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

Today starts a new topic for the Nashville Criminal Law Report .Brentwood , Tennessee lawyer John Day wrote a series of posts on " What it takes to be a great trial lawyer". I read Mr. Day's series of posts with a passion.  As I sat in court listening to a sentencing in criminal court here in Nashville , It reminded me of his thoughts. and observations. So here's my thoughts on " What it takes to be a great criminal defense lawyer.

                                              Know The Tennessee Rules of Evidence

As I mentioned earlier , I was watching a sentencing hearing while waiting for my case to be called. The defendant had plead guilty to  aggravated assault and was testifying as to his story of what happened . The Assistant District Attorney was cross examining him trying to impeach his testimony based upon a prior statement.to the police. One warning never talk to the police unless you have a lawyer with you. The method of cross by the state was against the rules. The defense attorney made a timely objection. However,  the court did not make any rulings because the objection was not precise as to reason the cross examination was improper.

The Assistant District Attorney was cross examining the defendant from a police report on what was alleged to have been his statement. No transcript or written statement was used.

One quality of a great criminal defense lawyer is you must know the Tennessee Rules of Evidence backwards and forwards. The second teaching point is always have your client read any report that may have his statement in it before he testifies at any hearing or trial.

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FBI Director Robert Mueller has disclosed to Congress that FBI Special Agents have been cheating on tests. Agents are required to take a test on how to conduct surveillance and open  files and criminal investigations on citizens. The purpose is to make sure the FBI agents know the law to make sure they do their job right. It appears the agents cheated on the test. I guess they don't have an honor code or it implicates the FBI agents may bend the law or their testimony when it benefits the agent.

Asked about an  Associated Press report about the cheating investigation, Mueller said he does not know how widespread the problem was.

"I've got a general idea, but I do not know how many," Mueller testified. "And I am not certain the IG knows how many either. He has pointed out instances orally to me where there may be persons in a particular office where it was widespread and may be attributable to a lack of understanding and confusion about the procedures."

Here's a copy from the Office of the Inspector General on the cheating.  I an agent cheats to pass a test what else are they capable of doing. I am in search of an honest man.

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Several days ago , I read a post by Scott Greenfield  on his blog Simple Justice . The theme of the post is that the courthouse has changed from a place where the average citizen could seek a fair trial to one dominated by the government. For example , Greenfield noted that the presence of policeman from manning the metal detectors to the display of firearms has changed the fabric of the courthouse from one of justice to that of a place of  law enforcement. I read the article and agreed with the conclusions then I had court in Murfreesboro , Tn. which drove the point home.

Domestic violence cases in Rutherford County are handled differently from most places in Tennessee. Here's the deal:

• As the court calls the docket , it refers the alleged victim to a domestic violence coordinator who is not affiliated with the District Attorney's office.
• The alleges victim is interviewed by the domestic violence coordinator who I have been advised may make recommendations to the Assistant District attorney that is handling the case.
• Then the Assistant District Attorney interviews the alleged victim.

The whole point is the process where the court refers the witness to be interviewed. Is the court now a referee of the law or an active participant in the enforcement of the laws.Secondly , guess who funds these domestic violence coordinators in Rutherford County , Tennessee ? The defendants who pay court costs in criminal cases in General Sessions Courts in Rutherford county. I have been advised that a fee is assessed as court costs for all criminal cases except driving offenses to pay for these domestic violence coordinators. So , a MTSU student is convicted of simple possession of marijuana , he or she pays a fee to support this program. Is that court costs assessment fair or constitutional ?

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In the last few months, I have been creating videos on different legal issuses ranging from drunk driving defense to truck accident cases.  I complied a few clips of different aspects on the ins and outs of  defending a Tennessee DUI case.  I am providing these DUI DVD's free as long as the supply lasts. The DVD covers some basic issues in field sobriety tests as well as blood alcohol tests.  If you want our office to mail you your free "DUI First Aid Kit", please post  your address in the comment section of the blog or contact the office at 615-259-9009.

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Minnesota DWI Lawyer Charles Ramsay commented on  my post  " Misconceptions of a DUI Lawyer".  I just read his post on avoiding a jack of all trades lawyer which gave some insight on the issue. The point is while you are searching for an attorney to handle your DUI case , drug case , sex crimes case or any other type of criminal case do you want the jack of all trades lawyer . Is the lawyer's website  advertise  that  the lawyer can handle any case from bankruptcy to divorce . Granted a lawyer can handle  one or two different practice areas with much success . I focus on two practice areas  myself but they are both in the litigation area. Remember the old saying " Jack of all trades master of none".

