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

Scott Greenfield writer of Simple Justice posted about an issue on jury selection which is the most crucial part of a trial. The Ohio Supreme Court reversed a homicide conviction because the trial judge refused to dismiss a deaf juror from the panel for cause in State v. Speer.The basic facts were that the trial judge refused to excuse a juror due to her hearing disability.The juror advised the court she would have problems understanding testimony if she could not look at the lips of the speaker.A right to a fair trial equals a jury that is able to see and hear all the evidence presented.

Under Tennessee Law , I don't this issue would have been a problem at trial.Tennessee Code Annotate 22-1-103  allows a juror to be excused if that juror has a condition that renders that person incapable of performing jury service.

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One of the most frequently asked questions that I get in representing those accused of drunk driving is "Can I get a restricted drivers license." If you have been convicted of a first offense DUI/DWI or an implied consent violation , you can get a restricted driver's license. The video shows how to get your restricted driver's license.

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I ran across some great information from www.immigrationdefenselproject.org on the Padillia case. Here' is the main points

Some Key Padilla Take-Away Points for Criminal Defense Lawyers

• Deportation is a “penalty,” not a “collateral consequence,” of the criminal proceeding. The Court held that deportation is a “particularly severe ‘penalty’” and made clear that the “direct vs. collateral” distinction does not apply to immigration consequences and does not preclude ineffective assistance of counsel (IAC) claims based upon failure to provide correct advice about immigration consequences.

• Professional standards for defense lawyers provide the guiding principles for what constitutes effective assistance of counsel. In support of its decision, the Court relied on professional standards that generally require counsel to determine citizenship/immigration status of their clients and to investigate and advise a noncitizen client about the immigration consequences of alternative dispositions of the criminal case.

• The Sixth Amendment requires affirmative, competent advice regarding immigration consequences; non-advice (silence) is insufficient (ineffective). In reaching its holding, the Court expressly rejected limiting immigration-related IAC claims to cases involving misadvice. It thus made clear that a defense lawyer’s silence regarding immigration consequences of a guilty plea constitutes IAC. Even where the deportation consequences of a particular plea are unclear or uncertain, a criminal defense attorney must still advise a noncitizen client regarding the possibility of adverse immigration consequences.

• The Court endorsed “informed consideration” of deportation consequences by both the defense and the prosecution during plea-bargaining. The Court specifically highlighted the benefits and appropriateness of the defense and the prosecution factoring immigration consequences into plea negotiations in order to craft a conviction and sentence that reduce the likelihood of deportation while promoting the interests of justice.

Also , thanks to www.lawofcriminaldefense.com

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  Brad Stone of the New York Times wrote an article on Crraigslist and law enforcements efforts to curtail it's sex ads.Craigslist is the Internet site to go find prostitutes. Craigslist has collected over 36 million dollars in ad revenue recently on sex ads. Even , the mob has gotten into Craigslist. Members of the Gambino crime mob has recently been arrested by the Federal Bureau of Investigation for soliciting prostitution with minor girls on the popular Internet classified site.

Metro Nashville Police use Craigslist as well as the Backpages to post prostitution ads. The police post an ad and hope someone answers the ad and  the police set up an undercover reverse sting to arrest those who are engaging in patronizing prostitution.Metro Nashville Police even take photographs of those given a criminal citation and post their picture on the police website. It appears everyone is using Craigslist.

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 Criminal defense lawyers in Tennessee and across the country are struggling with the fallout from the recent case from the U.S. Supreme Court.In Padilla v. Kentucky , a copy of the opinion is attached to the link, the court held the conviction was invalid based upon the criminal defense attorney's representation of the effects of the plea bargain on his immigration status.Years ago, I learned of the collateral effects of a criminal conviction on one's  immigration status.Here is a  few  suggestions ;

1. For attorneys, place in bold print in your fee agreement that you will not give any advice on immigration issues.Divorce attorneys do this all the time on tax advice during representation in a divorce.

2. For clients and criminal defense attorneys , consult with your immigration lawyer or hire one for an opinion letter advising on the immigration consequences of a plea bargain agreement or guilty plea.

3. In the plea petition , write a sentence in the agreement that you are not making any representations of any collateral effect on the client's immigration status as a result of the plea.

The Padilla case may have  a more widespread impact on plea agreements that just immigration cases.My prediction is that the failure to advise of any collateral consequence of a plea bargain agreement or a trial may result in a finding of ineffective assistance of counsel. Criminal cases may impact numerous areas of one''s life from professional licenses such as a nurse or doctor to out of state driver's licenses.Careful planning at the plea agreement may prevent a pound of cure.

I would like to invite any comments on how to deal with this issue.

