One of the most common questions I get is, "Why was I charged for drunk driving if I was parked in my car?" Under Tennessee law, a person can be charged for drunk driving (DUI) even if they are asleep in the back seat of the car. I created this short video of various factors the court or jury can consider when deciding whether you were in physical control of your car. Also, here is a recent case that discusses the issue.
Detroit Lions team president Tom Lewand failed field sobriety tests and his blood alcohol content was more than twice the legal limit in two breath tests administered by Roscommon County Sheriff's deputies who observed him driving erratically late Friday, reports USA Today. I normally don't blog about celebrity DUI arrests however there are two points worth discussing.
I wonder why Tennessee uses only one breath or blood alcohol test. Interestingly, the National Safety Council recommends 2 tests.
One of the hidden benefits of being a criminal defense attorney in Nashville , Tennessee is that I handle cases all over Tennessee. Today , I had a couple of cases in Springfield, Tn. With one case in the morning and one in the afternoon , I thought I would find a great local restaurant .
Mission accomplished. I had lunch a J.I. Baldwin and Son on Church Street in Springfield. I had a great plate lunch of chopped pork BBQ. The difference was the cornbread sliced in a thick loaf slice and a fiery vinegar sauce.You should also try the broasted chicken. Once I bit into it . I was in chicken heaven. i asked what was broasted chicken. Baldwin's secret was that they cook the chicken in a pressure cooker to eliminate some of the grease.If your in Springfield , Tennessee , try Baldwin's.
This is the first review on the blog . I might have been boring writing about the law. I would appreciate any feedback on this new feature and any other topics you might want covered.
Today , I am going to the Tennessee Association of Criminal Defense Lawyers continuing legal education seminar. Marica Shein is presenting on a sentencing issues in Federal criminal cases.
I am going to try something new today. I will be posting updates from the seminar on Twitter. Heres the link to my Twitter feed.
Warning: all telephone calls made from the Nashville Davidson County Jail are recorded. This is a friendly reminder that all calls in most jail and prisons are recorded and will be used against you. The District Attorney's Office in Nashville,TN is well schooled in the use of jail house recordings. In a recent drug case I handled there were thousands of jailhouse recordings between some of the defendants and their family members. In fact, a Florida sheriff has announced that even telephone calls made from jail to their attorneys will be recorded and given to the prosecutors office.
So, my criminal law tip of today is don't say anything to the police, exercise your right to remain silent, and don't talk on the phone to your family about your case unless you want the whole world to know the details of your case.
In yesterday's post, I posted Tennessee's law on stalking. That provides a backdrop for today's blog post. Cyber stalking is accomplished by text messaging or other means of electronic communication. I spoke with an Assistant District Attorney here in Nashville,TN who handles domestic violence cases, and he reported that he recently prosecuted a case in which cyber stalking was done via Facebook messages.
An article in the Washington Post illustrates the growing problem in dating violence. The Post reported that one women received over 758 texts in one day. Cyber stalking may also be involved in the Virginia lacrosse player's murder. The defendant in her murder case removed the computer when he fled the scene of the crime.
"What technology offers is irrefutable evidence of the abuse," says Cindy Southworth, founder of the Safety Net Project on technology at the National Network to End Domestic Violence, who says it helps in court and is hoping for an increase in conviction rates.
Most electronic communication leaves digital evidence of the contact. Unconsented contact is defined in T.C.A. 39-17-315
(5) “Unconsented contact” means any contact with another person that is initiated or continued without that person's consent, or in disregard of that person's expressed desire that the contact be avoided or discontinued. Unconsented contact includes, but is not limited to, any of the following:
It includes sending mail or any electronic communications to that person.
So be careful what you say and how often you say it.
Stalking is a crime that is usually grouped in the various crimes that are classified as a domestic violence charge. So , I thought that providing a copy of Tennessee's stalking law may be helpful in discussing this topic.
