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

A warrantless search of a car or truck in Tennessee is usually prohibited , however there are exceptions to this rule. If a police officer can demonstrate probable cause that a car might contain marijuana , a police officer can search a car or truck. The big question is whether the smell of marijuana is enough to justify a search of a car in Tennessee.

Tennessee Courts have upheld a warrantless search of a car  based on the smell of marijuana alone.  One question is  it the smell of raw marijuana or burnt marijuana . Does the smell of marijuana limit the search to the interior of the car ?

Using the smell of marijuana should always be contested in a automobile search. One can test the officer in several ways;

• What was his training in the odor of marijuana ?
• What was his experience ?
• Was there any other evidence of marijuana use found ?

Time and time again I see that there is no evidence recovered of burnt marijuana after the traffic stop. How do you combat the officer's testimony ? Get an independent witness to smell the car.. The Fourth Amendment is constantly being eroded and the smell is enough to search a car.

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Nashville's WLPN radio has been reporting on some of the new criminal laws that went into effect at the start of the New Year . Tennessee has created a new class of reckless endangerment charges. Senator Mark Norris spearheaded the new law based upon the drive by shootings that occur in Memphis, Tn. The new law makes it a Class D felony when a firearm is discharged into an unoccupied home and it is a Class C felony if the home is occupied. The price tag for the new law is just $59,000.00 per case. This is just one more example of passing laws for political capital.

A Nashville assistant district  attorney commented in the story that he did not think it would make a difference in gang related drive by shootings. Tennessee does not need to put a new criminal law on the books. Just use the ones we have. If someone shoots into a occupied house , it is called attempted first or second degree murder. It appears Tennessee tries to solve every problem by creating a new criminal law . Tennessee is fast becoming overcriminalized .The Wall Street Journal reports that there are over 4500 federal criminal laws and over 300,000 regulations that carry criminal penalties. The article further reports that the law is eroding the criminal intent element that is required in most crimes . What new criminal laws are on the horizon in Tennessee ?

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Tennessee Governor Bill Haslam announced a new plan to increase punishment for certain crimes . One of these proposals is to increase jail time for those convicted of domestic violence.Gov. Haslam based his plan on a recent study that ranked Tennessee fifth in the nation in the  rate its women are murdered by men. The plan seeks mandatory minimum sentences of 45 days in jail for a second domestic violence conviction and a minimum 120 days in jail for a third or more conviction.

Society needs to address the domestic violence issue . However mandatory minimum sentencing is not the answer. Most politicians want to be tough on crime and enact tough laws to make them look good to the public. Two things happen when the government enacts mandatory minimum punishment. First , it takes discretion out of the judges hands in sentencing. By that , most judges want to make a difference and try to be creative with sentencing alternatives like domestic violence counseling. Mandatory minimum punishment takes that away from the court. Secondly , mandatory punishment gives the district attorneys took much power to cram down plea bargains to those accused of a crime . Take a deal avoid jail or go to trial and if you lose visit the jail. There is to much potential for abuse  in making mandatory minimums the answer to all that's wrong in the criminal justice system.

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The image above is a lab tech sorting blood alcohol samples into a rack.  I now know why that's important due to a class I took last year. DUI lawyer Justin McShane posted an article about the details of the class on gas chromatography on his blog. The point that Mr. McShane makes is that great DUI lawyers need to understand the ins and outs of forensic science. All too often we as criminal defense attorneys look at a one page blood alcohol report and cringe with fear.Thanks to the class that Mr.McShane started. Criminal defense lawyers don't need to cower.

The link to the article lays out the agenda of the program. Attorney Machine teaches the program with real live scientists and attorney Josh Lee. . Today's post is to thank him , Josh and the teaching staff for providing a great learning experience.

Disclaimer . I graduated from the course last June . I wish I would have paid more attention in science class in my younger days. So do the lab techs. Just ask one of them to explain Van Deemter's curve.

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On January 1 , 2012 a new DUI law comes into effect in Tennessee.  Tennessee Code Annotated 55-10-406(f) expands the circumstances in which a Tennessee law enforcement officer can require a blood alcohol test without the consent of the accused. Tennessee law will allow an officer to require a chemical test to determine the accused's blood alcohol level when the officer has probable cause to believe the motorist has committed a violation of DUI , vehicular homicide by intoxication or aggravated vehicular homicide , and

1. The suspect was involved in an accident causing injury or death to another ;
2. The suspect has previously been convicted of DUI , Vehicular Homicide by Intoxication or Aggravated Vehicular Assault ; or
3. The suspect has a passenger in the car who is a child under the age of 16.

Knoxville DUI attorney Steve Oberman has commented on the new law. Here is some of his points. First , the new law does not include any look back period. In Tennessee the state can look back ten years in your history to see if you have a prior DUI conviction in order to try you as a DUI second offender. In the new law , there is no look back period so the police could force a blood draw on a DUI conviction that happened over 20 years ago. Secondly , the new DUI law is specific to Tennessee DUI convictions because it lists the corresponding code sections. So , an out of state conviction may not be used to compel a chemical test. I anticipate this issue will see some litigation.

