Can I Get Jail Credit For Alcohol Treatment ?

Under Tennessee's DUI laws ,  you can get jail credit for alcohol treatment on second offense DUI charges , third offense DUI charges , and felony DUI charges. . On July 1, 2014 , new laws went into effect granting jail credit for alcohol treatment on all multiple DUI charges. Before July 1.2014. one could only obtain jail credit on DUI second charges.


Here is the deal ;

  • On second offense DUI charges , a person convicted of a DUI second offense can get up to twenty days jail credit for inpatient treatment or receive one day of jail credit for every nine hours of intensive outpatient treatment up to twenty days.
  • On a third offense and felony DUI charge a person convicted of these offenses can receive up to fifty-five days of jail credit.
  • A alcohol assessment is required.

Make sure you want to go to treatment before you sign up. Going to alcohol treatment just to help your case is not going to be beneficial. Go because you want to or need to for yourself. The laws are a little complex. Consult with your lawyer before you start. Sadly , you can not get jail credit for treatment on a first offense DUI.

Buzzed Driving Does Not Equal Drunk Driving

As I was driving home from Memphis this past weekend , I heard quite a few radio spots . The theme of the ads was that " Buzzed Driving Equals Drunk Driving ". The ads are part of a campaign by the Tennessee Governor's Highway Safety Office (GHSO) . The ads are designed to increase awareness of drunk driving . It occurred to me there may be a second purpose of the ads .

The concept of buzzed driving equals drunk driving creates a perception in potential jurors minds of a lower standard of proof in a criminal case . In order to prove a person guilty of DUI , the evidence must be proved  beyond a reasonable doubt . The concept of buzzed driving is legally inaccurate . In order to convict a person of DUI in Tennessee , the State of Tennessee must prove the elements contained in T.C.A. 55-10-401. The main part of the definition is as follows;

while “under the influence of any intoxicant, marijuana, controlled substance, drug, substance affecting the central nervous system or combination thereof that impairs the driver's ability to safely operate a motor vehicle by depriving the driver of the clearness of mind and control of himself which he would otherwise possess” or while “the alcohol concentration in the person's blood is .08% BAC......

The key part is depriving the owner of clearness of mind .Nothing in Tennessee's drunk driving law mentions buzzed driving. So are the ads PR or propaganda ?

Today , I heard another ad in which the director of the GHSO Kendall Poole tells the listeners that you should not drink and drive period. This sends the message of zero tolerance of alcohol which is clearly not the law of the land.

One last fun fact. The Governor's Highway Safety Office is 100% federally funded to the tune of 24.5 million dollars.

Abolishing the Grand Jury Part II

In a follow up to last week's post on abolishing the grand jury process in Tennessee , Grits for Breakfast reported on a proposed bill  in Texas on abolishing the grand jury in Texas. The grand jury process may be in jeopardy .

Should Tennessee Abolish the Grand Jury ?

Over the last two weeks , there has been more stories on the grand jury process due to two high profile cases. It got me thinking about the grand jury process in Tennessee . Should it be abolished ?

The grand jury was established to be another check to determine if there was sufficient probable cause to charge a citizen of a crime. There are two checks on that currently without the grand jury . First , a magistrate determines probable cause when the arrest warrant is issued. Secondly , the general sessions judge makes a determination of probable cause after a preliminary hearing.

Presenting the case to the grand jury is a unnecessary step. Once the general sessions judge finds probable cause just set the case on the docket in circuit or criminal court. No delays. In Davidson County , a case can languish for months until the case is presented to the grand jury. From my perspective the grand jury is a rubber stamp for the district attorney . It's secret. The defense cant present it's case . In some cases the witnesses don't even testify.

Abolishing the grand jury would avoid direct presentments . A direct presentment is where the district attorney takes a case directly to the grand jury bypassing a arrest warrant and a preliminary hearing. It is routine in some cases for the district attorney to take a case to the grand jury. Sex crimes are the most common example. Here is an example of a grand jury report from Nashville. Maybe it's time to take a fresh look to determine if the grand jury process is really needed.