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Here's the first misconception about hiring a lawyer for your drunk driving case (DUI) .

                            Misconception Number 1 :

Any Lawyer can defend an accused drunk driver.

A DUI defense attorney has become a sub-specialty within the area of criminal defense lawyers. When a prospective client walks into the average law office and asks for help on a drunk driving case, they may never have handled a DUI case.  A lawyer may look at the warrant and think the case is hopeless and encourage the defendant to enter a quick plea of guilty.

DUI  defense has become a specialized field.  A great DUI lawyer is a geek who studies and learns the ins and outs of the defense.  It involves being up to date on the following;

1. Search and Seizure Law.
2. Detailed Knowledge on The Field Sobriety Tests.
3. Knowledge of the internal workings of the breath alcohol Tests and it's problems.
4. Knowing the science of alcohol absorption and alcohols effects on the human body.
5. Being well schooled on blood tests.

In today's legal environment, you need a DUI geek . You can't afford to hire someone who is going to plead you guilty without looking at all your options.  Studying the officers time cards, the maintenance records of the alcohol testing machines, filing pretrial motions to suppress the traffic stop: Do you want a lawyer that does this stuff or a lawyer that will just meet you at the courthouse, take your money and plead you guilty.  Today, I ran into a lawyer who took a case with a .28 breath alcohol test.  The attorney intended to plead them out and commented was that even I couldn't get them off.  The moral of the story is "You never know til you try".

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I just signed up for a new DUI seminar that is being presented by Virginia DUI lawyer Michael Tillotson.  Here's a list of the topics :

1. Introduction to the Intoxilyzer EC / IR II Machine
2. Medical Conditions, DUI and Breath Testing
3. Top Ten Defenses Against EC / IR Breath Testing
4. How to Read Downloadable Data from the EC / IR II
5. Issues of Reliability and Accuracy Using the EC / IR II
6. Source Code and Radio Frequency Issues on the EC / IR II

By the way, Tennessee uses the EC / IR II in all breath alcohol DUI cases in Tennessee .

One question to ask if your are looking for a Nashville DUI lawyer is what does EC / IR mean. Drop me a comment and I will happy to let you know.  Also, another question to ask a prospective DUI attorney is what training you have had in Tennessee's breath alcohol machine.

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I just ran across some great information by Christine Funk. Ms Funk is a criminal defense lawyer in Minnesota. Here is her interview of  M. Fredric Rieders, Ph.D. Dr. Rieders is a forensic toxicologist and CEO at NMS Labs.  http://www.nmslab.com/  In this interview, Dr. Rieders provides basic information about what a forensic toxicologist does and how the work can assist law enforcement in assessing the significance of toxicological findings

Here is the link to Ms Funk's podcast on crime lab issues.

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Lawyers usually get paid by three different ways. Criminal defense attorneys get paid in two ways because it is unethical to charge a contingency fee or a results oriented fee in criminal cases. Most criminal defense attorneys charge by the hour or a flat fee. A flat fee is one set price for the entire case. In some circumstances the fee can be divided between the different stages of the case. For example , A lawyer may break the flat fee into segments of representation in General Sessions Court and Circuit Court. Here's an article on the difference between a retainer and a flat fee.

One tip for the consumer . Always have the fee agreement in writing.

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As I was leaving the Criminal Court in Nashville last Friday, I noticed a program being presented by the Nashville Coalition Against Domestic Violence.  Curious, I went inside, made a donation, and sat down.  The topic was "Children and Domestic Violence".  Lani Ramos presented on the "Effects of Trauma on Children" . Here's an excerpt from her presentation on the impact from birth to toddler.

The National Child Traumatic Stress Network has defined domestic violence as follows:

The term domestic violence is commonly defined as a behavior, or pattern of behaviors, that occurs between intimate partners with the aim of one partner exerting control over the other. Domestic violence may include psychological threats, emotional abuse, sexual abuse, and/or physical violence. This clinical definition is broader than the legal definition, which may be restricted to acts of physical harm. In the past twenty-five years, public awareness of the issue of domestic violence has grown tremendously. As the scope of the problem has become understood, domestic violence is now acknowledged as a significant legal and public health issue, not only a private family problem. There are laws in every state that make domestic violence illegal.

