Tennessee Expungement Alert

A lawyer will always learn something when they read the law. A great friend asked me a question about expunging an old criminal charge. It forced me into brushing up on  the Tennessee state code. Years ago, Tennessee had a DWI law on the books. It was a lessor charge of Tennessee's DUI law. it was titled Adult Driving While Impaired. It was under code section T.C.A. 55-10-418. It was repealed in 2003 The punishment was a $500.00 fine.

The question was whether the DWI conviction be expunged. Remember DWI not DUI. A DUI charge under Tennessee law can never be expunged. Ordinarily, one cannot expunge a conviction. Several years ago the Legislature passed T.C.A. 40-32-101(g). In the law, it specifically excludes certain convictions from being expunged. The old DWI law was one of those not excluded. Probably because the law was repealed at the time. If you want to clear a old DWI charge, here is a link to the procedure.. If you think you qualify, contact us.

Nashville Decriminalizes Marijuana What's Next

The Metro Nashville Davidson County City Council passed a law to decriminalize marijuana  on final reading. Now , several questions will have to be answered.

1. How will the Metro Nashville Police Department enforce the new law ?

I expect Chief Anderson to issue a new general order on how the Metro police should respond to the new law. A general order will provide a bright line rule on whether a to issue a municipal citation, a criminal citation, or an arrest warrant. Without a general order being put down, there is too much discretion in the hands of law enforcement.

2. Will the Tennessee Legislature step in to contest the new law on decriminalizing marijuana ?

There is no doubt that the Tennessee Legislature will intervene in this controversy. It will be on the front burner in the next legislative session. Representative William Lamberth was recently quoted on the subject in the Tennessean. He mentioned cutting off road funds to Davidson County.

3. Can a civil violation be expunged ?

Davidson County General Sessions Judge bill Higgins raised the issue on expunging a violation of the marijuana ordinance. A criminal marijuana charge can be expunged from your record if it is dismissed or you were granted judicial diversion. The new marijuana ordinance will always be on your record. but not your criminal record. Most major companies run criminal background checks. Normally, Tennessee criminal convictions are reported to the Tennessee Bureau of investigation. Since , the new law is a civil fine. I doubt it will be reported. No one ever checks the civil docket, but it will be there lurking in your past.

4. Can you be cited for the civil violation and also be arrested ?

The short answer is yes. The police could cite you for a violation of the ordinance and also arrest you. Double jeopardy does not prohibit both a criminal and civil charge. What goes hand in hand with marijuana ? Drug paraphernalia. You have a little weed and a bowl or a grinder. You get a double whammy. A civil penalty for the weed then a criminal charge for the paraphernalia.

 

5. How will the district attorney's office prosecute simple possession cases ?

No word or statement from the district attorney's office. My guess if the police charge the drug possession as a crime, they will prosecute.

There will be more questions on the new law in the upcoming weeks. Stay tuned.

Should Tennessee's Bail Bond Laws Be Reviewed ?

Recently, the bail bond system has been in the news  due to the perceived inequality of the bail  bond system. The most common complaint is the bail bond system unfairly treats the poor. Some bonds are set so high that the accused cannot afford to make the bail bond. The result is people set in jail until the case is resolved. It can lead to people pleading guilty just to get out of jail.

Under the Tennessee Constitution , everyone accused of a crime is entitled  to a bail bond with one notable exception. The only exception is if you are charged with a capital offense. A capital offense is where the death penalty is sought. The primary purpose of the bail bond is to ensure the defendant comes to court and to protect the public.

 

The big question is how to make the bail bond system fair. Will only the 1% of the people be able to afford a bail bond ? One of the critical issues is how should the bond amount be determined. In Tennessee, most of the bail bonds are being set by the judicial magistrate. There is some guidance given to the courts in setting the bail bond pursuant to Tennessee Code Annotated 40-11-118. Personally, I have seen multiple offense DUI bonds in Sumner County Tennessee range from $50,000. to $100,000. The Tennessean reported today on a Metro school teacher had a bond set at $100,000 on a child pornography case in Davidson County.

in years past, some Tennessee counties established a fixed schedule in setting bail bonds. San Francisco used a fixed bond schedule until they were recently sued. San Francisco and 30 other cities or counties have adopted a scoring system established by the Laura and John Arnold Foundation which uses nine factors to establish the bail bond amount.

Being in jail awaiting to face your charges harms those accused of a crime. Low income defendants are even more at risk at losing their jobs. Low income jobs are not as secure and they can be replaced more easily. In an effort to get out of jail and return to their family, some people plead guilty of a crime just to get out of jail if they cannot afford to pay the bail bond. The offer of immediate freedom may cause people to plead guilty even when they are innocent or have viable defenses.