The Duties of a District Attorney in a Tennessee Grand Jury

The grand jury process is but one of the checks and balances on the power of the government to make sure a criminal prosecution is fair. By now , everyone is familiar with the grand jury in Ferguson , Mo. This week, I watched some of the press conference by the prosecuting attorney. Practicing in Tennessee much of what happened is foreign under Tennessee jurisprudence.

NPR reported  that sixty witnesses testified over seventy hours. In a rare move , the prosecuting attorney Robert McCulloch released all the evidence including the transcripts. He even presented exculpatory evidence to the grand jury. The result was that the grand jury failed to return an indictment. He even questioned the witnesses.

Rule 6 of the Tennessee Rules of Criminal Procedure sets out the powers and duties of the district attorney and the members of the grand jury. Here are some key differences between the Ferguson grand jury and the grand jury process in Tennessee ;

  1. In Tennessee , the district attorney has no authority to subpoena witnesses to appear before him for investigative purposes. See Graves v. State.
  2. The district attorney has no power to call witnesses before the grand jury. See Warner v. State.
  3. The district attorney's sole role is to give legal advice .See Rule 6(h) of the Tennessee Rules of Criminal Procedure.
  4. The grand jury may refuse to hear testimony of witnesses brought before it by the district attorney. In fact , a witnesses may testify from hearsay evidence. A longtime practice of the Davidson County District is to have the district attorney's investigators testify rather than the live witnesses.
  5. It is proper for the grand jury to record the testimony but not the district attorney.

The bottom line is that the grand jury process differs from state to state. What happened in Ferguson , Mo. would never happen in Nashville , Tn.



How Does The Tennessee Bureau of Investigation Test Marijuana ?

Most folks have a different idea of what forensic labs do in the testing of evidence. We think of lab coats and complex scientific tests like we see on CSI. It is not always true. if your arrested for possession for marijuana in Tennessee ,  the evidence seized may  eventually be tested by one of the Tennessee Bureau of Investigation (TBI)  crime labs. How do they test marijuana for use in the court room ?

First , marijuana is examined under a microscope to determine botanical identifications  The lab person is looking for trichomes . Some organizations suggest there must be training in botanical identifications in order to make these findings. The data should also be reviewable in evaluating test reports. For example , a picture taken of the examination. Easily done with a digital microscope , but not done by the TBI .

The next test is the use of the Duquenois/Levine test. It is simply a reagent that is put on the marijuana and then chloroform is added. It is then supposed to turn purple. Again ., no photo is taken. That is the end of the testing that the TBI does. Is there more to the story ?

The National Academy of Science in their book  "Strengthening Forensic Science in the United States"  recommends those two tests in addition to a thin layer chromatography test. Guess what ? The TBI does not use that test to my knowledge . The Scientific Working Group for the Analysis of Seized Drugs recommends another layer of tests to confirm if a substance is marijuana. The chair of the core committee happens to work for the Drug Enforcement Administration .

The question is why does the testing for marijuana in Tennessee does not comply with the minimum standards set by two scientific groups ? Indifference. No concern of scientific accuracy. You fill in the correct answer.


When Should a Lawyer Request a Change of Venue ?

Stacey Barchenger  reported on last Friday's hearing in the Vanderbilt rape case. One defendant asked for a continuance in order to obtain an expert witness and one defendant requested the jury to be sequestered. Both motions were denied. The case is set for November 3rd ,2014. I watched a little bit of the hearing on Friday waiting on my case. It made be think of a motion that should have been filed. I don't know if the defense filed a motion for a change of venue.

The Vanderbilt case has been in the news since the story broke. The case had all the ingredients for a high publicity case. Big university , horrible rape, football players, and a popular head coach were mentioned in the press .Can a criminal defense lawyer request a change of venue ?

The short answer is yes. Rule 21 of the Tennessee Rules of Criminal Procedure allows a person accused of a crime to request the court to change the venue of the case . venue is simply where the case will be tried. One must prove the accused it is unlikely to get a fair trial because of undue excitement against the defense . Getting a fair jury may be difficult due to the news reports.

Tennessee courts have set out 17 factors that the court must consider when granting a motion for a change of venue . In my career , I have only filed one motion for a change of venue which was granted .

