The Sad and Tragic Case of Sandra Bland

Sandra Bland was laid to rest this past weekend . Ms. Bland's arrest and death has been widely reported in the media. Questions linger on why she was arrested and the circumstances leading to her death. Coming back from court her story was featured on the radio program On Point . CNN ran a  video on a citizen's rights during a traffic stop. What are a citizen's rights during a traffic stop in Tennessee ?

Once stopped for a traffic violation a citizen must display the following;

  • A driver's license.
  • Proof of vehicle registration.
  • Proof of automobile insurance.

Can the police order you out of your car ?

Under the U.S. Supreme Court case of Pennsylvania v. Mimms,  the court embraced the concept that a officer could order a citizen out of a car . The Tennessee Supreme Court in Donaldson ruled that a police officer could order a citizen out of their car during a traffic stop.

Can a Tennessee police officer arrest you for a traffic offense ?

The quick answer is yes. All state traffic citations are Class C misdemeanors . Class C misdemeanors are punishable by up to 30 days in jail. In reality , most police officers in Tennessee will issue a criminal citation in lieu of an arrest. Criminal cases may be dismissed if a police officer issued an arrest warrant instead of a criminal citation.

Here is the teaching point. Don't fight your case in the street. Police have an advantage on the street. No pesky criminal defense lawyers are present. No judges are present. The police have weapons, tasers, and handcuffs. police are always worried about their safety. Treat police officers with respect. Most of the police officers will treat you with respect if you do likewise.

Rest in peace Ms. Bland.

New California Law Allows Illegal Residents To Get License

 

After California enacted a new law earlier this year, illegal residents became eligible to obtain a driver's license. The California Department of Motor Vehicles reported over 397,000 drivers licenses were issued to illegal residents for the first six months of this year. In Tennessee , a illegal resident is prohibited from obtaining a Tennessee driver's license.

Tennessee needs to follow California's example. Thousands of illegal residents live and work in Tennessee. There exists a double standard. Businesses hire illegal residents to work. Yet, it is not acceptable to allow them to apply for a license. Take a visit to Court Room 1A in the A. A. Birch Building in Nashville where the criminal citations are handled.. You will see the courtroom flooded with folks. Their only crime is driving without a valid Tennessee license. Police officers issue criminal citations. Judges, public defenders , prosecutors , and translators work to process the cases. Resources wasted.

Supporters of the California law argue that allowing illegal residents to apply for a driver's license makes the roads safer. One has to pass a test and take a driving test. Now, folks drive without any testing. If one had a license , maybe the streets would be safer.

I know it is just wishful thinking, but it is time the Tennessee Legislature tackles this issue. I know it is unpopular with certain segments of the population. It is the right thing to do.

 

Continuing Legal Education for DUI Lawyers

Last week , I was returning from Chicago where I gave a presentation to the folks that attended the DUIDLA summer session. Here is a short listing of some of the  topics that were presented.

  • Cross-examination
  • Canadian Travel When One has A DUI Conviction
  • FAA Reporting and Pilot Medical Clearance Issues
  • Crime Lab Discovery
  • Blood Alcohol Defenses
  • Challenging Breath Test Results

These were just a sampling of the topics presented. The point is does it matter what continuing education courses (CLE) that your DUI lawyer takes. All lawyers in Tennessee are required to take 15 hours of CLE each year.  Some lawyers take what ever course is the cheapest. It does not make any difference what course they take. It could be divorce law , probate law or any other course. Another method of taking classes is to take any class in order to meet the deadline. I knew of one lawyer who took an Admiralty course just to comply with the deadline. Some lawyers take CLE courses strictly in their field of practice in order to keep abreast of the changes in their field.

Hiring the right DUI lawyer is an important decision. One of the questions you might ask is what course do you take to satisfy your CLE. Do you want a DUI lawyer that takes courses that keep them up to date on the new trends in DUI defense or do you want a lawyer who takes courses in some random area of the law. One thing is certain , the assistant district attorneys who are prosecuting DUI cases across Middle Tennessee are being trained in DUI prosecution. Maybe you should hire a well trained lawyer as well.