Studies by the National Child Traumatic Stress Network note : exposure to domestic  violence during the first 33 months of life puts a child in serious risk of cognitive and developmental impairments that may last a lifetime.  A child develops the ability to think, feel, and relate to others.  So, the template for development may be skewed.

Bottom line is that domestic violence effects all those around you.

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Here's an update on drug interdiction tactics.  Simple Justice reported on a new book written by Andrew Hawkes on how a police officer can be a successful drug interdiction officer.  Mr. Hawkes has available for sale a book titled  " Secrets of Successful Highway Interdiction".  Here is a list of the chapters from his book :

"Secrets of Successful Highway Interdiction"

TABLE OF CONTENTS

Chapter 1   - Instinct and Indicators
Chapter 2   - Playing the Percentages in Your Favor
Chapter 3   - Probable Cause vs. Reasonable Suspicion
Chapter 4   - The Contact and Interview 
Chapter 5   - The Investigation
Chapter 6   - Vehicle Search Techniques & Hidden Compartments

Chapter 7 -   Use of K-9

Chapter 8   - Arrest & Post Investigation

Chapter 9   - Report Articulation
Chapter 10  - Fourth Amendment & Racial Profiling
Bonus Chapter - Courtroom Demeanor

A few of his tips are:  putting the dope on the trunk of the car to let the video capture the image of the drugs, turning off the radar equipment, and questioning the passengers to see if everybody knows everyone's names.

If you want more information on drug interdiction cases in Tennessee, I created a short video on the issue.

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The New Jersey Supreme Court has just issued an important ruling on drunk driving cases (DUI). The court held that the police must advise the defendant of the ramifications of the breath test in their native language.  So, if the police arrest a Hispanic defendant, they must give the instructions in Spanish.  Under Tennessee's implied consent law, the police must give a warning if you refuse to consent to a breath or blood alcohol test.  Here's a video  from Fox News on the subject.  Thanks to Tom Nelson for the heads up.

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 After leaving the Tennessee Supreme Court Building today , I tried  Suzy Wong's House of Yum for the first time. I ordered off the lunch menu which was reasonably priced with Suzy's Combo Box priced at  9 bucks. It included a spring roll , rice or lo mein , a choice of appetizers and an entree. First , I started with Asian Wonton Nachos Deluxe. it was an  Asian fusion nachos with edamame BBQ pork and several other treats. Tasty. The combo box was served in a cool plate which was broken up in segments for the portions. I had the spring roll , lo mein , pot stickers and peanut sauce chicken panang. Everything was great except the lo mein which tasted dry and maybe was leftover.

I enjoyed the meal . A lot of hipsters were there eating so the place had a great vibe. I know the restaurant has been on the scene for a awhile but it's a great lunch place as well. 

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In the July 2, 2010 Trial Tips Newsletter published by Elliott Wilcox, Mr. Wilcox discusses the importance of going to the crime scene.  From DUI cases to First Degree Murder cases, going to the scene gives you a real feel for the case.  Here are a few takeaways from the article;

1. The attorney will give better opening statements.  You can see the scene in your mind.  It lets you bring the scene to life.
2. The attorney will be able to give more detail during direct examination.
3. The cross examination will be more detailed.

Here is a perfect example of the benefits of going to the crime scene for the criminal defense attorney and the client.  I went to the scene of a DUI case here in Nashville.  The grade of the pavement where the field sobriety tests were performed were on a 20 degree slope.  The police officer was trained to administer these tests on a level surface.  According to the National Highway Traffic and Safety Administration the sobriety tests can't be reliable in these circumstances.  Result- The DUI charge was reduced.

For those of who are accused of a DUI in Nashville ,Tn. you will get a ton of letters offering to represent you.  At the client interview, if they do one, one question you should ask is do you go to the scene of the crime.

One last thing, I encourage all criminal defense attorneys to sign up for the free trial tips newsletter.  I have been reading them for over a year and I pick up something in every issue.

One word of warning. My law clerk was shot while working at the Davidson County Public Defender's Office. Her advice is to take someone with you in certain parts of town .

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  This year marks the Fiftieth Anniversary of " To Kill A Mockingbird" by Harper Lee.National Public Radio did a great  interview recently. I just bought the Fiftieth Anniversary edition and plan to start reading it this weekend.

I am interested in what is your favorite scene or quote from the book. Please post your response in the comment section if you wish.

I wish you peace this weekend.

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According to the Tennessee Wildlife resource agency , TWRA boating officers made 28 boating under the influence arrests during the period with almost one third (nine) coming from Old Hickory Lake. Kentucky Lake was a distant second with three arrests, with Watts Bar, Boone, Ft. Loudoun, and Watauga lakes all having two arrests each.

