How Does The Tennessee Bureau of Investigation Test Marijuana ?

Most folks have a different idea of what forensic labs do in the testing of evidence. We think of lab coats and complex scientific tests like we see on CSI. It is not always true. if your arrested for possession for marijuana in Tennessee ,  the evidence seized may  eventually be tested by one of the Tennessee Bureau of Investigation (TBI)  crime labs. How do they test marijuana for use in the court room ?

First , marijuana is examined under a microscope to determine botanical identifications  The lab person is looking for trichomes . Some organizations suggest there must be training in botanical identifications in order to make these findings. The data should also be reviewable in evaluating test reports. For example , a picture taken of the examination. Easily done with a digital microscope , but not done by the TBI .

The next test is the use of the Duquenois/Levine test. It is simply a reagent that is put on the marijuana and then chloroform is added. It is then supposed to turn purple. Again ., no photo is taken. That is the end of the testing that the TBI does. Is there more to the story ?

The National Academy of Science in their book  "Strengthening Forensic Science in the United States"  recommends those two tests in addition to a thin layer chromatography test. Guess what ? The TBI does not use that test to my knowledge . The Scientific Working Group for the Analysis of Seized Drugs recommends another layer of tests to confirm if a substance is marijuana. The chair of the core committee happens to work for the Drug Enforcement Administration .

The question is why does the testing for marijuana in Tennessee does not comply with the minimum standards set by two scientific groups ? Indifference. No concern of scientific accuracy. You fill in the correct answer.


When Should a Lawyer Request a Change of Venue ?

Stacey Barchenger  reported on last Friday's hearing in the Vanderbilt rape case. One defendant asked for a continuance in order to obtain an expert witness and one defendant requested the jury to be sequestered. Both motions were denied. The case is set for November 3rd ,2014. I watched a little bit of the hearing on Friday waiting on my case. It made be think of a motion that should have been filed. I don't know if the defense filed a motion for a change of venue.

The Vanderbilt case has been in the news since the story broke. The case had all the ingredients for a high publicity case. Big university , horrible rape, football players, and a popular head coach were mentioned in the press .Can a criminal defense lawyer request a change of venue ?

The short answer is yes. Rule 21 of the Tennessee Rules of Criminal Procedure allows a person accused of a crime to request the court to change the venue of the case . venue is simply where the case will be tried. One must prove the accused it is unlikely to get a fair trial because of undue excitement against the defense . Getting a fair jury may be difficult due to the news reports.

Tennessee courts have set out 17 factors that the court must consider when granting a motion for a change of venue . In my career , I have only filed one motion for a change of venue which was granted .

The trial starts today.

Intoxication as a Defense to Rape

One of the former Vanderbilt Football players accused of rape appears to be ready to put on a defense of  intoxication as a defense. The defense for Brandon Vadenburg has filed a report of an expert where they assert that alcohol  effected his mental state.

Tennessee Code Annotated 39-11-503 spells out the defense of intoxication It is divided into voluntary intoxication and involuntary intoxication .Voluntary intoxication does negate the mental element of intentional conduct. Only involuntary intoxication is a defense to assert that a person lacked substantial capacity either to appreciate the wrongfulness of the person's conduct or the conform that conduct to the requirements of the law.

The intoxication defense may be used to negate one of the elements in the aggravated rape counts. The state must prove that force or coercion was used or the defendant knows or has reason to know that the victim is mentally defective , mentally incapacitated or physically helpless.





 I have used this defense in a first degree murder case to negate intent. However , you must own the fact that it did occur. In my case , the jury returned a verdict of reckless homicide .

The trial starts on November 3rd. Let's see what happens.





Amendment 2 Where Do You stand ?

Early voting has started in Tennessee . One of the measures on the ballot is a change to Tennessee's constitution. Currently , Tennessee's constitution requires that all Supreme Court Justices shall be elected. When the amendment on judges was written in  1870 , big money from out of state was not around to influence elections . In 1971 , the state legislature passed the Tennessee plan which has withstood constitutional attacks. In an effort to clarify the issue , Amendment 2 is on the ballot this November.

The amendment reads as follows:

Shall Article VI, Section 3 of the Constitution of Tennessee be amended by deleting the first and second sentences and by substituting instead the following:

Judges of the Supreme Court or any intermediate appellate court shall be appointed for a full term or to fill a vacancy by and at the discretion of the governor; shall be confirmed by the Legislature; and thereafter, shall be elected in a retention election by the qualified voters of the state. Confirmation by default occurs if the Legislature fails to reject an appointee within sixty calendar days of either the date of appointment, if made during the annual legislative session, or the convening date of the next annual legislative session, if made out of session. The Legislature is authorized to prescribe such provisions as may be necessary to carry out Sections two and three of this article.