My father was a lawyer. One of his sayings that I remember quite well  is " Those with the capital don't get the punishment." Now, it is those without the capital don't get out of jail. maybe it is time to overhaul the bail bond system.

In closing, I know some folks around the state read my blog. I would invite your comments on  your local bail bond system operates.

Should Tennessee's Bail Bond Laws Be Reviewed ?

Recently, the bail bond system has been in the news  due to the perceived inequality of the bail  bond system. The most common complaint is the bail bond system unfairly treats the poor. Some bonds are set so high that the accused cannot afford to make the bail bond. The result is people set in jail until the case is resolved. It can lead to people pleading guilty just to get out of jail.

Under the Tennessee Constitution , everyone accused of a crime is entitled  to a bail bond with one notable exception. The only exception is if you are charged with a capital offense. A capital offense is where the death penalty is sought. The primary purpose of the bail bond is to ensure the defendant comes to court and to protect the public.

 

The big question is how to make the bail bond system fair. Will only the 1% of the people be able to afford a bail bond ? One of the critical issues is how should the bond amount be determined. In Tennessee, most of the bail bonds are being set by the judicial magistrate. There is some guidance given to the courts in setting the bail bond pursuant to Tennessee Code Annotated 40-11-118. Personally, I have seen multiple offense DUI bonds in Sumner County Tennessee range from $50,000. to $100,000. The Tennessean reported today on a Metro school teacher had a bond set at $100,000 on a child pornography case in Davidson County.

in years past, some Tennessee counties established a fixed schedule in setting bail bonds. San Francisco used a fixed bond schedule until they were recently sued. San Francisco and 30 other cities or counties have adopted a scoring system established by the Laura and John Arnold Foundation which uses nine factors to establish the bail bond amount.

Being in jail awaiting to face your charges harms those accused of a crime. Low income defendants are even more at risk at losing their jobs. Low income jobs are not as secure and they can be replaced more easily. In an effort to get out of jail and return to their family, some people plead guilty of a crime just to get out of jail if they cannot afford to pay the bail bond. The offer of immediate freedom may cause people to plead guilty even when they are innocent or have viable defenses.

My father was a lawyer. One of his sayings that I remember quite well  is " Those with the capital don't get the punishment." Now, it is those without the capital don't get out of jail. maybe it is time to overhaul the bail bond system.

In closing, I know some folks around the state read my blog. I would invite your comments on  your local bail bond system operates.

Nashville Moves to Decriminalize Marijuana

The Nashville Metro Council has passed on second reading a proposal to decriminalize marijuana. Final reading is coming up soon. It has a ton of support locally and is expected to pass. The proposal is to make possession of marijuana less than one half ounce a civil matter much like a traffic ticket. It would carry a $50.00 fine. Nashville residents who enjoy a little 420 should not rejoice yet.

 

Is the local ordinance legally valid ? Probably not.

A local ordinance does not trump state law. The effort to decriminalize marijuana here in Nashville is just a waste of time. Nashville police can still enforce Tennessee state law governing the possession of marijuana.

Decriminalizing marijuana will only be effective if it done on a state level. It is a lot of talk with no real change in the law.

Nashville Moves to Decriminalize Marijuana

The Nashville Metro Council has passed on second reading a proposal to decriminalize marijuana. Final reading is coming up soon. It has a ton of support locally and is expected to pass. The proposal is to make possession of marijuana less than one half ounce a civil matter much like a traffic ticket. It would carry a $50.00 fine. Nashville residents who enjoy a little 420 should not rejoice yet.

 

Is the local ordinance legally valid ? Probably not.

A local ordinance does not trump state law. The effort to decriminalize marijuana here in Nashville is just a waste of time. Nashville police can still enforce Tennessee state law governing the possession of marijuana.

Decriminalizing marijuana will only be effective if it done on a state level. It is a lot of talk with no real change in the law.

The Tennessee Legislature Costs the State 60 Million

It never ceases to amaze me the laws that the Tennessee Legislature passes. I go to some committee meetings during the session. I have seen what goes on first hand. Most of the lawmakers are level headed. A law that was passed last session may now cost the citizens of Tennessee $60 million dollars in federal road funding. 60 million that won't be used for fixing our roads or providing jobs.