No one is in favor of drunk driving . Yet the dilemma that is facing Tennesseans is enacting laws that can be applied fairly. How do we as a society balance our constitutional protections ?  How do we deal with the arbitrary laws that are penal  in nature to those charged with a particular crime ?

Well if you are facing these types of charges you must stand your ground . Decide if you want to accept your fate or decide whether the courts will let this arbitrary set of laws be enforced .

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An old college friend send me a message the other day. She had an important question for me . How could I represent criminals if I knew they were guilty ?  It didn't take me long to come up with an answer . All of God's children need help. Sometimes they go astray , are  lead astray , or are just wired wrong. Sometimes I represent those that are guilty but are overcharged in their cases by the government to force the accused to accept a plea bargain agreement. Sometimes they need help for defending them during the sentencing phase of the case . The most important part is the oath that criminal defense lawyers take to defend their clients zealously and to defend the Sixth Amendment of the Constitution.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

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While I was in General Sessions Court in Cheatham County this week , I learned of the District Attorney's new procedure on handling the implied consent component of a Tennessee DUI charge. If a citizen exercises their right to refuse to submit to a breath or blood alcohol test after a police officer has reasonable suspicion to believe one is driving under the influence of alcohol .,  the officer also charges you for a violation of the implied consent charge. For those arrested by the Ashland City Police Department , the Cheatham County Sheriff's Office or the Tennessee Highway Patrol , expect to have a hearing on your first court appearance. In Cheatham County criminal cases , the first court date is an arraignment date . An arraignment date in Cheatham County General Sessions is usually just to enter a plea of guilty or not guilty then it is reset to the arresting officers first court.

Tennessee's law on the timing of the implied consent charge changed recently. Under T.C.A. 55-10-406(a)(4)(A) , a determination of the implied consent violation shall be made at the driver's first appearance or the preliminary hearing in the general sessions court, but no later than the case being bound over to the grand jury. If they force you to have a hearing unprepared , you will probally lose your license while fighting your DUI case.

So what is the solution. Hire a experienced DUI attorney. Fight the case from the beginning. If the officer is not there at the first court date , move to dismiss the violation. Appeal it. There are other ways as well. Fight fire with fire. 

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Jerry Sandusky's lawyer waived his right to a preliminary hearing in his sex abuse case. As I was leaving for court today , Ann Curry asked Joe Amendola if he was competent to handle these sex abuse allegations. Ms. Curry asked a hard question that most criminal defense attorneys are asking. What is Mr. Amendola thinking in preparing his defense ? Maybe he is thinking that this is his 15 minutes of fame and he wants to appear with Bob Costas and on the Today show. From my perspective it appears every move that has been made is the wrong move.

First , Mr Amendola waived the preliminary hearing.. A preliminary hearing is a great tool to hear what the witnesses are going to say . It might be a criminal defense attorneys only opportunity to question them on the record . The purpose of a preliminary hearing is set out in this video. In the Curry interview , Amendola states he waived it because he did not want his client's bail bond revoked. I understand that tactical decision , but sometimes it is more important to discover the facts in the case . Granted , I am not familiar with Pennsylvania criminal laws , but under Tennessee criminal laws a motion must be file giving the defense written notice at least five days before a bond revocation hearing. In Nashville , Tennessee child sex crime cases the District Attorney's office seeks a direct presentment in order to avoid a preliminary hearing. Waiving the hearing did not make sense to me.

Second , I do not understand Mr. Amendola's decision to allow Mr. Sandusky to give repeated interviews to the press. Years ago in Nashville , Perry March was under investigation for murdering his wife and he gave repeated interviews with the press. Now , Mr. March is behind bars. It appears that Mr. Sandusky is digging himself a hole where he will not be able to climb out. The U.s. Constitution gives you a right to remain silent . I suggest they use it.

For those facing a Tennessee sex crimes case or defending one , here is my thoughts :

• Never let your client speak to anyone about the facts of the case. this means the police , the press or even your family. I would suggest they speak to no one about the case.
• Never waive a preliminary hearing unless you get something concrete in exchange for waiving such a critical part of the case.

I see lawyers everyday waive the preliminary hearing . I still don't understand it. Mr. Amendola waiver just drove the point home in a high profile sex crimes case.

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Drug Testing in the criminal justice system is currently a hot topic . My last post was on drug testing for Tennessee judges.  Last week Michigan criminal defense lawyer Scott Millard was jailed when he stood up to a judge about asking his client to take a drug test .  I learned about the show down last week from Keeley Heath who practices with Mr. Millard . Mr. Millard spend four hours in lockup defending his client. Simple Justice posted part of the transcript of the hearing right before the hammer went down.Here is the exchange :

 When  I read the first post of Mr. Millard predicament up to the judge , I was proud that a criminal defense lawyer would stand up to the judge ordering a drug test on someone.Tennessee State Legislators spoke about requiring judges to take them in Tennessee . Now , the wholesale practice of the use of drug tests are startling. Now , once one is on probation your constitutional rights are limited. Taking a drug test before a sentencing hearing to help make your case for probation is fine by me. Other than that " Just say no to drug testing". Stand up for justice and the rule of law. Way to go Scott.

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