 In Sunday's Tennessean , Governor Haslam and Governor Bredesen issued a joint article urging the passage of Amendment 2 . Amendment 2 is endorsed by a wide range of groups from the Tennessee Bar Association to Farm Bureau Insurance. Tennessean writer Frank Daniels III takes the opposite approach in it is denying the voters right to elect the judges.

I don't like Amendment 2 but it is the lessor of two evils. A general election of the Supreme Court opens the floodgate of special interest groups spending obscene amounts of money to influence Tennessee judicial decisions. While Amendment 2 allows the executive branch and legislative branch to pick our appellate courts and Supreme Court.

Where do you stand ? Please post a comment here. All comments will be posted .





Interrogations of Juveniles

Jan Hoffman of The New York Times reported on the issue of juveniles not understanding their rights when questioned by the police. The  studies show that  a juvenile is not developmentally ready to make decisions that will impact their life forever. One common misconception is that the parents must be present when their child is questioned by the police so the parents can protect their child. It  is simply not the case. In fact , most police detectives go to the child's school to question the child. No parents are present and school administrators are compliant.


“Adolescents are more oriented to the present, so they are less likely than adults to be thinking about the future consequences of what they’re saying,” said Laurence Steinberg, a professor of psychology at Temple University who writes about teenagers in the justice system and was not involved in this study.

Teenagers, he added, are also less likely than adults to know that the police can lie during interrogations.

“The police often promise kids things in the present. ‘If you just tell me you did it, you can go see your mom,’ ” he continued. “And because the brain’s reward systems are hypersensitive during adolescence, that immediate reward of confessing will trump the thinking of, ‘What will happen when I come back to court in a month?’ ”

The research shows that juveniles have a limited capacity to understand their constitutional rights to remain silent .What should you tell your child to do if they are questioned by police ?

Dr. Steinberg suggests that parents tell teenagers: “If you’re being questioned by police because they think you’ve done something bad, say you need to talk to your parents first.” Parents can decide whether to call a lawyer.


The American Psychological Association has proposed some guidelines for interrogated juveniles:

  • Limiting the length of the interviews.
  • Videotaping the complete interview.
  • Make sure a lawyer is present.
  • Proper training in order to avoid false confessions.


In the adult criminal system , we have seen numerous examples of people being convicted on false confessions are later being exonerated by DNA evidence. Juveniles and children are most vulnerable. Protections must be in place to protect the rights of those accused of a crime.

How To Tell Your Parents That You Were Arrested ?

Last Sunday , I was enjoying my early morning routine of French press coffee , reading the Tennessean , New York Times , and Twitter. I came across a tweet from attorney Lee Rosen about a blog post from lawyer Liz  Davies . The topic of the post was " How to tell your parents your getting a divorce". it made me think about that same issue in my practice . Since Nashville is a college town with Vanderbilt , Belmont , David Lipscomb , and Tennessee State , I represent a lot of college students facing DUI and criminal charges . It gave me the idea for today's post. How to tell your parents that you were arrested ?

  • You don't have to tell them and handle it yourself.

If you do , here are some thoughts;

  • Your parents first reaction will be disappointment .Be ready to deal with it .
  • Explain what generally happened .
  • Do not give facts about the case . Precise facts should be shared only with your lawyer.
  • Tell your parents what you learned from the situation.
  • Tell your parents how you are going to avoid it from happening again and mean it.
  • Tell your parents what your thoughts are on resolving the criminal charges.
  • Once you or your parents hire a lawyer , have a telephone conference with you , your lawyer , and your parents to discuss the framework of the case and strategy. Again , do not discuss the details of the case with anyone except your lawyer.

If your in college , keep your parents in the loop about what is going on with the case. Your parents are invested in your education and future.

One last thing ,bored on Sunday morning . Please follow me on twitter


Michael Phelps Checks Into Treatment

Olympic swimming  star Michael Phelps checked into a alcohol treatment facility after his second DUI arrest. I mention his problem because some folks in Tennessee think about doing the same thing if they are arrested for a DUI. Tennessee recently enacted some new laws about  certain benefits of getting into a alcohol treatment .