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39-17-315. Stalking, aggravated stalking, and especially aggravated stalking. — |
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(a) As used in this section, unless the context otherwise requires: |
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(1) “Course of conduct” means a pattern of conduct composed of a series of two (2) or more separate noncontinuous acts evidencing a continuity of purpose; |
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(2) “Emotional distress” means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling; |
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(3) “Harassment” means conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable person to suffer emotional distress, and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose; |
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(4) “Stalking” means a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested; |
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(5) “Unconsented contact” means any contact with another person that is initiated or continued without that person's consent, or in disregard of that person's expressed desire that the contact be avoided or discontinued. Unconsented contact includes, but is not limited to, any of the following: |
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(A) Following or appearing within the sight of that person; |
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(B) Approaching or confronting that person in a public place or on private property; |
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(C) Appearing at that person's workplace or residence; |
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(D) Entering onto or remaining on property owned, leased, or occupied by that person; |
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(E) Contacting that person by telephone; |
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(F) Sending mail or electronic communications to that person; or |
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(G) Placing an object on, or delivering an object to, property owned, leased, or occupied by that person; and |
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(6) “Victim” means an individual who is the target of a willful course of conduct involving repeated or continuing harassment. |
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(b) (1) A person commits an offense who intentionally engages in stalking. |
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(2) Stalking is a Class A misdemeanor. |
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(c) (1) A person commits aggravated stalking who commits the offense of stalking as prohibited by subsection (b), and: |
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(A) In the course and furtherance of stalking, displays a deadly weapon; |
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(B) The victim of the offense was less than eighteen (18) years of age at any time during the person's course of conduct, and the person is five (5) or more years older than the victim; |
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(C) Has previously been convicted of stalking within seven (7) years of the instant offense; |
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(D) Makes a credible threat to the victim, the victim's child, sibling, spouse, parent or dependents with the intent to place any such person in reasonable fear of death or bodily injury; or |
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(E) At the time of the offense, was prohibited from making contact with the victim under a restraining order or injunction for protection, an order of protection, or any other court-imposed prohibition of conduct toward the victim or the victim's property, and the person knowingly violates the injunction, order or court-imposed prohibition. |
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(2) Aggravated stalking is a Class E felony. |
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(d) (1) A person commits especially aggravated stalking who: |
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(A) Commits the offense of stalking or aggravated stalking, and has previously been convicted of stalking or aggravated stalking involving the same victim of the instant offense; or |
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(B) Commits the offense of aggravated stalking, and intentionally or recklessly causes serious bodily injury to the victim of the offense or to the victim's child, sibling, spouse, parent or dependent. |
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(2) Especially aggravated stalking is a Class C felony. |
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(e) Notwithstanding any other provision of law, if the court grants probation to a person convicted of stalking, aggravated stalking or especially aggravated stalking, the court may keep the person on probation for a period not to exceed the maximum punishment for the appropriate classification of offense. Regardless of whether a term of probation is ordered, the court may, in addition to any other punishment otherwise authorized by law, order the defendant to do the following: |
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(1) Refrain from stalking any individual during the term of probation; |
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(2) Refrain from having any contact with the victim of the offense or the victim's child, sibling, spouse, parent or dependent; |
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(3) Be evaluated to determine the need for psychiatric, psychological, or social counseling, and, if determined appropriate by the court, to receive psychiatric, psychological or social counseling at the defendant's own expense; |
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(4) If, as the result of such treatment or otherwise, the defendant is required to take medication, order that the defendant submit to drug testing or some other method by which the court can monitor whether the defendant is taking the required medication; and |
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(5) Submit to the use of an electronic tracking device, with the cost of the device and monitoring the defendant's whereabouts, to be paid by the defendant. |
