Why Corey Batey Had To Testify

One of the bedrock principles of our criminal justice system is the defendant does not have to testify in his defense. Corey Batey had to testify for two reasons

  1. Batey had to say the two magic words. I'm sorry.
  2. Batey had to advance the defense theory of his intoxication.

One of the elements of aggravated rape in Tennessee is that the government has to prove that the defendant knows or has reason to know that the victim is mentally defective ,mentally incapacitated or physically helpless. Batey testified that he was" drunk out of his mind ".

The rest of the closing arguments will start in minutes. We will soon see if the jury believes him.

Why Corey Batey Had To Testify

One of the bedrock principles of our criminal justice system is the defendant does not have to testify in his defense. Corey Batey had to testify for two reasons

  1. Batey had to say the two magic words. I'm sorry.
  2. Batey had to advance the defense theory of his intoxication.

One of the elements of aggravated rape in Tennessee is that the government has to prove that the defendant knows or has reason to know that the victim is mentally defective ,mentally incapacitated or physically helpless. Batey testified that he was" drunk out of his mind ".

The rest of the closing arguments will start in minutes. We will soon see if the jury believes him.

Changes to Nashville's Domestic Violence Docket

Davidson County District Attorney Glenn Funk recently proposed a change in the procedure for docketing misdemeanor domestic violence cases once the cases are bound over to the grand jury from general sessions court . Currently, misdemeanor domestic violence cases are assigned to the criminal courts based on the date of arrest . General Funk made the proposal to the circuit court judges and criminal court judges last week.

The plan is to assign all misdemeanor domestic violence cases to  Judge Amanda McClendon . The cases will be presented to the grand jury within 30 days of being bound over by the general sessions court judge. It would create a  rocket docket with domestic violence cases getting priority over the DUI cases Judge McClendon is currently assigned.

During his campaign for District Attorney , General Funk proposed cutting the time between when the case is bound over to the arraignment . His office is doing that by actively settling cases on information agreements. The question is whether the government should shorten the time an accused spends in jail to get his or her case back into court. For those charges with a crime in Nashville, Tn. that can't afford a bail bond , a person sits in jail until the cases is settled or tries. It could be months until their next court date. should the District Attorney's office focus on presenting serious felony cases to the grand jury first. The district Attorney's office controls when each case is presented to the grand jury. I took a informal poll today among a few fellow criminal defense lawyers on the turnaround time between general sessions court and ones first appearance in criminal court. The general consensus is the wait is four to five months. Granted , that time is in large part based on the office policy in the prior administration.

Who pays for the cost of housing the accused while waiting for trial or to settle their cases ? The citizens of Davidson County pay the cost . Jail fees are assessed as court costs once the case is concluded. It would be a interesting fact of the amount of jail fees that are actually collected.

What Can We Learn From The Vandy Trial ?

The Vandy trial is now well into its second week of testimony. It is a story of college students , alcohol ,  sexual assault and rape on a young student who was passed out. You look at the photo of the defendants and they look like young college kids. They were football players at a top ranked school . So what can we learn from this case.

Maybe we should use this trial to encourage a frank discussion with our children about sexual assault and alcohol. It is not morally acceptable to commit a sexual assault a person who was passed out. This behavior seems to be rampant from the Vandy case to the high school football players in Steubenville , Ohio. Maybe we should talk to our kids. Use this case as a teaching tool to show that this type of behavior cannot be tolerated. Would you rather have this talk or visit your child in prison.

Fair DUI Flyer and Tennessee DUI Roadblocks

The Fair DUI Flyer created quite a stir recently. A copy of the image is at the top of the post.  Recently , someone used the flyer and entered  a DUI checkpoint using the information in the flyer. The basic concept is that you put your driver's license in a bag and stick it on the outside of your window. When you roll up to the DUI check point , you don't roll your wind down so the police can't smell alcohol.  The video of this tactic went viral.Cute trick. I imagine they got the idea from a DUI checkpoint video from Murfreesboro, Tn which was videoed and the citizen did everything a lawyer would suggest.