 

Books Law Students Should Read

I came across an article in the Washington  Post by law professor Michael Krauss. The article is simply a list of books to read before you enter law school. It might also cover practicing lawyers since I have only read two of the books on the list. Lawyers get trapped into how they think about a case. Mr. Krauss opines this list is an overview of the values and challenges of the legal profession. Here is the list. You can go to the link to get a summary of each book.

  1. Truman Capote." In Cold Blood."
  2. Brooke Goldstein and Aaron Eitan Meyer. "Lawfare:The War Against Free Speech."
  3. Harper Lee. "To Kill a Mockingbird."
  4. Karl N.Llewellyn , "The Bramble Bush."
  5. Herman Melville, "Billy Budd,Sailor."
  6. Publius ,"The Federalist Papers."
  7. Patrick J.Schiltz,"On Being a Happy , Healthy and Ethical Member of an Unhappy , .Unhealthy , and Unethical Profession
  8. B. F. Skinner , "Walden Two ."
  9. Barry Werth , "Damages."

 

Confession . I have only read two books on the list. I read Billy Budd my junior year at Castle Heights Military Academy . I finally got around to reading To Kill a Mockingbird on it's 50th anniversary .It looks like I might visit Amazon later today .

 

 

 

My Day at the Rocky Mountain Laboratory

I spend last week at a continuing legal education conference in Ft .Collins , Colorado. The conference was the brainchild of Wisconsin DUI lawyer Andrew Mishlove and sponsored by the National College of DUI Defense. The conference had two components . First , it taught some basic science skills on blood alcohol testing. Secondly , it taught trial skills on how to communicate the science during trial. During the training , I had the opportunity to visit the Rocky Mountain laboratory . The Rocky Mountain Laboratory is a working forensic laboratory in Ft. Collins. I thought I would share my observations from my visit.

The tour was broken down into five stages with instructors at each stage to explain what was going into each critical step in analyzing a blood alcohol sample.

  • Receiving the Blood Alcohol Sample.

The first step in the forensic toxicology lab is to properly document the sample when it arrives at the lab. A blood alcohol sample can be dropped off at the lab or mailed into the lab. The receiving clerk takes in the sample. The clerk must create a paper trail to maintain the chain of custody, assign the blood sample a unique lab number and takes steps to make sure the sample belongs to the right person. At the Rocky Mountain Lab , the receiving clerk makes a visual inspection of the sample to make sure the seal was properly in place and to ascertain if the blood had clotted.

  • Pipetting  

The next step is the blood must be pi petted into a vial for testing. A pipette is simply a tool to measure exact portions of a blood sample to be placed into a vial. Only a portion of the blood sample is used for testing.

  • Preparing the Sample

Once the sample is pi petted, it is ready to be prepared. You are probably asking yourself why does it need to be prepared ? All blood alcohol samples usually have propane added to the vial as a n internal standard. Also,  a salt solution is added.The sample was placed into ma numbered slot to make ascertain the lab tested the right sample.

  • Running the Sample.

After the sample is prepared , it is ready to be tested using a head space gas chromatography with flame ionization detection. The machine will test numerous samples. The first step is to place all the samples , controls , calibrators , and blanks onto a tray or carousel. The samples are then tested by the gas chromatography. The samples are reported using a computer software program. The machine does all the testing.

  • Maintenance.

The gas chromatography machines don't run forever without some maintenance .Before the sample is vaporized by the flame ionization, the sample is run though capillary columns. The capillary columns need to be clipped and replaced on a periodic basis.

This is just a brief overview of my day at the Rocky Mountain Laboratory  allowing some folks to visit the lab. For some reason , the Tennessee Bureau of Investigation does want to give me a tour. I would highly recommend this course for all DUI defense lawyers

 

My First Visit To The Van Buren , Tn Courthouse

I made a court appearance today in Van Buren County Tennessee today. I have appeared in all Middle Tennessee counties with the exception of Cannon County Tennessee . It was a beautiful drive especially between Sparta and Spencer. Here is a little information on the general sessions court procedure.

General Sessions Court in Van Buren County happens on Thursday. After you have been arrested , your first court appearance will be in a week or so from the date of arrest . The first court date is not that big of a deal. No police officer is present . If you need time to hire a lawyer , the court will grant you a continuance . At the first court date , you may be able to settle the case via a plea bargain . The second court will be critical. The officer is subpoenaed and you must be ready to deal with your case.

