One Critical Aspect on Handling Repeat DUI Offenses

It saddens me the way some DUI cases are handled in the State of Tennessee. Some lawyers think these are easy cases. They take a client's money. No investigation is done. Then a plea of guilty as charged. A recent case illustrated this point.

The charge was a felony DUI. In Tennessee, it requires three prior DUI convictions. If convicted, a minimum jail sentence of 150 days and a loss of license for at least eight years. This individual's first lawyer wanted them to plea guilty as charged to the felony DUI. I took over the case. I reviewed the prior criminal record. One of the prior convictions was invalid and could not be used to enhance the punishment to a felony DUI. Just reviewing the record saved someone from a felony. Then it got worst.

On another charge, a plea was entered to two DUI seconds with a jail sentence. The prior charge was invalid in the like in the felony case. A person did a jail sentence without an investigation of the prior record. I wonder how many lawyers in Tennessee do not review the prior criminal convictions.

If your charged with a second, third, or felony DUI in Tennessee, you must get a copy of the prior convictions. The same holds true if you are an attorney handling these cases. Over the years of defending DUI cases, I have seen judgments not signed by the judge. One clerk's office in Alabama destroys the convictions after five years. On occasion, a waiver of counsel has not been signed. All of which could make a prior conviction invalid. It is critical to review the record before pleading guilty to any enhanced DUI.  


Supreme Court to Decide Breath Test Refusals

The U.S. Supreme Court recently agreed to hear three cases which are consolidated for a single argument. The critical issue is whether a state can make it a crime for citizens suspected of driving under the influence (DUI) to refuse a breath or blood tests. The cases are from Minnesota and North Dakota The North Dakota law provides that "refusal to take the test directed by the law enforcement officer is punishable in the same manner as driving under the influence."

it is a bedrock principle of our constitutional rights that a citizen cannot be compelled to give evidence against oneself. However, police can obtain search warrants to force an citizen to submit to a blood alcohol test. In these cases , the issue is can you be charged with a crime for asserting your constitutional rights.

In Tennessee it is a crime under T.C.A. 55-10-407 to refuse a request for a blood or alcohol test if you are driving on a revoked driver's license due to a prior DUI conviction. a violation of this statute is a Class A misdemeanor and carries a jail sentence of a least 5 days if convicted.

If the U..S. Supreme Court allows these laws to stand, it creates a entirely new set of problems.

  • I refuse to consent to a search of my car.
  • I refuse to consent to a  search my house.

Will these be criminal offenses in the future.


My Christmas Wish List for Criminal Justice in Tennessee

It is the Christmas season. Christmas brings dreams of presents under the tree and goodies to eat. Since , I no longer get a toy. I was making a wish list for the criminal justice system in Tennessee. Here they are in no particular order:

  • Dash cams for all patrol cars in Nashville Davidson County, Tennessee.
  • Open discovery. It is a concept where the district attorneys open their file to let you look at the evidence.
  • Abolishing the Jenck's Act. The Jencks Act codified under Rule 26.2 of the Tennessee Rules of Criminal Procedure. An attorney only gets to read a witnesses statement after they testify. How can you make an effective decision on whether to plea guilty.
  • The right to take a deposition of the primary police officer in charge of the case.
  • The rates for those representing indigent defendants be increased.
  • For the return to an independent judiciary.
  • District Attorneys who present the correct charge rather than indicting a more serious charge to force a plea bargain.
  • A Tennessee legislature that makes solid judgments rather than make a knee jerk reaction to curry favor to certain segments of the voters.
  • End mass incarceration.
  • Protect the Fourth Amendment.
  • Allow partial expungements.

My associate has two Christmas wishes.

  • A database of all negative alcohol screens.
  • A database of all false positive drug dog hits.

I bet I don't get anything in my Christmas stocking.


Tis the Season for IdentityTheft

It is Cyber Monday. All through the house goes the click of a mouse buying presents to be placed under the tree. While Santa is shopping the evil Grinch is trolling for your credit card information. I just read a news release by Cybersecurity expert Tony Perez. Here are some of the takeaways.