Tennessee enacted the Recidivism Reduction Act of 2014 which allows for jail credit for inpatient and outpatient treatment on second and third offense DUI cases in Tennessee. The point is do not just jump into a treatment program without first contacting a DUI defense lawyer. The act was designed to give post judgment credit for alcohol treatment. The act does allow for  post judgment credit , but it needs some attention to make sure you get the credit. You can now get jail credit for treatment on a DUI third offense as well as a second offense DUI and get jail credit for intensive out patient treatment.

The teaching point from Michael Phelps case is don't dive into to treatment without checking the water.

Is a Subpoena Served Outside the State of Tennessee Valid ?

In yesterday's post , I discussed whether an subpoena served via telephone was valid . In reading the rule , something else caught my attention. Is a subpoena served outside the of Tennessee valid ? Nashville is a great city to visit. Some folks might have a little too much fun on lower Broad and get into a little misunderstanding with the police. Does a witness have to come back to Tennessee if they get a letter from the District Attorney or a subpoena from the clerk ?

There are two different rules that govern the subject. First interstate subpoenas are covered under the Uniform Law To Secure Attendance of Witnesses. Here are a couple of points. Under T.C.A. 40-17-203 ,only a judge of a court of record can issue the subpoena. So the statute does not apply in General Sessions Courts. Secondly , the court must hold a hearing to determine if the witness is material and necessary. The bottom line is this rule is only applicable in Circuit Court or criminal Court. We are back to Rule 17 of the Tennessee Rules of Criminal Procedure . Here is what part of the rule states:

(2) Service Within State. A subpoena requiring the attendance of a witness at a hearing or trial may be served any place within Tennessee.

From the plain reading of the statute , it appears that Rule 17 does not trigger the attendance of a out of state witness unless there is a application pursuant to T.C.A 40-17-201.

I have enjoyed this topic of getting back to the basics of evidence and procedure . Lawyers sometimes take the rules for granted . In this spirit , I hope to write weekly on evidence and procedure issues


Is a Subpoena Valid If It Was Served by Telephone ?

Last week a question was posted on a consumer website that allows lawyers to answer  questions posted by people looking for information. First , please do not rely on answers from attorneys on websites as legal advice. The lawyers might not know all the facts or could be lawyers from another state. The question asked  was " Is a subpoena valid if it is served by telephone." Subpoenas are a order directing a person to come to court or to come to court with certain things such as records or other tangible evidence.

Subpoenas are issued by telephone routinely in Nashville Davidson County Tennessee General Sessions Courts . Once I read the question ,  I realized that I did not know the answer. Rule 17 of the Tennessee Rules of Criminal Procedure . The rule does not speak to  service of a subpoena by telephone , however  it does address manner of service. Here is an excerpt from the rule;

(f) Service.

(1) Method of Service. A subpoena may be served by any person authorized to serve process, or the witness may acknowledge service in writing on the subpoena. The server shall deliver or offer to deliver a copy of the subpoena to the person to whom it is directed or leave a copy with an adult occupant of the person's usual residence

The rule sets forth that the server shall deliver a copy of the subpoena or offer to deliver a subpoena . In using a telephone to serve a subpoena , it is common sense that the person subpoenaed does not get a copy. The question is does the person on the phone offer to deliver a copy. There is no clear answer to the question. It appears that if the server did not offer to deliver a copy of the subpoena , the service of the subpoena may be invalid .

Tomorrow, Is a subpoena served out of state valid ?

Take Control of Your Schedule

I had posted some suggestions set out by lawyer Nicole Black on how to be a happy lawyer . One of her suggestions is to take control of your calendar . I could not agree more. Criminal defense lawyers in Nashville, Tennessee calendars are set by the court. Settlement dates, arraignments , motion hearings , trials , plea dates are set by the court or the clerk. Lawyers must gain control of their calendar in order to establish a work-life balance. This week a trial court set a murder trial for a defense lawyer on the week of his wedding which might be over the top.

What do we need to do in order to gain control of our calendar and our lives ?

  • When we file a motion in criminal court , put a notice of when you want the motion to be heard rather than filing the motion and getting the notice from the clerk when you have a conflict.
  • Block out some personal time or vacation time for 2015 now.
  • Block out the day after you get back to catch up , return calls ,  and take care of office business rather than launch into a trial on your first day back.
  • Set all of your cases on one day. In the new domestic violence docket , you might be able to set all your cases on one day of the month.
  • Block out time of the week for you. last summer , I left the office at 4:30 every Wednesday to play nine holes of golf in a weekly tournament.

Practicing law is hard enough without placing undue stress on yourself. Lord knows I have been doing it for years I have often had court in different counties at the same time. I just hope I can start practicing what I am preaching.