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

In today's criminal news , Knox County Assistant District Attorney Kevin Allen was charged with Driving Under The Influence (DUI) in Anderson County,Tennessee.Mr. Allen was also charged with violating the implied consent law for refusing to take the blood or breath alcohol test. A violation of the implied consent charge carries a loss of license for  months.

Remember Mr. Allen is presumed innocent until he is found guilty beyond a reasonable doubt. The reason I am mentioning the case is that even prosecutors realize that submitting to a blood alcohol test or breath test is not such a good idea.

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Mortgage fraud cases are on the rise across the country.The FBI is holding a mortgage fraud task force meeting in Miami ,Fl. In Florida , the mortgage fraud problem has reached epidemic proportions. Mortgage fraud cases have even popped up in the Federal District Courts here in Tennessee.The Wall Street Journal has recently published stories on the topic.

As long as criminals are out to make a quick buck by preying on homeowners and lenders, we will continue to work side-by-side with our partners to protect the American dream for years to come and ensure that criminals who try to enrich themselves through mortgage fraud schemes are brought to justice,” said FBI Deputy Assistant Director for the Criminal Investigative Division Karen Spangenberg

 

There was no oversight when all the bankers were making the obscene profits.Now the FBI wants to crackdown.Where were they when we needed them the most.

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Drug Interdiction cases are on the rise on Tennessee interstates A trip down I-40 or I-24 will reveal all types of police drug interdiction units.I prepared a short video of the ins and outs of defending a drug interdiction case.Here's some tips on how to beat a drug interdiction case.

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Charles Dean Hood sits on death row in Texas. After the trial , it was discovered that Judge Verla Sue Hood and the prosecutor Thomas S. O'Connell were having an extramarital love affair during the trial.Recently, Texas's highest court for criminal matters rejected Mr.Dean's appeal.The court held Mr.Hood waited too long to raise the issue  of whether a love affair between the judge and the prosecutor could create a conflict of interest.

 “A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself,” the brief from the ethics experts said. “Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative.” Reported Adam Liptak of the New York Times.

A former governor, former FBI director,U.S. Attorney, and a host of other judges and prosecutors have filed a brief in support of Mr. Hood's appeal to the United Supreme Court.

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 Tennessee's version of the DUI Ignition Interlock Law has moved forward. Currently there are two  of the  being proposed. House Bill 2768 by Representative Shipley is less restrictive than House Bill 2917 which is being pushed by MADD.House Bill 2917 would require an ignition interlock device of everyone that is convicted of drunk driving in Tennessee with no exceptions.

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A North Carolina special state innocence commission recommended that a man convicted of murdering a prostitute be set free.A three judge panel found by "clear and convincing evidence" that Gregory F.Taylor was innocent and had been convicted with questionable evidence and untrustworthy testimony.Mr.Taylor is free today.

North Carolina is the only state that has established an Innocence Inquiry Commission.A eight member panel reviews claims of innocence by inmates.After a review of the claim, the case may be sent to a three judge panel if the first panel finds the claim has merit.

"North Carolina's commission is an important model for the adjudication of innocence claims"' said Barry Scheck of the New York Innocence Project.The Innocence Project uses DNA evidence to overturn wrongful convictions.However, over 90% of criminal cases  does not involve DNA evidence reports Robbie Brown of the New York Times.

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The John Jay College of Criminal Justice  has announced a special showing of the BBC documentary "The Truth About Crime". The documentary is a fascinating study of the effects of crime and law enforcement in a town in England.It will be shown on the web and you can register here to watch the program.After the showing , a panel discussion will be held to discuss law enforcement issues and community services. It's a must see for those in the criminal justice system

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Gun charges in Nashville ,Tennessee are serious business especially if you have a felony record.Rule 1,if you have a record please do not carry a weapon.You may wind up charged in federal court.There may be some new laws in Tennessee this term in the state legislature like the guns in bars bill.

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Dahlia Lithwick covers the U.S.Supreme Court for Slate.Ms Lithwick reviewed  the book "Autobiography of an an Execution' by David Dow. Mr. Dow wrote an autobiography of his work in defending those who got the death sentence.NPR interviewed Mr. Dow about his book and his work in the field of capital punishment.It was an excellant interview that I happened to catch.

In the "Upfront "section of the New York Times Book Review, Ms. Lithwick is asked the question of what Americans don't know about the legal system.She replied :"That the legal system might be the single worst place to seek closure."  whatever closure is.Nobody is happy after a trip to  court.Nobody  ever feels vindicated or truly heard.."

I agree in some of her comments especially in the area of divorce or civil law.However, the criminal justice system provides closure.You enter a plea bargain ,the state may dismiss or you set it for trial.At trial, you will hear guilty of not guilty by the jury foreman . Case closed except for the appeals.

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Most counties outside of Nashville Davidson County use blood tests to determine blood alcohol concentration.Most police departments in Willamson County such as Franklin Police Department and Brentwood Police Department always request a DUI suspect to submit to a blood alcohol test.Also Sumner County law enforcement agencies like Hendersonville Police Department and Gallatin Police Department use blood alcohol tests as well. Here's a short video on some issues that come up in a DUI blood test case. 

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Nashville ,Tn. television station WSMV is running gavel to gavel coverage of the trial of Ron Killings this week. Killings is on trial for the homicide of a young girl.It is alleged that Killings was driving his car at twice the legal speed when he struck and killed the young girl.  Killings was on duty as a law enforcement officer in Rutherford County.The District Attorney's theory was that it was a reckless homicide.A jury was brought in from Chattanooga,Tn to decide the case.Mr. Killings attorney moved for a change of venue due to pretrial publicity.

