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.

 

Durham's Trespassing Complaint

The Tennessean's follow up story to the Nashville Scene reporter being arrested for trespass had an interesting side story. The Tennessean complained in the story about not getting a copy of the complaint after multiple requests by the paper. It is standard procedure that no information is released in Nashville Davidson County until the warrant or indictment is served.

Attorneys for the accused cannot even get a copy of the arrest warrant. Inside the four corners of the arrest warrant, the affidavit of complaint is listed. It is a short summary of the evidence which supports the probable cause for the arrest. One cannot get a copy under the guidelines established by the booking office. Think you have an arrest warrant against you ? You can't just call in and check. The folks at the booking office want you to come on down to check in person. If you have an active warrant, surprise you are now under arrest. The Tennessean complains they did not get a copy after requests are made. Sorry but you are not entitled to get a copy at this juncture.

 

Here is the problem. according to the article, the Davidson County Sheriff's office released a copy of the complaint to the newspaper. The reporter, Carrie Wade Gervin was not served with the criminal citation until the next morning.

 It was a clear violation of long established policy by the Davidson County Sheriff's Office. No information is provided on cases where the accused has not been served with process. Was the policy violated solely for the Tennessean ?

Questions About the Criminal Justice System We Can't Answer

The Marshall Project provides excellent commentary regarding the criminal justice system. A recent post was titled 13 Important Questions About  Criminal Justice We Can't Answer. Today's post focuses on one question. How many criminal cases are referred to prosecutors and how do they decide which to pursue.

I have never been a prosecutor so I know little of the internal workings of case evaluation in various district attorney's offices. My insight is solely from a criminal defense lawyer's perspective. Most cases are referred to the district attorney's office by law enforcement.

The most common method for case going to the district attorney's office for prosecution is an arrest warrant. After an arrest warrant is taken out, the case is docketed. An assistant district attorney will review the facts contained in the arrest warrant.The assistant district attorney (ADA) will then make a decision to prosecute the case, offer a plea bargain, or dismiss the case. I am not aware of any readily available data of the percentage of the cases they actually pursue.

In criminal cases in Nashville, Tennessee, the court may be reset to have police officers subpoenaed or private witnesses present. At the trial date, the ADA will interview any potential witnesses to further evaluate the case. if the case can't be resolved a preliminary hearing should be conducted by the defense lawyer. It is a great opportunity to demonstrate some potential weaknesses in the case.

The case is also reviewed by the district attorney during the grand jury process. Again, there is no raw data available if the case is screened and who decides on whether to present the case to the grand jury. On rare occasions, the local grand jury can find there is sufficient evidence and refuse to return an indictment. Interestingly, the prosecutors in Cheatham County will sometimes allow the defendant to testify at the grand jury proceeding.

In some cases, law enforcement can present the cases directly to the grand jury for a sealed indictment. It is most commonly used in sex crimes , rape of a child, and aggravated sexual battery. The district attorney's office reviews child sex cases with a team approach with the use of police, an ADA, and an investigator of the Department of Children's Services.

In answering the question posed by the post, there is insufficient data to answer the question. The main takeaway is the power of the local district attorney's Office in deciding which cases to pursue and which cases to drop.

Willaimson County Public defenders Take a Hiatus

I was in the Circuit Court for Williamson County , Tennessee recently. The court announced that the public defenders had requested not to be appointed to any new cases for a short period of time. The judges agreed and started to appoint local attorneys to represent indigent defendants. The District attorney objected and requested to file an objection. The Tennessean reported on the story this week.

Caseloads for the public defender's office is exploding across our country. Paying for indigent defense is not a popular subject for most of our citizens, but it is a constitutional requirement to provide effective representation. Can representation be effective when a criminal defense attorney does not have sufficient time to work on a case ? The complaint by the Williamson County, Tennessee Public Defenders is caseload volume.

The National Association of Criminal  Defense Lawyers ran an article in The Champion several months. It urged it was time to update the American Bar Association's ten principles  of a public defense delivery system. One of the principles is declaring the unavailability of the public defender. One of the guidelines set forth is  to advise the court when their workloads become excessive. The report does not require the public defender to file any motion with the court. I applaud the trial judges in Williamson County in issuing the memorandum regarding the excessive workload of public defenders.

In reviewing the ABA principles for public defense, there is no procedure for prosecution objections. Lawyers have an ethical duty to not take on more cases than they can provide competent legal services. It is even more critical when a person's fate is going to prison. In some discussions, some people say the assistant district attorneys have a bigger caseload than the public defenders. Let's take a look at that issue.

The district attorneys have a fleet of investigators called police officers or detectives. They have access to a crime laboratory with folks with specialized knowledge. Some Tennessee district attorney's offices have dedication victim witness coordinators whose job it is to help with the witnesses in the case. Most public defenders or court appointed lawyers do not have access to those resources. true, a public defender or appointed counsel can file a motion for funds for an expert or investigator but the purse strings are held by the Tennessee Administrative Office of the Courts.

Who knows better about how many cases the Public Defenders can ethically accept....the public defenders and the Judges or the District Attorney? it is not popular to support funding for indigent defendants. it takes courage to make tough decisions. the trial judges in Williamson County took a stand for ethical , effective , and high quality representation for those that simply can't afford a criminal defense lawyer.

I Want You To Step Outside of the Car and Do Some Tests

Last month, I posted an article on "Have you been drinking tonight."The next question that DUI police officers ask is I want you to step outside of the car and do some tests. Should a citizen under suspicion of drinking and driving agree to do the field sobriety tests ? Your answer should be a polite no thank you. Here are a few reasons why you should say no thank you.

