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

How do you get out of a federal prison after being sentenced to life for participating in 11 murders ? You snitch. Salvatore Vitale was convicted in 2003 of racketeering , murder in aid of racketeering , and admitted to being involved in over 11 murders. Yesterday , a New York federal judge released him from prison and was given a time served sentence. How did he escape a life sentence ?

Mr Vitale testified against his former cronies in the Bonnanno crime family. Mr. Vitale was the key person who brought down several of the members of the crime organization over a series of trials.Vitale told prosecutors of arson , burglary, hijacking, money laundering , and a host of other crimes since his incarceration. In exchange , prosecutors filed a motion in federal court to reward him for his help.Mr. Vitale took advantage of a rule in the Federal Sentencing Guidelines that allows a departure in sentencing. Under the Federal Sentencing Guidelines , the government can file a 5K.1 motion for a departure from his sentence for helping criminal prosecutions. Mr. Vitale took advantage of that get out of jail free card by testifying in six trials over the years.

The government asked the court to release a confessed murderer which the court granted the motion.Mr.Vitale will resume life in the free world soon.

Here is what the law is on a 5k departure;

CHAPTER 5 - PART K - DEPARTURES

1.      SUBSTANTIAL ASSISTANCE TO AUTHORITIES

§5K1.1.      Substantial Assistance to Authorities (Policy Statement)

Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.

                   (a)       The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:

                               (1)       the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;

                               (2)       the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;

                               (3)       the nature and extent of the defendant’s assistance;

                               (4)       any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;

                               (5)       the timeliness of the defendant’s assistance.

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I have been writing The Nashville Criminal Law report for ten months. In April of this year the Nashville Criminal Law Report was the blog of the week by Techno lawyer.This month the Nashville Criminal Law Report was named the blog of the day by Tom Mighell of Inter Alia.

When I started writing , I just thought my observations would just go to cyberspace. I would like to thank Tom for his recognition.

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In Tennessee , it is unlawful to violate an order of protection issued by a court. A violation of  an order of protection is governed under Tennessee Code Annotated 39-13-114.A violation of this section is a Class A misdemeanor. The legal twist with this law is it requires it to be served consecutively to to the sentence for any other offense that is based upon the same factual allegation.

The teaching points are ;

• Contest the order of protection.
• Obey the order if the court grants it.

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One of the basic tools in DUI cases in Nashville , Franklin , And Gallatin are the Standardized Field Sobriety Tests. What is the definition ?

Standardized Field Sobriety Tests are a battery of three tests , Horizontal Gaze Nystagmus ,Walk and Turn , and One Leg Stand , administered and evaluated in a standardized manner to obtain validated indicators of impairment based research by the National Highway Traffic  and safety Administration. (NHSTA).

By the way , the photo above is not how you do it correctly. This guy is going to jail.

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The Tennessean ran a story recently on drugged driving in Tennessee.Here are some take away facts from the story;

• The Tennessee District Attorneys Conference will ask state lawmakers to strengthen DUI laws to make it easier to convict drugged drivers.
• Prescription drugs have grown to the second most abused drug in the country after marijuana according to the 2008 National Survey on Drug Use and Health.
• A 2007 study by the National Highway Safety Administration (NHSTA) reports that 3.9 % of weekend drivers tested positive for medications such as Loratab,Hydrocodone,Soma,Xanax,and Valium.
• One proposal being pushed is allowing officers to take a check swab drug test at roadside.
• Secondly , there may be an effort to take away the right of citizens to refuse a blood or breath test.

Also , the article states the need for more drug recognition experts. However , it appears that science is not been studied in depth.The same folks that did the NHSTA field sobriety studies also studied Drug Recognition Expert  (DRE)  procedures also performed a study on DRE . It appears that DRE is not the magic bullet to detect the presence of drugs .