1.What are some of the most important things to protect you from Identity theft ?

  • Don't answer texts or emails from unknown sources.
  • Don't answer emails from the IRS because they don't send emails.
  • Don't answer emails from Nigeria or other strange countries.
  • Remove your personal information from your computer.
  • Create passwords with numbers, characters and do not use your account name.

2. is it okay to have a website store your credit card information ?

It depends if they have a green URL certificate .

3.Should you have your social security number on medical documents ?

  • You should try to avoid doing so if possible. If they require it, ask about how they protect your information.

Tennessee's identity theft laws are lengthy. Here is a link to Tennessee's law on identity theft.

The bottom line is to protect your online identity just like you would your wallet or your purse.


Does Nashville's Crime Lab Create a Conflict of Interest ?

 Metro Nashville Police Department lobbied for it's own crime lab. Supported by former Mayor Karl Dean, it was funded. Now blood alcohol reports are being generated by the lab. The key question is whether having a forensic crime lab run by the same folks who are prosecuting the crime create an inherent conflict of interest. Secondly, does having the same lab as the police department create a bias in reporting ?

In 2009 , the National Academy of Sciences released a study on Strengthening Forensic Science in the United states. The study dealt with the entire field of forensic science. One area of study was the independence of forensic science laboratories. One finding was that a system where the crime lab reported to the head of the law enforcement arm leads  to significant concerns related to the independence of the laboratory.


One of the recommendations to maximize independence from law enforcement was to remove all public forensic laboratories from the administrative control of law enforcement agencies or prosecutors' offices.

Before the opening of the Metro Nashville crime lab, most forensic science duties were performed by the Tennessee Bureau of Investigation. At least there was a level of independence in that there agents were not actively prosecuting the cases. All current blood alcohol tests in DUI cases are being performed by the Metro crime lab. Nashville was aware of the forensic science report yet put the forensic crime lab in operation. The big question is whether the lab is independent or biased in its reports.

Charlie Sheen's Revelation

Charlie Sheen disclosed last week on the Today show that he was infected with the AIDS virus. During the interview, Mr. Sheen denied knowingly having unprotected sex without the other persons knowledge.

Under Tennessee criminal law,  person is person commits the offense of criminal exposure of another to HIV, hepatitis B (HBV) and hepatitis C (HCV) when knowing that the person is infected with HIV, HBV or with HCV, the person knowingly engages in intimate contact with another. It is not a defense that the sexual contact was protected. It is a defense that the person consented to the sexual act with knowledge that the person was infected. See T.C.A. 39-19-109

it is a Class C felony for exposure to HIV. A Class C felony carries a full range of punishment from 3-15 years. Exposure to hepatitis is a misdemeanor.

My First Mentor as an Attorney

While at my desk this week, I opened a email about a recent death. The email had a great line in that we should send flowers while someone is alive rather than waiting till death. I thought about and it makes perfect sense. So I thought I would express my gratitude to my first mentor. It is not flowers but I wanted to say thank you.

Nashville Lawyer Jack Butler offered me a job right out of law school. Jack taught moot court at the Nashville School of Law for years. He offered me a job and I took it. I started in his office in December 1994. Jack assigned me a case to help him try in January.

Here is short story of my first trial. We worked out who was doing what part of the trial. The major part of the trial was a recreation of the breath test. My first role was jury selection. After lunch, we were supposed to start the trial with opening statement. jack wasn't back yet. The judge asked me if I was ready. I stood up and stated to the court that jack wasn't back yet. The judge told me that Jack told the judge he wasn't coming back. So off I went.

The big part of the trial was a recreation of the breath test. Our client took a asthma inhaler right before the breath test. it made a big difference in the result. When I got back to the office, Jack asked how much time did the judge give him. My reply was none. Jack responded that he had to give him some jail. My response was not if the  jury found him not guilty.

I just wanted to express my gratitude to Jack for being my first mentor. Thanks. I will remember you for as long as I live. For my old lawyer friends take someone under your wing and pass on your experience.