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On March 19^th 2010 , the Tennessee Supreme Court decided State v. Talley. The issue was whether an owner of a condominium has a reasonable expectation of privacy in the commonly owned hallway of the complex. The Fourth Amendment of the U.S. Constitution and Article I, section 7 of the Tennessee Constitution protect against warrantless search and seizures, including the curtilage of the home, which is defined as any area adjacent to a residence in which an individual can reasonably expect privacy. For example ,s storage shed or detached garage would be a curtilage of a house.

The Sixth Circuit Court of Appeals enunciated a bright-line rule in United States v. Carriger that officers may not enter the common areas of a locked building without a warrant due to the expectation of privacy that only the resident and other residents and their invited guests would have access to the common areas. It appears that the Sixth Circuit, along with several State Supreme Courts, follows this bright-line rule. 

In contrast, the Tennessee Supreme Court held in Talley that the totality of the circumstances should control. The deciding factors are whether the defendant owns the property or has a possessory interest in it, is legitimately on the premises, has the right to exclude others from that place, has shown a subjective expectation that the place would be free from governmental invasion, and took normal precautions to maintain his privacy. These factors were first used by courts in Tennessee in 1982. The Second, Fifth, Eighth, Ninth, and Eleventh Circuits all appear to use the same totality of the circumstances factors. 

Although state courts within a particular federal district may consider what the lower federal courts have decided, the state courts are not required to follow those decisions.   The result? Depending on what state you live in, and perhaps whether the charges are filed in state or federal court, you may or may not have a right to privacy in these secured common areas. This so called split of authority among the circuits will only be resolved when the United States Supreme Court takes a case and finally decides for all of us what the Constitutional right to privacy means in this context.  

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Criminal records are public record, and now thanks to the Davidson County Criminal Court Clerk it’s a little easier for residents to check up on their neighbors. Their website features an interactive map providing arrest details for all crimes that have occurred in the last seven days. You can check it out here ; http://ccc.nashville.gov/portal/page/portal/ccc/crimeMap/  The map is searchable by zip code and provides arrest data by the address of the defendant, so you can check up on your neighbors without having to peek through the blinds. Once you’ve chosen someone on the map to get more information on, you can click on their name to get details of the alleged crime, including a copy of the warrant, their bond amount, court dates, attorneys name, along with their entire arrest history in Davidson County.  

A quick, unscientific review seems to show that most alleged crimes are not occurring at the address of the defendant. This leads one to wonder if it may have been more practical to provide the data by the address where the alleged crime actually occurred. TheTennessean online provides a searchable database of reports made to Metro Police all the way back to November 2007. There, you can get a list of calls dispatched within up to a five mile radius of an address in any given date range. The log doesn’t provide names though, only the type of call, date, and address. 

According to Nielsen Online, approximately 75% of North Americans have internet service and usage has grown by 140% over the last decade. The internet provides a wealth of information at our fingertips. And now, calling the police or getting arrested in Nashville gives the entire community a chance to be Big Brother. 

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 Normally , I don't discuss my cases for the this blog  for  many reasons .However , this story bears mentioning. Yesterday , I was in General Sessions Court in Gallatin, Tennessee representing someone  on a domestic  violence charge.The alleged victim did not show up as well as the police officer who took out the warrant. I moved for a dismissal for failure to prosecute the criminal charges.The court continued the case on the state's motion.I had to appear , my client had to appear and we had to prepare for court. If she did not show up , a failure to appear charge would be filed and the bond could be increased or revoked. Different result for my client verses the state.

Therefore , the question is "Should the sword of justice cut both ways." Yes it should , but it's not the reality.

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An  East Tennessee man was charged with DUI for driving his lawn mower. In Athens ,Tennessee , a man was driving his lawn mower while he had some fishing poles. There was no report if he he was charged with fishing without a license.

Can the police arrest this poor soul why riding his lawn mower ? Yes. Under Tennessee"s drunk driving law found at Tennessee Code Annotated 55-10-401. A citizen can be charged with DUI if they operate a motor driven vehicle on any of the public roads and highways of the state,or any streets or alleys or shopping centers and the like or any premises open to the public at large.

The DUI laws make it illegal to drive anything motorized under the definition of Tennessee's"s DUI law such as an ATV , Moped, Lawn Mower or even a scooter.

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 A drunk driving case (DUI) is a case of opinions. The police have an opinion that the defendant is impaired.Your client has a different opinion of their sobriety. How does a criminal defense attorney rebut the police officers testimony ? Witnesses may need to be called to attack the police testimony.Here's a list of potential witnesses a DUI lawyer should consider:

1. Friends , companions , or spouse.
2. Bystanders at the scene.
3. Bartenders, waiters, or waitresses.
4. Witnesses who know the defendant's physical or speech problems
5. My personal favorite is the valet.
6. People who spoke to the defendant by cell phone or communicated by text message.
7. The bondsman or whoever picked up the accused from jail.