More troubling is the move in to lawmaking by the Tennessee District Attorneys Conference. It appears they will be actively lobbying the Tennessee State legislature this coming session. It appears they have moved their focus to make convictions easier.It appears it is another attack on a citizens right not to be compelled to give evidence against one selves and a move for a zero tolerance of alcohol and drugs on the road. Nashville criminal lawyer David Brandon commented  that these proposed laws may encourage police officers to abuse their powers against drivers using their medications legitimately.

Who's at the root at the problem. Doctors that over prescribe and pain management clinics that write a prescription to anyone with no consequences from the law.

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The Tennessee Court of Criminal Appeals dismissed a theft case where the amount stolen was over $10,000. Mr.Sisk was originally convicted of aggravated burglary and theft of property and based upon his prior record received 27 years in prison.The evidence at trial consisted only of a cigarette butt that was inside the house. One problem for the defense was the cigarette butt had Mr.Sisk's DNA evidence. No other evidence of a burglary or theft were present. No stolen goods were on his person No fingerprints or eyewitness identification was presented.

The Court of Criminal Appeals found the evidence was insufficient and dismissed the case.The Court found the mere presence of of a single cigarette partially smoked by the defendant is neither sufficient to weave inescapable web of guilt around Mr.Sisk to exclude every other reasonable theory.

The point here is that sufficiency of the evidence argument  seldom work at the appellate level. Secondly , DNA won't get a conviction every time.

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NPR featured a story on Betty Ann Waters  . Ms. Water's  brother was wrongfully convicted of a murder he didn't commit. DNA evidence proved he did not do it 18 years later. In an effort to exonerate her brother , Ms. Waters goes to law school , gets her degree and later frees her brother. I hope to get to see the movie soon. It's a great story of a sister fighting against all odds to prove her brother innocent. It is also another example of the rush to judgment to convict citizens with the slimmest of evidence.

The movie " Conviction" is based upon here story. Read the review here.

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In today's Nashville Tennessean , Nate Rau and Michael Case reported that legal fees for the Nashville Convention Center have surpassed $1.1 million. Some firms have charged between $250.00 and $600.00 per hour. Here is my suggestion to solve this problem. Hire criminal defense attorneys to do the work.Here's why.

1. Court appointed criminal defense lawyers get paid by the State of Tennessee $40 to $50 per hour to defend citizens lives and freedom.It is a bargain rather than paying someone $600.00 per hour.
2. Criminal Defense Lawyers are a scrappy bunch.

Miller and Martin made almost $900,000 in fees. Metro also First Tennessee lawyer's $60,000.

The point is it's high time to reevaluate the money paid to attorneys who are appointed to represent indigent criminal defendants. TACDL has filed a petition before the Tennessee Supreme Court to increase the fees. Tennessee criminal defense lawyers who are appointed to a case get paid squat with a cap on the total amount of fees.These high priced lawyers wouldn't take off their silk stockings for $40.00 per hour. For now maybe Metro Nashville should hire criminal defense lawyers to do the job or use Metro Legal.

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 Tennessee Driving Under The Influence (DUI)  cases does not have a lesser included offense or lesser charge under Tennessee criminal law.Technically , one is either found guilty or innocent at trial. However , some jurisdictions may offer plea bargains to other offenses rather than a DUI.  DUI cases in Murfreesboro , Tn. , La Vergne , Tn. , Smyrna , Tn. , Rutherford County and Cannon County are handled by the District Attorney's office for the 16th  Judicial District Those assistant district attorneys  sometimes offer a plea bargain of DUI cases to reckless endangerment.

What is reckless endangerment ? Here's the legal definition ;

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    Hiring a Nashville ,Tn. DUI lawyer can be tough. After you get out of jail , your mailbox has more letters from lawyers than you get birthday cards.Some of these lawyers take your money , meet you at the courthouse , and take whatever the assistant district attorney is offering.How do you decide what drunk driving lawyer is right for you ?

Here's a list of should ask questions (SAQ) on Nashville DUI cases that involve a breath alcohol test ;

1. How does the breath alcohol machine work ?
2. Have you ever filed a motion to suppress the results of a breath alcohol test ?
3. Any success on suppressing a breath test result ?
4. Do you have any specialized training on the breath alcohol machine used in Tennessee ?
5. Where and how much ?
6. Do I have any medical defenses to the breath test result ?
7. How do you plan to deal with the breath test result ?