Rule 21 of The Tennessee Rules of Criminal Procedure provides for a change of venue under certain conditions.The court may change venue of a criminal case on the defendant's motion or on it's own initiative with the defendant's consent.The court should order a venue change when a fair trial is unlikely because of undue excitement against the defendant in the county where the offense was committed or for  other cause.

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Men's Health Magazine listed America"s drunkest cities in a recent article.How did they determine the list ? The list was based upon death rates from liver disease, alcohol impaired car crashes , the number of DUI arrests , and the severity of the punishment.Two Tennessee cities made it on the top 100 list. Nashville,Tn was number 14.Memphis ,Tn was number 71.

Last week , I had a hearing where the head of  Metro Nashville Police Department"s Traffic enforcement unit testified on the statistics on DUI arrests and vehicular homicide cases in Nashville.

Here are the numbers:

1.In 2009, there were 4238 DUI arrests and 24 traffic deaths related to impaired driving.

2.In 2008, 5595 DUI arrests and 24 traffic deaths were related to impaired driving.

There was no report of the number of vehicular homicide convictions in these past two years.

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Nicole Young and Clay Carey of The Tennessean reported about the use of social media by Detective Dean Haney of the Metro Nashville Police Department to combat crime.The use of social media such as Facebook,Twitter , and My Space is growing at a tremendous rate. I even have a Facebook page.Using Facebook and other social media in criminal and personal injury cases have been used since it's inception, but now it's use is exploding.

Detective Haney searches the photos he retrieves from MySpace and Facebook to post on the wall at Nashville's North Precinct.It amazes me what people post on Facebook.Haney reports that he has seen AK-47 rifles , weapons, and stacks of cash.In under age consumption of alcohol cases , The Franklin Police Department and the Brentwood Police Department routinely search social media sites to corroborate the charges.Police in Chattanooga,Tn discovered an on line forum of people planning illegal drag races.

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On Sunday , the New Orleans Saints and the Indianapolis Colts do battle in Super Bowl XL IV.Sports bars will be packed with fans cheering on their favorite team. TheTennessean ran a list of sports bars that are running wing and draft beer specials.Fans across Tennessee will be out going to Super Bowl parties.However, DUI enforcement units will be out in force as well in Nashville,Sumner County ,and Williamson County.

Police officers in Middle Tennessee routinely step up DUI enforcement around "adult holidays".The Super Bowl's one of the premier sporting events in our country.Police are probably planning DUI checkpoints and will be putting extra officers on the roadways.Failure to signal , driving with expired tags, or weaving are all valid reasons to pull a driver over on Super Sunday.

Some drivers may want to research the location of DUI checkpoints or roadblocks before heading out to watch the game. Most times the police publish the location of the DUI checkpoints in advance.Simply goggle Tennessee DUI roadblocks or list Tennessee Highway Patrol or your your local police for example Franklin Police Department .

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It happens to every criminal lawyer both prosecutor and defense attorney. What to you do when your witness is missing ? Florida trial lawyer Elliott Wilcox, who writes the publication Trial Theater , wrote an article on his weekly newsletter on tips when your witness flies the coop or  is late to court. I highly recommend signing up for his free report Here's his tips plus my take.

1. Avoid the situation. Use your support staff as your witness coordinator. The District Attorney's Office in Nashville , Tn.uses victim witness coordinators to coordinate witnesses. Use your legal assistant or paralegal to do the same thing.Written directions are helpful to give the witness as well as telling them to be present 30 minute early. I would also suggest your witness coordinator sit at counsel table during the trial.Be mindful to instruct them regarding the sequestration rule .

2.Have a filler witness ready to go.I don't know about this tip. I want to keep my witnesses  short so some D.A  doesn't hammer an unsuspecting witness.

3.Take the heat. I like this one best.You have the law license.You take responsibility. A judge I clerked for gave me this advice and I still use it today.Most judges will give an attorney a little room if a witness is not there on time.

4.Ask for a break. If your staff has done their job they will pass a note that the alibi witness just got arrested. Ask for a break.Collect your thoughts and blow up the witnesses cell phone .

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 A criminal defense attorney's work is not limited to jury trials.Most of the day to day work a criminal defense lawyer performs is trying to persuade a judge to embrace their legal position.From sentencing hearings , probation violation hearings , bond reduction hearings , and motions to suppress evidence , an attorney has to be able to make their case to the judge.

I have been rereading parts of Justice Antonin Scalia and Bryan Garner's book , Making Your Case The Art of Persuading Judges.There are three main points that bears mentioning for my fellow attorneys.

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My wife is  from Sparta ,Tn.Several years ago , her father purchased her a subscription to the local paper, The Expositor ,to keep up with local news. I often read the paper because I enjoy reading about small town life and the fabric it adds to being a Tennessean.However , I was shocked at a new feature the paper has added.

The Expositor has chosen to publish " Arrested in White County ".The Sparta, Tn.Newspaper publishes the names, photographs , and criminal charges of all those folks that have been arrested in White County. from January 1st to January 25th.  The Sparta paper does include a disclaimer that all those in this piece of journalism is innocent until they are convicted.However, once their picture is in print the damage is done.From reading the eight page report , the most popular crimes are promotion of methamphetamine  manufacture and domestic assaults. 

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