The Fair DUI Flyer takes it a step further by putting the documents on the outside of the window. In theory , the police have access to the required documents therefore no interaction is required. How would the Fair DUI  Flyer play out under Tennessee law ?

Tennessee Code Annotated 55-50-351 requires a driver's license shall display the license on demand when operating a motor vehicle . It appears the Fair  DUI Flyer complies with Tennessee law depending on your definition of display.  Tennessee motorists also has to display proof of insurance and valid registration.. One could put the documents in a bag displaying the information. My guess is it would be dropped in the plastic baggie and the police office would ask you to get it out.

Here is my thought on the Fair DUI Flyer . I wouldn't try it out on the road .  It is cute for a video trick but in the real world putting your license taped to your window is asking for a trip to the jail. One takeaway is to have your registration and proof of insurance in a clear plastic envelope so you can easily give it to police. remember, don't photo copy your driver's license and put it in the bag too. It is a crime to display a photo copy of your license in Tennessee.

 

Oklahoma May Move Closer To Prohibition

I planned to follow up to yesterday's post on defending non-citizens. However , I read about a proposed law in Oklahoma that made me change my mind. An Oklahoma senator has proposed a bill to prohibit those convicted of driving under the influence (DUI) from buying alcohol. Citizens convicted of DUI would be issued a new identification card that would state " Alcohol Restricted".

The real penalty would be on those businesses or individuals who provided alcohol to those with a alcohol restricted identification. It would be a felony for someone to "knowingly deliver ,sell or furnish alcoholic beverages to those who have been ordered to abstain from alcoholic beverages. The proposed law possibly creates a nightmare .

Imagine serving someone a beer at a tailgate to someone who has been ordered not to drink. Restaurant owners checking every patron's identification.  How can a state enforce this type of law. New Mexico considered a very similar law in 2013 which was later abandoned.

Sometimes , I wonder if state legislators think about crazy laws to propose in hopes of just getting reelected . Legislators need to show some common sense. Soon everything will be illegal in the effort to combat law breakers.

Representing Non-Citizens and Obama's New Proposal

 

 

In November 2014 , President Obama announced that t his administration would not deport certain undocumented persons who are the parents of U.S. citizens or lawful permanent residents if they qualify for Deferred Action for Parental Accountability (DAPA). Since Padilla , it has been extremely important for a criminal defense lawyer to be cognizant of the immigration consequences on the outcome of a criminal case. The Collateral Consequences Resource Center  recently posted on DAPA . The post also contained a link to a practice advisory for criminal defense lawyers in dealing with this issue. I highly recommend downloading the practice advisory prepared by the National Immigration Project.

Without  getting into the who is qualified for DAPA , lets look at what criminal offenses disqualify one from the program.

  • A felony conviction.
  • Three misdemeanor convictions.
  • Conviction of one significant misdemeanor.

The enforcement memo defines a significant misdemeanor as ;

  • Domestic violence
  • Sexual abuse or exploitation
  • Unlawful possession or use of a firearm
  • Drug sales
  • Burglary
  • Driving under the influence of alcohol or drugs
  • Sentences of 90 days or more ,excluding suspended sentences

 Criminal defense lawyers must master criminal law , criminal procedure and evidence . Now , we must know immigration law or consult with immigration lawyers.

Tomorrow , I will be discussing the strategies in dealing with these new problems.

 

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Report a Impaired Driver Get a Hundred Bucks

Another sign that America is turning into a police state .Since  2001 , Palm Beach County , Florida has had in place a Mobile Eyes program . The basic concept is a person can report a drunk or impaired driver by calling 911 . If a DUI  arrest is made , the person that makes the call gets a hundred bucks. No conviction is required .

Our country now pays citizens to report impaired driving. Need some cash to pay off your Christmas bills , sit outside a parking lot by a sports bar. Under Tennessee law , an anonymous person can report an alleged DUI driver. Very little corroboration is required.

First , no one is in favor of folks driving drunk. It is the notion of turning everyone into a policeman that is troubling to me.

Here is one way to avoid a DUI arrest this New Year's Eve in Nashville, Tn. , take advantage of the sober ride program sponsored by the Davidson County Sheriff's office.

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.