can easily be arrested and never found guilty of a crime -- but the fact that your mug shot and arrest was forever stored on an easily accessible website was a bit of a privacy issue.

    Still, I suspect that info is available offline, but would just take a bit more effort to get to it. Personally if I had been arrested on charges which were later dropped, I'd be pretty upset if my photo remained on such a site.
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    A legal question similar to yours was ask of me about a week ago and I had no idea what to tell the guy. Here's the story. What do you all think?

    A friend of mine that lives in Ky is wanting to try for his CCDW. But a few months back the girl he was dating decided it wasn't working out between the two and she moved back to Indiana where she was from.

    One night they are on the phone (he was in Ky and she was in IN) and an argument broke out. Long story short she filed a police report on him (in Indiana of course) and he was later charged with Indiana IC 35-45-2 1
    Intimidation, that states,
    Sec. 1. (a) A person who communicates a threat to another person, with the intent:
    (1) that the other person engage in conduct against the other person's will;
    (2) that the other person be placed in fear of retaliation for a prior lawful act; or
    (3) of causing:
    (A) a dwelling, a building, or another structure; or
    (B) a vehicle;
    to be evacuated;
    commits intimidation, a Class A misdemeanor.

    He went before the judge and they diverted this charge for 2 years. The KSP website states that you may be disqualified for a CCDW if you have been convicted of,
    Terroristic threatening in the third degree within the past three years.
    or
    Conviction of a misdemeanor crime of domestic violence

    Same charge but different wording for different states???????????
    Also, he was not convicted but diverted. Would that make a difference if he applies for his CCDW?

    His divertion runs up in November of next year, but he would like to go for his CCDW now but doesn't want to waste the money if they are going to kick it out. I'm stumped
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    Quote Originally Posted by self preservation View Post
    A legal question similar to yours was ask of me about a week ago and I had no idea what to tell the guy. Here's the story. What do you all think?

    A friend of mine that lives in Ky is wanting to try for his CCDW. But a few months back the girl he was dating decided it wasn't working out between the two and she moved back to Indiana where she was from.

    One night they are on the phone (he was in Ky and she was in IN) and an argument broke out. Long story short she filed a police report on him (in Indiana of course) and he was later charged with Indiana IC 35-45-2 1
    Intimidation, that states,
    Sec. 1. (a) A person who communicates a threat to another person, with the intent:
    (1) that the other person engage in conduct against the other person's will;
    (2) that the other person be placed in fear of retaliation for a prior lawful act; or
    (3) of causing:
    (A) a dwelling, a building, or another structure; or
    (B) a vehicle;
    to be evacuated;
    commits intimidation, a Class A misdemeanor.

    He went before the judge and they diverted this charge for 2 years. The KSP website states that you may be disqualified for a CCDW if you have been convicted of,
    Terroristic threatening in the third degree within the past three years.
    or
    Conviction of a misdemeanor crime of domestic violence

    Same charge but different wording for different states???????????
    Also, he was not convicted but diverted. Would that make a difference if he applies for his CCDW?

    His divertion runs up in November of next year, but he would like to go for his CCDW now but doesn't want to waste the money if they are going to kick it out. I'm stumped
    Did she record the conversation or something? Does he have any previous convictions on his record? I can't believe this would have even made it to a judge without some sort of evidence that the crime was committed. Did she have witnesses, or did he admit to saying something he shouldn't have?
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    "Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined."-Patrick Henry; speaking of protecting the rights of an armed citizenry.

  24. #24
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    Quote Originally Posted by gutshot View Post

    Arrests and incarcerations are public records and as such are open to viewing, copying and publication by the public. Court actions, convictions, dismissals and acquittals are also public records. More and more public records are being made available online. This is as it should be. The public has an interest in knowing what the government is doing and public record are open to public scrutiny by law. We don't want our government operating in secret. How some people use these public records may be open to discussion and differing opinions of its value or moral correctness. It is a fact of life that a person's (especially a public figure's) arrest might make front page news, but his acquittal may get no mention. Both records should be and are (usually) available to those who want to know.

    I agree 101% that this information is and should be public information. I have no problem with that at all. However, being public information does not mean that it necessarily must be or should be available on a website for all eternity. As people with two legs (most of us), we can walk ourselves down to the courthouse and obtain that information if we want or need it. I'm fine with that.

    By the standard you're suggesting, we could also encourage our govt to broadcast all arrests (even without convictions) on public tv, on billboards, on door hanging flyers at every house. Sure, we could do that and it would be legal, but it's be a pretty pathetic and disrespectful thing to do. Just because it's legal to do a thing does not mean we should do the thing. Just because we can print all arrests on toilet paper doesn't mean we should. It's perfectly appropriate and acceptable for this information to be publicly available.

    As a similar example, voter registration information (which includes name, address, social security, etc.) is public information (at least the last time I checked which was several years ago). Should that information also be freely available on a website? If you want to know your neighbor's SSN, should you have the *easy* ability to just go to SpyOnYourNeighbor.gov and look up his SSN by his name? Once again, which this information is and should be available, I'm not sure we necessarily need to drop it onto the internet. Having it available at the courthouse without being online is perfectly acceptable.

    I have no problem with the current inmate population being online. You can easily look to see who has been picked up in the last 48 hours or you can see information on the current population, but you can no longer see if someone was arrested ten years ago unless you really want such information and make the effort to just go get it downtown.

    With that said, CONVICTION information should indeed be online. If someone is convicted of DUI or theft or for drugs or whatever, I would encourage a searchable database. If you don't want to be databased and indexed, then don't get arrested and convicted.
    [FONT=Verdana]”Gun control is like trying to reduce drunk driving by making it
    tougher for sober people to own cars.”
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  25. #25
    Regular Member self preservation's Avatar
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    Quote Originally Posted by KYGlockster View Post
    Did she record the conversation or something? Does he have any previous convictions on his record? I can't believe this would have even made it to a judge without some sort of evidence that the crime was committed. Did she have witnesses, or did he admit to saying something he shouldn't have?
    Not recorded. Other than this charge he record is clean. The LEO that took the complaint wrote up a report and the state took it. He probably could have beat it but he didn't want to have to travel back and forth from KY to IN due to his job and plus the cost he would have to pay to beat the charge. So he agreed to a 2 year divertion instead just to make it all go "away"

    But I have no idea if this would keep him from getting his KY CCDW or not.
    “The only thing necessary for the triumph of evil is for good men to do nothing.” Edmund Burke

    self-pres·er·va·tion (slfprzr-vshn)
    n.
    1. Protection of oneself from harm or destruction.
    2. The instinct for individual preservation; the innate desire to stay alive.

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