  • The field sobriety tests are one of the main building blocks of a DUI prosecution.
  • The field sobriety tests are patently unfair. They are used on all types of folks from 18 to 80. Weight and physical problems are not factored into the equation.
  • The original data from the studies which lead to the creation of the field sobriety tests have never been peer reviewed.
  • Under Tennessee law, the field sobriety tests are not scientific tests.
  • Under Tennessee law, a defense attorney cannot cross examine an officer using their training materials.
  • it is simply based on the police officer's opinion.
  • The scoring is unfair. On the walk and turn test there are eight clues. if you have only two clues present, you fail.
  • The horizontal gaze and nystagmus  is inadmissible under current Tennessee law.
  • The Tennessee Supreme Court has ruled that even if you pass the field sobriety tests you can still be arrested for driving under the influence.

These are just the highlights of why you should saw no thank you when requested to do some field sobriety tests. as I was writing the post, I was reminded by a saying my father used to say. " I might cut my own throat but I am not going to supply the razor." Don't supply the razor

 

Nashville Judge Orders New Trial Based on Jury Selection

Last week, a Nashville juror raised a question to the judge. The fallout from that question led to the court ordering a new trial. The Tennessean reported one juror questioned why there were not any black jurors when the men accused of the crime were black. Once the juror voiced their concerns about the lack of diversity, the court dismissed the jurors for discussing the case before the case was concluded.

The critical issue is whether there was any Batson violations. In Batson v. Kentucky, The U.S. Supreme Court ruled that using peremptory challenges to exclude jurors based on race violates the Fourteenth Amendment of the U.S. Constitution. Here, the prosecutors used six peremptory challenges to exclude six potential jurors. five of which were black. The prosecutors expressed a race neutral reason why they excluded the black jurors. If the prosecutors can state a race neutral reason for the challenge, the challenge passes constitutional scrutiny. From the article, it appears there were race neutral reasons for the strikes. All the reasons that the prosecutors listed seems reasonable. Jury selection is not an exact science. It is sometimes based on instincts on whether someone can be fair. The court must accept the race neutral explanation so long as it is not itself discriminatory.

The Tennessee Supreme Court set the procedural rules in making and determining Batson challenges in this case.

 

Here is my practice tip. Write down your reasons during the jury selection process. It helps to have been thoughtful during the jury selection process. a criminal defense attorney should write down the challenges as well. You might be subject to a reverse Batson challenge. Always remember a short pencil is better than a long memory.

Attack on the Sequestration Rule in Tennessee

Shortly after the trial begins, one or both of the parties request the Rule. The sequestration rule is simply that the witnesses are excluded from the courtroom until it is their turn to testify. the sequestration rule is a bedrock principle of the criminal justice system to insure a fair trial. The sequestration rule was Incorporated by the Tennessee Rules of Evidence years ago. Here is Rule 615 of the Tennessee Rules of Evidence:

Rule 615: Exclusion of witnesses.

 

At the request of a party the court shall order witnesses, including rebuttal witnesses, excluded at trial or other adjudicatory hearing. In the court's discretion, the requested sequestration may be effective before voir dire, but in any event shall be effective before opening statements. The court shall order all persons not to disclose by any means to excluded witnesses any live trial testimony or exhibits created in the courtroom by a witness. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) a person designated by counsel for a party that is not a natural person, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause. This rule does not forbid testimony of a witness called at the rebuttal stage of a hearing if, in the court's discretion, counsel is genuinely surprised and demonstrates a need for rebuttal testimony from an unsequestered witness.

Tennessee's sequestration rule does allow some exceptions to the general rule of exclusion of the witnesses. One key exception is that a person can be present if  that person is essential to the preparation of the case. Normally experts are allowed to sit in the trial.

The Tennessee District Attorney's conference is seeking to dramatically change the question rule in Tennessee. The District Attorney's Conference is seeking to allow the chief law enforcement officer to sit in the trial. and listen to all the testimony before being called, It is similar to looking at all the answers on a test then being allowed to take the test.

The government's goal should be to ensure a fair playing field. Rule 615 of the Tennessee Rules of Evidence has been the law of the land for decades. It should not be tinkered with lightly. It makes the district Attorney's job easier and gives the prosecutor a distinct advantage.

Please let your voice be heard and contact a member of the Senate Judiciary Committee to protect one's right to a fair trial. Here is a link to the members of the committee if you wish to contact them.

Have You Had Anything to Drink Tonight ?

Almost  all Tennessee DUI investigations start out with that simple question once you have been stopped. Most folks don't know their rights. So they admit to a couple of drinks or wine with dinner. Here are some ideas on how to respond to a police officers questions about drinking.

  • Do not lie to the police officer. For example, do not deny drinking. A police officer might get a search warrant for your blood alcohol level. A positive blood alcohol test makes you look like a liar.
  • Do not admit to having a couple of beers or wine. The admission creates probable cause for a DUI investigation. A recent case before the Tennessee Court of Criminal Appeals held that an admission of drinking creates probable cause for an arrest even though the accused passed all the field sobriety tests.

You are damned if you admit to drinking and damned if you deny drinking. What should you do ?

Exercise your constitutional rights. Here is an idea of what to say.

Officer Your question makes me think I am under an investigation for driving under the influence of alcohol. I will not make any statements and assert my constitutional right to remain silent. I will not answer any questions other than my name and address.

You cannot talk your way out of a DUI arrest. You cant perform field sobriety tests and go home. You are going to be arrested one way or another. Protect yourself and remain silent

There was a saying during World War II. Loose lips sink ships. Don't sink your DUI case before it leaves the dock.