Here is what happened. In their never ending battle to tinker with the criminal laws of Tennessee, DWI for drivers under 21 was eliminated. Anyone 18 or over can now be charged with DUI. The big difference in the under 21 DWI set the blood alcohol limit at .02. For a DUI, the blood alcohol limit is .08. The federal law sets the limit for those under 21 at.02 blood alcohol concentration. If Tennessee does not comply with the federal law on blood alcohol limits, Tennessee forfeits federal road money. We already lose money because the Legislature will not outlaw the open container laws.

Maybe the Tennessee state Legislature needs to spend some time fact checking before they change the DUI laws.

In an effort to fix the problem, Governor Halsam has called for a special session of the legislature to fix the problem. Who is going to pick up the tab for the special session ? The taxpayers.

DUI Bond Conditions and EtG

The courts in Nashville,Tennessee will require random drug testing if you are charged with a multiple DUI charge. It is a condition of your bail bond. Positive drug test could mean that your bail would be revoked pending the outcome of your case. The test also looks for Ethyl Glucuronide (EtG). I added the fancy symbol above.

EtG is a biomarker for ethyl glucuronide. It is basically a  method to determine alcohol consumption.Here is what the Substance and Mental Health Services Administration has to say about EtG testing;

The EtG test is simply not reliable by itself to determine alcohol consumption. According to the SAMHSA advisory:

"Currently, the use of an EtG test in determining abstinence lacks sufficient proven specificity for use as primary or sole evidence that an individual prohibited from drinking, in a criminal justice or a regulatory compliance context, has truly been drinking.

"Legal or disciplinary action based solely on a positive EtG ... is inappropriate and scientifically unsupportable at this time.

 

These tests should currently be considered as potential valuable clinical tools, but their use in forensic settings is premature."

SAMHSA recommends that biomarker tests be used as a tool to launch a more extensive investigation into possible alcohol use, but not as a stand-alone confirmation

Here is the takeaway. Get a lawyer that can present a scientific defense to your case. I see over and over again motions to revoke bond based on a failed drug test. It is well documented about false positives and EtG testing.

The Sorry State of Wages for an Appointed Counsel

Henry Martin is the federal public defender for the Middle District of Tennessee. In today's Tennessean, Mr. Martin wrote a very thoughtful letter to the editor about the duty of a public defender. One of his comments was about the pay of new lawyers. One New York law firm recently announced that new hires would get $180,000.00. The starting pay is way above the salary of public defenders and Tennessee state court judges. The bigger issue is the pay scale to appointed counsel for indigent defendants.

In some cases, the courts must appoint counsel to represent indigent defendants in criminal cases. The Constitution demands that all folks are entitled to a lawyer. Conflicts arise where a lawyer must be appointed to represent one accused of a crime.

The problem is the pay is lousy. Currently, an attorney for an appointed counsel gets paid $40.00 per hour in court and $50.00 for in court time. There is a cap on the amount of time one can charge on each case. Some folks reading this will think $40.00 per hour is great pay. Let's look at it a little tighter.

What needs to be deducted from that number ?

  • Health Insurance
  • Office Rent
  • Saving for Retirement
  • Taxes
  • Office Expenses.

The list can go on.

The Tennessee Supreme Court has set up a series of listening tours on the subject. Get involved. Reach out to the folks that make a difference. The question is should we provide adequate compensation for those who represent folks charged with a crime.

 

The Sorry State of Wages for an Appointed Counsel

Henry Martin is the federal public defender for the Middle District of Tennessee. In today's Tennessean, Mr. Martin wrote a very thoughtful letter to the editor about the duty of a public defender. One of his comments was about the pay of new lawyers. One New York law firm recently announced that new hires would get $180,000.00. The starting pay is way above the salary of public defenders and Tennessee state court judges. The bigger issue is the pay scale to appointed counsel for indigent defendants.

In some cases, the courts must appoint counsel to represent indigent defendants in criminal cases. The Constitution demands that all folks are entitled to a lawyer. Conflicts arise where a lawyer must be appointed to represent one accused of a crime.

The problem is the pay is lousy. Currently, an attorney for an appointed counsel gets paid $40.00 per hour in court and $50.00 for in court time. There is a cap on the amount of time one can charge on each case. Some folks reading this will think $40.00 per hour is great pay. Let's look at it a little tighter.

What needs to be deducted from that number ?

  • Health Insurance
  • Office Rent
  • Saving for Retirement
  • Taxes
  • Office Expenses.

The list can go on.

The Tennessee Supreme Court has set up a series of listening tours on the subject. Get involved. Reach out to the folks that make a difference. The question is should we provide adequate compensation for those who represent folks charged with a crime.