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(f) In a prosecution for a violation of this section, evidence that the defendant continued to engage in a course of conduct involving repeated unconsented contact with the victim after having been requested by the victim to discontinue the conduct or a different form of unconsented contact, and to refrain from any further unconsented contact with the victim, is prima facie evidence that the continuation of the course of conduct caused the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested. |
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(g) (1) If a person is convicted of aggravated or especially aggravated stalking, or another felony offense arising out of a charge based on this section, the court may order an independent professional mental health assessment of the defendant's need for mental health treatment. The court may waive the assessment, if an adequate assessment was conducted prior to the conviction. |
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(2) If the assessment indicates that the defendant is in need of and amenable to mental health treatment, the court may include in the sentence a requirement that the offender undergo treatment, and that the drug intake of the defendant be monitored in the manner best suited to the particular situation. Monitoring may include periodic determinations as to whether the defendant is ingesting any illegal controlled substances, as well as determinations as to whether the defendant is complying with any required or recommended course of treatment that includes the taking of medications. |
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(3) The court shall order the offender to pay the costs of assessment under this subsection (g), unless the offender is indigent under § 40-14-202. |
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(h) Any person who reasonably believes they are a victim of an offense under this section, regardless of whether the alleged perpetrator has been arrested, charged or convicted of a stalking-related offense, shall be entitled to seek and obtain an order of protection in the same manner, and under the same circumstances, as is provided for victims of domestic abuse by the provisions of title 36, chapter 3, part 6. |
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(i) When a person is charged and arrested for the offense of stalking, aggravated stalking or especially aggravated stalking, the arresting law enforcement officer shall inform the victim that the person arrested may be eligible to post bail for the offense and to be released until the date of trial for the offense. |
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(j) If a law enforcement officer or district attorney general believes that the life of a possible victim of stalking is in immediate danger, unless and until sufficient evidence can be processed linking a particular person to the offense, the district attorney general may petition the judge of a court of record having criminal jurisdiction in that district to enter an order expediting the processing of any evidence in a particular stalking case. If, after hearing the petition, the court is of the opinion that the life of the victim may be in immediate danger if the alleged perpetrator is not apprehended, the court may enter such an order, directed to the Tennessee bureau of investigation, or any other agency or laboratory that may be in the process of analyzing evidence for that particular investigation. |
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(k) (1) For purposes of determining if a course of conduct amounting to stalking is a single offense or multiple offenses, the occurrence of any of the following events breaks the continuous course of conduct, with respect to the same victim, that constitutes the offense: |
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(A) The defendant is arrested and charged with stalking, aggravated stalking or especially aggravated stalking; |
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(B) The defendant is found by a court of competent jurisdiction to have violated an order of protection issued to prohibit the defendant from engaging in the conduct of stalking; or |
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(C) The defendant is convicted of the offense of stalking, aggravated stalking or especially aggravated stalking. |
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(2) If a continuing course of conduct amounting to stalking engaged in by a defendant against the same victim is broken by any of the events set out in subdivision (k)(1), any such conduct that occurs after that event commences a new and separate offense. |
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I thought a little DUI video might be in order . I have been out of town and had a trial last week in Ashland City , Tn. So, I thought to get back in the swing a little humor might be appropriate. Thanks to Jamison Koehler a Northern Virginia DUI lawyer for the tip.
Keep me posted on your thoughts to the video.
I was reading Flem Whited's "Drinking and Driving Law Letter " today.One case that was interesting was a case out of Illinois. In People v. McPeak , the court reversed a DUI conviction based upon the use of marijuana. The court held that the odor of cannabis coming from the defendant's person coupled with his own admission that he had " taken two hits about an hour ago" was insufficient to sustain a conviction for DUI.
Now, the next question is why the smell of marijuana is enough to justify a search of a car based upon the smell of burnt marijuana. Smell alone should not be the basis of a warrantless search absent some corroborating evidence of drug usage.
On another note, one question you should ask an attorney you are considering hiring is does he or she read the " Drinking and Driving Newsletter.'
It may be an indication of how that attorney keeps up on new developments of the drunk driving law.
I ran across " The Right to Present a Defense" by Mark Mahoney. You can download the article on the link. It's a great resource for criminal defense lawyers in Tennessee. Thanks to the law criminal defense of for the tip.