Jack is not in the best health right now. I would hope those that knew him or were taught by him to send him a card on how he helped them in their legal career.

The Rise of the Blood Alcohol Search Warrant in Tennessee

The Tennessee State Legislature pasted a DUI law several years ago that authorized a mandatory blood draw in multiple DUI prosecutions, accidents involving serious bodily injuries, and if a minor child was a passenger in a car driven by a DUI driver. There  were constitutional issues raised on a seizure of a person's blood without a search warrant. The U.S. Supreme Court dealt with those issues in McNeely v. Missouri.

In McNeeley, the court held that a search warrant may be required to obtain a defendant's blood sample. Exigent circumstances did not always outweigh the search warrant requirement. Soon after McNeeley was the law of the land. Tennessee law enforcement began obtaining search warrants in those cases. Law enforcement soon realized it was not that difficult to get a search warrant on multiple DUI offenders. Regular patrol officers soon trained to get a blood alcohol search warrant in all DUI cases. District attorneys began drafting template search warrants for local police. The Tennessee highway Patrol even had a template. All the arresting officer had to do is fill in the blanks of the template and present it to the magistrate.

Several counties across Middle Tennessee apply for a  a blood alcohol search warrant in all DUI investigations. Williamson County, Tennessee is the primary county where search warrants are used all the time.

The result for those charged with a DUI and those defending DUI cases is a more vigorous defense. Was the magistrate truly neutral and detached ? Was there a Franks violation in that the police officer make some reckless statements on the affidavit for the search warrant.

it reminds me of the old adage. Be careful what you ask for, you just might get it.  


8 Tips for Courtroom Sucess

Last month, we had a big trial scheduled. We spend a lot of time preparing for trial and the possibility of our client testifying. Luckily, the government dismissed the case on the morning that the jury trial was to start. As I was going through my notebook today, I ran across a list of courtroom tips. They are worth sharing. Being in the courtroom is stressful for lawyers let alone someone  facing losing their liberty. Here are my tips for courtroom success.


  • No facial expressions when someone is testifying.
  • No talking when the judge is speaking.
  • No talking when the witness is testifying.
  • Dress appropriately
  • Be careful when you decide on a bench trial or a jury trial.
  • If you decide to testify, be prepared to answer the judge's questions.
  • Answer the question. Do not try to rationalize your answer.
  • Be polite and respectful when answering the question.

I know these tips are simplistic. Just remember. You only get one chance to get it right. you need to do everything possible to win your case.

Will Tennessee Adopt The Good Faith Exception ?

Stacey Barchenger  reported in today's Tennessean on the oral arguments held yesterday in State v. Reynolds. The issue raised by the Court of Criminal Appeals was whether Tennessee should adopt the good faith exception. Now the Tennessee Supreme Court has the case. Tennessee has not adopted the good faith exception under the Fourth Amendment.

In Reynolds, the trial court suppressed Ms. Reynolds blood alcohol test. Ms. Reynolds was charged with vehicular homicide. Reynolds' lawyers filed a motion to suppress her blood tests because her warrantless blood draw. At first, the court denied her motion then granted the motion after medical testimony. In the opinion's concluding remarks, the court wrote that this case would be a  case to determine if the officer's actions were covered under the good faith exception rule of Fourth Amendment law. Good faith was not raised by either party on direct appeal.

Here is a short definition of what is good faith;

An exception to the exclusionary rule barring the use at trial of evidence obtained pursuant to an unlawful search and seizure. If officers had reasonable, good faith belief that they were acting according to legal authority, such as by relying on a search warrant that is later found to have been legally defective, the illegally seized evidence is admissible.

The good faith exception was adopted by the U.S. Supreme Court in Leon. Tennessee has not adopted Leon. It appears Tennessee is on the verge of adopting the good faith exception. The Tennessee Constitution has always been interpreted as giving more protections that the U.S. Constitution. It looks like we are going to find out soon if that is still the case.