The trial starts today.

Intoxication as a Defense to Rape

One of the former Vanderbilt Football players accused of rape appears to be ready to put on a defense of  intoxication as a defense. The defense for Brandon Vadenburg has filed a report of an expert where they assert that alcohol  effected his mental state.

Tennessee Code Annotated 39-11-503 spells out the defense of intoxication It is divided into voluntary intoxication and involuntary intoxication .Voluntary intoxication does negate the mental element of intentional conduct. Only involuntary intoxication is a defense to assert that a person lacked substantial capacity either to appreciate the wrongfulness of the person's conduct or the conform that conduct to the requirements of the law.

The intoxication defense may be used to negate one of the elements in the aggravated rape counts. The state must prove that force or coercion was used or the defendant knows or has reason to know that the victim is mentally defective , mentally incapacitated or physically helpless.





 I have used this defense in a first degree murder case to negate intent. However , you must own the fact that it did occur. In my case , the jury returned a verdict of reckless homicide .

The trial starts on November 3rd. Let's see what happens.





Amendment 2 Where Do You stand ?

Early voting has started in Tennessee . One of the measures on the ballot is a change to Tennessee's constitution. Currently , Tennessee's constitution requires that all Supreme Court Justices shall be elected. When the amendment on judges was written in  1870 , big money from out of state was not around to influence elections . In 1971 , the state legislature passed the Tennessee plan which has withstood constitutional attacks. In an effort to clarify the issue , Amendment 2 is on the ballot this November.

The amendment reads as follows:

Shall Article VI, Section 3 of the Constitution of Tennessee be amended by deleting the first and second sentences and by substituting instead the following:

Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article.

 In Sunday's Tennessean , Governor Haslam and Governor Bredesen issued a joint article urging the passage of Amendment 2 . Amendment 2 is endorsed by a wide range of groups from the Tennessee Bar Association to Farm Bureau Insurance. Tennessean writer Frank Daniels III takes the opposite approach in it is denying the voters right to elect the judges.

I don't like Amendment 2 but it is the lessor of two evils. A general election of the Supreme Court opens the floodgate of special interest groups spending obscene amounts of money to influence Tennessee judicial decisions. While Amendment 2 allows the executive branch and legislative branch to pick our appellate courts and Supreme Court.

Where do you stand ? Please post a comment here. All comments will be posted .





Interrogations of Juveniles

Jan Hoffman of The New York Times reported on the issue of juveniles not understanding their rights when questioned by the police. The  studies show that  a juvenile is not developmentally ready to make decisions that will impact their life forever. One common misconception is that the parents must be present when their child is questioned by the police so the parents can protect their child. It  is simply not the case. In fact , most police detectives go to the child's school to question the child. No parents are present and school administrators are compliant.


“Adolescents are more oriented to the present, so they are less likely than adults to be thinking about the future consequences of what they’re saying,” said Laurence Steinberg, a professor of psychology at Temple University who writes about teenagers in the justice system and was not involved in this study.

Teenagers, he added, are also less likely than adults to know that the police can lie during interrogations.

“The police often promise kids things in the present. ‘If you just tell me you did it, you can go see your mom,’ ” he continued. “And because the brain’s reward systems are hypersensitive during adolescence, that immediate reward of confessing will trump the thinking of, ‘What will happen when I come back to court in a month?’ ”

The research shows that juveniles have a limited capacity to understand their constitutional rights to remain silent .What should you tell your child to do if they are questioned by police ?

Dr. Steinberg suggests that parents tell teenagers: “If you’re being questioned by police because they think you’ve done something bad, say you need to talk to your parents first.” Parents can decide whether to call a lawyer.


The American Psychological Association has proposed some guidelines for interrogated juveniles:

  • Limiting the length of the interviews.
  • Videotaping the complete interview.
  • Make sure a lawyer is present.
  • Proper training in order to avoid false confessions.


In the adult criminal system , we have seen numerous examples of people being convicted on false confessions are later being exonerated by DNA evidence. Juveniles and children are most vulnerable. Protections must be in place to protect the rights of those accused of a crime.