One side note , Highway 111 is often a shortcut for folks traveling to and from Bonnaroo . So ,obey the speed limit and travel safely.

Williamson County Practice Update

This post is a practice update from Williamson County , Tennessee . It appears the courts may not accept plea bargains in cases involving periodic confinement. Periodic confinement is simply allowing a defendant to serve their jail sentence over a period of time rather than to serve the sentence straight.  Periodic confinement is authorized by statute found in T.C.A. 40-35-307 .

An example is that the government wants a sentence of ten days , but during the plea bargain process , the parties compromise and agree to the ten day sentence to be served on weekends. One purpose of the periodic confinement is to save someones job.

Most counties allow some types of periodic confinement. I don't know the policy reason for denying periodic confinement. It does not apply in cases where there is a mandatory minimum such as DUI second or DUI third charges . The takeaway is to always be aware of local customs . Even though the law of Tennessee is uniform from Memphis to Knoxville , the application changes from county to county.

Stuff Your DUI Lawyer Should Know

I enjoy helping other lawyers in their DUI cases. DUI defense is a complex area . The law changes constantly. I remember when I started and the help that I received. A DUI lawyer should know some basic stuff.

One thing a DUI lawyer should know is what the per se limit of the blood alcohol concentration to convict one of driving under the influence in Tennessee . A lawyer with a paying client did not know the answer to that basic question. The blood alcohol limit needed to sustain a DUI conviction is .08 %.

 

To follow up on this topic , I will post the basic concepts everyone should know about DUI defense.

Why Tennessee District Attorneys Should Provide Discovery In general Sessions Court

Under Tennessee law, one accused of a crime is entitled to request discovery if your case is in circuit or criminal court . Rule 16 of the Tennessee Rules of Criminal Procedure only apply in circuit or criminal courts . The rule requires the state to provide certain types of evidence to the defense if requested. A request for discovery does not apply in the general sessions courts where most cases begin.

I don't know why the Tennessee Supreme Court limited the scope of discovery in Tennessee courts. Here is a recent case study of a aggravated assault case that I recently handled in Rutherford County ,Tennessee . It illustrates the need for discovery in all courts.

I head down to General Sessions Court in Smyrna , Tennessee ready for a preliminary hearing. Based upon my early investigation ,it was a case of credibility of who do you believe . Luckily , a seasoned assistant district attorney was assigned to the case. In discussing the case prior to the hearing , I learned there were some third party witnesses .The assistant district attorney provided a copy of all statements including the Jencks statement of the complaining witnesses. The ADA was not required to give me these statements by rule. I was able to review the statements which changed my mind about the case.

What happened next ? The aggravated assault charge was amended to simple assault. No felony.No  jail. The State of Tennessee resolved a case without months of needless litigation because the ADA  realized that disclosure of the evidence might be the best route to take.

The takeaway is the state should disclose discovery in any criminal proceeding. I am not suggesting a wholesale discovery request but statements , reports , and videotapes would streamline the process .It probably would lead to a fair criminal justice system.

I Am Going To Kill You

Last week Vanderbilt basketball coach Kevin Starlings made ESPN Sportscenter for a remark that Stallings wish he would never have yelled. Right after Vanderbilt beat Tennessee , a player made some gestures that could be construed as unsportsmanlike . Stallings yelled at the player after the game " I am going to kill you". It happens all the time . One might make that statement not meaning any harm. However , could Coach Stallings been arrested for that threat ?

Under Tennessee criminal law , one can be charged with a simple assault under three different theories. Tennessee Code Annotated 39-13-101 sets forth the following elements of simple assault.

39-13-101. Assault.

 

(a)  A person commits assault who:

     (1)  Intentionally, knowingly or recklessly causes bodily injury to another;

     (2)  Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or

     (3)  Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.

Under the facts of the Stallings incident , (2) could be applicable .The key wording is did Stallings intend or knowingly cause the player to fear imminent bodily injury. The answer to the inquiry is know. Stallings was upset and said some things he regrets. Let's look at whether threats could get one arrested. You ball up your fist and yell at someone that you are going to punch them in the nose.In this example there are some other facts that may cause the person to fear getting hit . Also , the threats can't be remote like a threat by text or phone. No one is in close proximity .

 

The big takeaway is be careful what you say and yes you can get arrested for making verbal threats in the right situation.