So ask these questions when meeting with a DUI lawyer.

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A Gallatin , Tennessee man was released from the Sumner County jail based upon DNA evidence.Chris Cannon of Nashville's News Channel 5 reported that District Attorney Ray Whitley nolled the murder charge against. Joshua Singletary was accused of murdering Lydia Gutierrez.However ,it appears that Mr.Singletary remains a suspect.

This case is but another example that DNA evidence is becoming the gold standard in criminal cases.

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I got a call today about a DUI case in Maury County Tennessee. I take tough DUI cases in most Tennessee counties.However , the question was did I know everybody like the clerk , the assistant district attorney , or the court personnel.Since  I don't have cases there on a routine basis , the answer was no.So , do you need to hire a good ole boy to avoid a DUI conviction ?

DUI defense is getting tougher each year in Tennessee.Just look at the new four laws that will be going into effect in 2011 . The good ole boy defense is my client is a good guy or gal. Never been in trouble and needs a break. Everyone of my clients is a good person , but how does that convince an assistant district attorney to reduce a  DUI charge. It doesn't. Most jurisdictions in Tennessee are cracking the whip on DUI prosecutions with some having a no reduction policy Like Dickson County and Cheatham county.

You defend the cases by knowing the  search and seizure law , the science of  blood or breath alcohol testing , the workings of field sobriety tests and an aggressive motion practice. if it's a blood test ask the good ole boy about head space gas chromatography testing.

Gone are the days of 'My client is a great guy " . That defense was gone when Andy left Mayberry.

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Another medical defense to Nashville DUI breath test cases is GERD .GERD is short for Gastroesophogeal reflux disease. It is also known as acid reflux .GERD is caused by a problem with the sphincter muscle between esophagus and the stomach.The person experiences acid refluxing into the esophagus along with whatever is in the stomach like alcohol.Once heartburn occurs , the reflux can get in the mouth which can be detected by the breath test machine.If there is alcohol in the stomach , it can help to cause a false breath alcohol reading.

The bottom line is a complete investigation should include a medical questionnaire on medical issues that will impact your Nashville DUI case.

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A  trial in the Criminal Courts of Nashville Davidson County had an interesting outcome Monday. Four individuals were on trial for aggravated kidnapping as well as some other charges. During jury selection , it became apparent to defense counsel that there might not be enough jurors left to finish  the jury selection process . .The defense attorneys excused an entire round of 12 jurors. The court was left with no alternative but to reset the case due to the fact there was not enough jurors to finish the process.

You might ask yourself why would the lawyers bring the case to a halt. First , the move appears to be tactical. It was my understanding that there were no plea bargain offers extended. So , why not delay the trial. Delay is the oldest defense . Sometimes things happen with a case over time. Both sides of the case are given 8 peremptory challenges that can be used to strike jurors for any reason.The purpose of the challenges is to let each side pick a jury that will be fair and unbiased.If there aren't enough jurors , the case stops and your client can't be convicted.

What happens next in this case ? Well does the right to a speedy trial now at issue? Can the bond be revisited ? Has double jeopardy attached ? As to the double jeopardy argument probably not since the jurors were not sworn in yet.

The case was reset for discussion.  Only time will tell if it was the right call.

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I recently attended a seminar on the breath alcohol test machine used in Nashville DUI cases.Tennessee uses the EC/IR II breath test machine manufactured by Intoximeters. The Tennessee breath test machine uses fuel cell technology to detect alcohol.Fuel cells are nonspecific and it is only a presumption that the alcohol measured is ethanol.

The machine will read Ketones as ethanol and give a false reading. Ketones are toxic and the body eliminates them by  breath or urine.

What are sources of Ketosis ?

1. Diabetes
2. Euglycemic Ketosis
3. Starvation
4. High protein Diets

Those that have been diagnosed as diabetics may have a defense to breath test results in Nashville drunk driving cases.

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