I thought the book cover of " To Kill a Mockingbird" was a great image in the right to present a defense post.
Is the breath test machine reliable in Nashville driving under the influence (DUI) cases ? Let's ask the folks in Washington D.C. The Washington Post reported that over 400 DUI convictions were based upon inaccurate results.The Post reported that someone improperly set the baseline alcohol concentration levels on the breath test machine.Is there problems happening in Nashville DUI cases ?
The answer is unclear due to the following reasons :
So, the answer is who knows.However there are a bunch of people who were falsely convicted of driving under the influence (DUI) in Washington D.C. that don't think so.
In this post , i continue to discuss the Metro Nashville Police Department's DUI testing report. The first field sobriety test given is usually the horizontal gaze nystagmus test. Laboratory research by the Southern California Research Institute indicates the HGN test is 77 % accurate according to the 2006 NHTSA manual in determining blood alcohol levels over .010. There has been no peer review of these studies that I have read.
Under current Tennessee case law , the horizontal gaze nystagmus test (HGN) is inadmissible . In State of Tennessee v. Murphy , The Tennessee Supreme Court excluded the HGN test as evidence in DUI trials.
Music lovers from across the nation will be coming to Manchester , Tennessee for the Bonnaroo Music Festival which kicks off this Thursday.Lynn Edwards of Nashville's Metro Mix wrote an excellent Bonnaroo Survival Guide which includes tips on Bonnaroo. However , Bonnaroo also brings out law enforcement from the Tennessee Highway Patrol to local police.Here's my Bonnaroo criminal survival guide:
Be safe and have a safe trip to Tennessee.
The video in this post is addressing the "exit sequence" component of a DUI or drunk driving investigation.The police officer is looking for evidence of impairment as a driver steps and walks from the car. According to the National Highway Traffic Safety Administration , the police will be looking for the following clues.
How you get out of the car is also great evidence to prove you weren't impaired.
As I was driving to work today , NPR had a report on prison rapes. Over 60,000 sexual assaults are reported each year in America's prisons. You can click on the link to listen to the report.
One of the most basic police techniques is the photo line up.However , the photo line up can be unfair and biased. New York has established a set of guidelines for the use of the photo line up.You can read the guidelineshere..Thanks to The Crime Report for the information. New York has implemented these guidelines in order to avoid false identification in criminal cases.
The Metro Nashville Davidson County Police Department has created a DUI testing report.The video in this segment is a discussion on the observation of the suspect. .One key component of the case is the personal contact between the accused and the police officer. The police officer may be looking for evidence that you are intoxicated. Some of what they are looking for are :
These are just some examples that the police are looking for in their DUI / DWI investigation.
After the police turn on the blue lights to stop you, one clue they look for is your response to emergency equipment. A DUI investigation is usually broken down into three parts based on the National Highway Traffic Safety Administration manual on DUI or DWI detection. One of those steps is the vehicle in motion phase. In a prior post , I discussed the traffic stop.The stopping sequence is the next portion of driving that the police are observing.According to the NHSTA manual , an impaired driver may exhibit additional clues as to impairment after an order to stop is given.These clues or cues may include the following:
The blue lights , siren , or emergency equipment creates conditions for a driver to divert his or her attention to the roadway.An impaired driver may not be able to handle multiple tasks and additional evidence of impairment may appear.
Please watch the video and if you have any questions please feel free to contact me.
A police officer must have probable cause to make a traffic stop in an DUI investigation. In Metro Nashville Davidson County's DUI testing report commonly referred to as a 132 report it lists several reasons for a traffic stop.They are:
The reason for the traffic stop is the first thing an experienced DUI lawyer investigates.
Starting today, I will be posting a series of video blogs on one of the most important pieces of evidence in a Nashville , Tennessee DUI case. The Metro Nashville Davidson County Police Department uses a report called a 132 report in all DUI investigations. Other than a blood or breath test, the 132 report is the most critical document to review in a Nashville DUI case. I have broken down the report into sections for the discussion.
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