One key fact you need to know , refusal of a breath or blood alcohol test only effects your boating license not your Tennessee driver's license. You can refuse a  breath or blood alcohol test in a boating under the influence case.

Reminder, please obey the no wake zones around the marina's.There might be someone watching. Hanging around Percy Priest's Lake Elm Hill  Marina  at the end of the day is like Nashville's DUI officers on West End Avenue.

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Cyber crime continues to be a huge issue issue in criminal defense work. I ran across this link to the manual on computer searches , " Searching and Seizure of Computers and Obtaining Electronic Evidence." The manual can be found here.

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The Indystar reported about some potential problems in the bid process for the new breath test machines.It appears there may be some irregularities in the bid process. Supposedly , one of the competing companies only had one day to submit a bid proposal for a breath test machine.

Ryser, vice president of Draeger Safety Diagnostics, had been to Indianapolis three times to demonstrate his breath-alcohol testing product. But with just one day to bid, he recalled telling his colleagues, "Something is not good -- and not right."

Intoximeters of St Louis , Mo. won the bid. Intoximeters will now provide the breath alcohol machines state wide in Indiana. Take a wild guess who sells breath test machines to the State of Tennessee ?

Here's one other interesting tidbit. it appears the breath test machines diminish over time.Most Tennessee breath test machines have been in the field for years. Read this quote from the folks at Intoximeters.

There is another concern: The machines' effectiveness can dwindle when they're not being used.

Said Rankine Forrester, CEO of Intoximeters: "To say time has no effect would be disingenuous."

I guess the breath test machines aren't infallible according to Mr. Forrester.

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 On this holiday weekend , the Tennessee Highway Patrol will be out in force to arrest those that are suspected of drunk driving. Here is a link to the Tennessee Highway Patrol announcement of times and locations of DUI checkpoints or roadblocks. In the Nashville district , the Highway Patrol will be conducting roadblocks in Davidson , Rutherford , Dickson , Cheatham and Sumner Counties.

You might be thinking why am I posting the location and times of the DUI roadblocks. It is required under Tennessee laws , if they aren't posted and published in local newspapers the roadblock may constitute a illegal traffic stop.

Remember:

1. Please drink responsibly.
2. Use a designated driver.
3. Take a cab.

Have a happy and safe Fourth of July.

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   The U.S. Coast Guard and the Tennessee Wildlife Resource Agency arrested 27 people for boating under the influence across the state of Tennessee last weekend during Operation Dry Water campaign.  The Tennessee Wildlife Resource Agency will be out in force this Fourth of July weekend.  Most of the officers will conduct safety checks and then look for signs of intoxication.  Here are a few safety tips for this weekend:

1. Make sure you have enough life jackets for everyone on board.
2. Make sure you have a fire extinguisher
3. Finally, drink responsibility.

Have a happy and safe Fourth of July.

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On January 1 , 2011 , new DUI laws will go into effect in Tennessee that mandate the ignition interlock devices. These devices may be required to be installed in cars of those convicted of DUI. Here's a short video of a lady that had her child blow into the interlock device.The interlock device is like a breath test machine , but you can't start your car until you blow into the machine. Here's the story on some of the potential issues with the device.

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   Tennessee's new law on armed robbery, or as it is defined in Tennessee, aggravated robbery goes into effect today.  The only change in the law is the punishment.  A conviction of aggravated robbery carries a range of imprisonment of 8 - 12 years as a standard range I offender.  A person must serve at least 70% of the sentence before the defendant is eligible for parole.

NASHVILLE — Legislation that requires people convicted of armed robbery to serve most of their sentences in prison is among a number of measures that will become law July 1.

The measure would increase the minimum time served for aggravated robbery with a weapon from 30 percent of the sentence to 70 percent.

Supporters have said the change would mean offenders would serve at least six years, up from the current minimum of about 2½ years. The law would pay for the longer prison time by transferring sentences for first-time convictions for 19 nonviolent felonies to community corrections programs.

The measure was supported by the state’s police chiefs and by prosecutors.

House Minority Leader Gary Odom, a Nashville Democrat and sponsor of the measure, said the “law is smart on crime.”

“It makes certain that our limited number of jail cells will be available to house our most violent criminals,” he said. “It will save lives because it more than doubles the minimum sentence for armed robbery.”

This is an excerpt from the Times News article on Tennessee's new laws.

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