Nashville Criminal Law Report : Nashville DUI Lawyer & Attorney : Rob McKinney Law Firm : TN Criminal Defense, Domestic Violence : Cheatham, Davidson, Montgomery Counties

   Rudy Giuliani's daughter Caroline appeared in a New York courtroom Tuesday.She was charged with shoplifting some cosmetics from a store. Ms Giuliani received a plea under an Adjournment in Contemplation of Dismissal (ACD). Once she performs some public service work likely to be at a sanitation garage ,her criminal case will be dismissed.

In the General Sessions Courts for Nashville Davidson County Tennessee , there are similar procedures to handle some petty crimes.Shoplifting , simple possession of drugs and various other criminal charges can be disposed of like Ms.Giuliani's case. The disposition in Nashville courts is referred to as an under advisement plea. Usually a plea bargain is reached to do public service work or some other type of project , a plea is entered but disposition is reserved if you do what you are supposed to do case dismissed. You fail to do it .Jail and a permanent criminal conviction will be on your record. These types of dispositions are not just for the rich and famous , but are available to the average citizen. Ask your attorney if you are eligible for this type of plea bargain.

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As summer fades, the Labor Day weekend is upon us. Motorists and boaters will be out in full force in the Volunteer State this weekend. Holiday weekends also mark an increased effort by the police for DUI enforcement and more boat checks by the Tennessee Wildlife Resource officers.Firs , I encourage every one to drive safe and drink responsibly.. However , the DUI roadblocks have been announced.

In the State of Tennessee , it is expected the police will set up over 200 roadblocks and spend thousands of dollars running TV ads on public awareness.  Mt Juliet Police announced a series of roadblocks they are conduction in Wilson County Tennessee.

DUI checkpoints are allowed under the Tennessee Constitution provided the particular DUI roadblock is established and operated under predetermined operational guidelines and supervisory authority that limits arbitrary discretion of law enforcement officers.

I hope every one has a safe and happy Labor day this weekend.

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As I continue to determine what direction this blog should take., I am going to add a new category. The Tennessee Criminal Law Dictionary.

What is a Plea Bargain ?

A plea bargain is the process where the District Attorney and the lawyer for the accused tries to work out an agreement to settle the criminal charge.It usually involves the accused pleading to a lessor crime or a reduced jail sentence.Plea bargaining is governed by Rule 11 of the Tennessee Rules of Criminal Procedure.

Note. As a friendly reminder for my prosecuting attorney friends who may read the blog. I would like to remind everyone that a plea bargain means plea equals bargain.

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A  Tennessee child sex allegation or a child abuse allegation usually starts with a visitor from the Tennessee Department of Children's Services followed by a visit from the police. The DCS investigator must follow a CPS investigation checklist which includes calling the District Attorney's office upon a report of severe abuse or sexual abuse allegations. Here's a short video on how to deal with the knock at the door by a  Tennessee Department of Children Services investigator.

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Another misconception about drunk driving cases are they are just like any other criminal case.Here's an example. In the normal first degree murder case , the State of Tennessee will have the police do an in depth crime scene investigation. The, the assistant district attorney may order ballistics tests , blood splatter patterns and collect other forensic evidence. All that evidence is collected and subject independent analysis.

In  Tennessee DUI cases , a independent breath sample can be captured but it is not done nor does Tennessee law require it. Most DUI arrests aren't video taped to preserve the evidence of the field sobriety tests

Some criminal defense lawyers don't take the DUI cases seriously. It's just a misdemeanor right. Wrong. Tennessee passes tougher DUI laws every year.It's no longer a minor crime.

Here's what a DUI lawyer must be know:

1. Search and Seizure Law
2. The Science of Field Sobriety Tests
3. The Science of Alcohol Consumption
4. The Science of Blood and Breath Alcohol Analysis

So , lawyers must take these cases seriously. These four topics should be asked of your DUI lawyer.

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I had a question posted by someone on the expungement process in Tennessee. The question is " In expunging you record with multiple jurisdictions do you have to go to each individual courthouse". The answer is you must go to each county in which the criminal charge was filed to complete the expungement procedure. I re-posted the video on " How to Expunge Your Record in Tennessee ". Also , I have created some videos on various issues in the area of DUI and criminal defense on You Tube.

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The fall out from the erased DUI video tapes by the Nashville, Tennessee police department continue.  Attorney David Brandon was the first attorney to discover the erased tapes.  I congratulate him for discovering what had happened.  However, I think everyone needs to be aware that the erased DUI tapes are not a get out of jail free card.  It is merely one key piece of evidence that is not available.  In court this week, I saw how not to use the loss of evidence.

Here is the key. Destruction of evidence may not require an automatic dismissal unless a criminal defendant can show bad faith on the part of police.  Failure to preserve potentially useful evidence does not constitute a denial of due process of law.  See Arizona v. Youngblood.

A number of states have not followed Youngblood because of the unfairness or requiring the accused to prove bad faith or that the evidence would in fact be favorable.  Tennessee rejects the Youngblood "bad faith" analysis.  Instead Tennessee adopted a "fair trial" analysis. See State v. Ferguson jury instruction.

So, my advice is to use the loss of the video tape to drive favorable plea discussions.  When the facts are great anyway, then ask the court for the Ferguson jury instruction at trial.

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As I was driving back from a preliminary hearing on a drug interdiction case in Rutherford County general Sessions court , I needed to grab a bite before going back to the office. So , I thought about an old favorite Tex"s Barbecue on Foster Avenue in Nashville. I had not been there in awhile but I was in for a surprise.Thursday' is rib day.

Three huge beef ribs. The ribs had a great smoke ring and were tender as can be. Followed by the  side buffet with a ton of choices of vegetables. My favorite is always the deviled eggs. Peach and blackberry cobbler were on the menu as well , but I am trying to watch the sweets. Check out Tex's for some western style BBQ.

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 The federal courts are split over whether the police must obtain a search warrant before secretly attaching a Global Positiong System device under someone's car.  The issue is whether the Fourth Amendment of the U.S. Constitution's protection against unreasonable searches and seizures covers a device that records a suspect's movements for days, weeks, or months without any need for a police officer or drug task force agent to follow the suspect.  Traditionally, the courts have held that the Fourth amendment does not cover the trailing of a suspect because a citizen has no expectations of privacy for actions exposed to public view.

With the explosion of technology to track someone's movement by GPS or cell phone, how do the court's apply Fourth Amendment privacy rights in the 21st century?

The D.C. Circuit held on August 6 , 2010  that a warrant is needed for prolonged GPS surveillance, recognizing People v. Weaver from New York and limiting Knotts. [This is a highly important decision. Every criminal and constitutional lawyer needs to read it.] United States v. Maynard, 2010 U.S. App. LEXIS 16417 (D.C.Cir. August 6, 2010): Thanks to the Fourth Amendment for this clip. Here is the full commenatary on this case.

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