Remember , please interview these witnesses before a trial or hearing.One warning of this list of witnesses is the bartender.Use a bartender with caution.For example , the defendant is a regular customer of that bar does not bode well for an effective defense. Here's the problem testimony. "Joe comes in here all the time"  said the bartender and " he never has more than six beers and four shooters." How fast can the jury say guilty.

Witness selection in drunk driving cases can be used effectively , but be careful.

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Purdue Pharma has taken action to prevent abuse of it's powerful painkiller OxyContin.Purdue has taken steps to reformulate OxyContin to prevent the pill from being cut,broken,chewed,crushed or dissolved to release more medication that increase the risk of drug abuse and overdoses.It is predicted the new format will result in less abuse by inhaling or injection.OxyContin and Loratab are the most drugs that are most abused from my experience.Prescription pill abuse has wide reaching effects from drugged driving that leads to DUI and vehicular assault ,drugged driving , and to the sale of a controlled substances for resale.

It appears one drug company is finally assuming responsibility to protect the public.

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Facebook , Twitter and other forms of social media are exploding. I am constantly amazed at what people put on their Facebook or MySpace. Police and District Attorneys are looking at you.My advice is if you are facing criminal charges in Tennessee is to take down all social media.Live without it until your case is over. The video illustrates this point when I ran a witness in a case and look what showed up on MySpace

.The witness had images of himself with a whole lot of marijuana. After  the court looks at these images, what do you think the credibility of this witness is going to be ? 

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Numerous problems in San Francisco's forensic crime lab have resulted in hundreds of drug cases being dismissed and hundreds more are under investigation.The root of the problem are accusations that an employee of the San Francisco Police Department's crime lab was stealing cocaine.

Lab Tech Deborah Jean Madden is under investigation for theft and possibly evidence tampering.The crime lab was shut down in early March.Over 600 drug cases have been dismissed so far.San Francisco's crime lab is not independent from the police department.

Police Chief George Gascon ordered an audit of the crime lab which found several problems including problems in the "chain of custody" record keeping for seized drugs. and improperly sealed drug envelopes.The audit found the evidence tampering would have been prevented had good laboratory practices been in place.

It appears the police knew of the problems with Ms.Madden as long ago as 2005 when 4 grams of cocaine handled by Ms. Madden came up missing in a federal racketeering trial Ms.Madden had been repeatedly counseled when she failed to follow laboratory protocol.

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The United States Supreme Court ruled that criminal defense lawyers have a Sixth Amendment obligation to warn their clients when their guilty pleas can result in deportation.Justice Stevens wrote the majority opinion that held that the criminal lawyer representing Jose Padilla should have advised him that a guilty plea to transporting marijuana would make him subject to automatic deportation.

"When the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear," Stevens wrote.

“We now hold that counsel must inform her client whether his plea carries a risk of deportation,” Stevens said. “Our long-standing Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.”

The bottom line of the opinion is that a criminal defense lawyer provides ineffective assistance of counsel if he or she misleads a non-citizen about the collateral consequences of a criminal conviction.

Justice Scalia dissented from the majority.

“In the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised,” Scalia said. “The Constitution, however, is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed.”

The lesson from this case for criminal defense attorneys and clients is a consultation with a immigration lawyer to determine the ramifications of any plea bargain and their immigration status. Don't enter into a plea until you know how it might effect your legal residency status.

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Proposed House Bill 3283/Senate Bill 3347 which would have eliminated Pre-trial Diversion was before both the Tennessee House and Senate Judiciary Committees on March 30th.  Both committees heard testimony from all sides, including the Public Defenders Conference, the District Attorneys Conference, and the Tennessee Association of Criminal Defense Lawyers. Only the House Committee voted, and the bill was defeated 7-5. Pretrial diversion is used for first-time offenders accused of misdemeanors or minor felonies. It was created in 1974 to help people who have made a mistake in judgment avoid a trial or guilty plea by agreeing to serve an immediate term of probation, and if they stay out of trouble for the duration of that term the charges are dropped and they can have their records wiped clean again. Over the last 10 years, approximately 250 people have completed a pretrial diversion program in Nashville alone. Pretrial diversion is not as popular or commonly used as judicial diversion though. Judicial diversion works similarly, yet is at the discretion of the judge and occurs only after a conviction at trial or a conditional guilty plea. 

Along the same lines, House Bill 3538/Senate Bill 2901 which would increase the mandatory drug testing fee from $100 to $250 and impose fines on granting of pretrial or judicial diversion has also been on the calendars in the House and Senate Judiciary Committees. On March 23^rd, the House voted 5-3 to recommend the bill for passage and the bill is on the Senate Judiciary Committee calendar for hearing on April 7^th. The fines are to be deposited in a new state fund called the TBI Drug Chemistry Unit Drug Testing Fund. Monies deposited in this fund are earmarked to fund forensic scientist positions, maintain and upgrade equipment and supplies, provide training for employees, and other uses determined to improve the efficiency of the TBI. 

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