Can You Get a fair Trial in a DUI Case
I ran across this video from California DUI lawyer Lawrence Taylor. His video was can you get a fair trial in a DUI case. I thought the video had some great points and is worth sharing here.
Blood Alcohol Issues In Tennessee DUI Cases
Recently , I invited Pennsylvania DUI lawyer Justin McShane to speak at TACDL's DUI seminar that I organize.His presentation was lights out.Justin created a video on explaining some critical issues in blood alcohol testing. For any lawyer or person accused of DUI I would highly recommend you watching the video.It shows some problems that may occur in the forensic crime lab.Justin writes a blog about forensic science.The title is www.thetruthaboutforensicscience.com.
Nude Photos Land Man in Hot Water
A Utah man took some nude pictures of his baby.Some of the photos had him kissing the nude infant.A trip to Walgreen's brought the police back to his home.Mr. Diaz-Palomino was later cleared of the charges but now faces deportation.Child pornography allegations can't be ignored even if it was so innocent. If someone posts a nude photo of a baby on Facebook , look out you might be under investigation.
MSNBC.com quotes New York University law professor Amy Adler, who says the days of photographing your kids running naked through the lawn sprinkler may be over.
“What [parents] might think are normal pictures could be seen the wrong way,” she said. “As a legal matter parents should be extremely cautious. I hate that. I think it is a shame.”
Everyone agrees child pornography is a bad thing , but where do we draw the line in what is against the law and merely taking a picture of your baby playing in the tub.I think my mom took some pictures of me like that as a child. The bottom line be careful with these photos.
What is an Aggravated Vehicular Homicide in Tennessee ?
What is a aggravated vehicular homicide charge in Tennessee ? Most criminal charges have elements or components of what it takes to be convicted. Here is the jury charge of aggravated vehicular homicide ;
T.P.I. -- CRIM. 7.11
AGGRAVATED VEHICULAR HOMICIDE
Members of the Jury, you have found the defendant guilty beyond a reasonable doubt of vehicular homicide as charged in Count _____ of the indictment.
It is now your duty to determine whether the defendant is guilty of aggravated vehicular homicide as charged in Count _____ of the indictment. The law provides for increased punishment for aggravated vehicular homicide.1
Any person who commits the offense of aggravated vehicular homicide is guilty of a crime.
For you to find the defendant guilty of aggravated vehicular homicide, the state must have proven beyond a reasonable doubt the existence of the following essential elements:2
(1)(A) that the defendant has two (2) or more prior convictions for driving
under the influence of an intoxicant, vehicular assault or any
combination of such offenses;
or
(B) that the defendant has one (1) or more prior convictions for the offense
of vehicular homicide;
or
(C)(1) that there was at the time of the offense twenty-hundredths of one
percent (.20%) or more by weight of blood alcohol in the
defendant’s blood;
and
(2) that the defendant has one (1) prior conviction for driving under the
influence of an intoxicant or vehicular assault.
“Prior conviction” means an offense for which the defendant was convicted prior to the commission of the instant vehicular homicide and includes convictions under the laws of any other state, government, or country which, if committed in this state, would have constituted vehicular homicide, vehicular assault or driving under the influence of an intoxicant.3
Now here is the key point.The way the charge is worded the case is bifurcated.In a nutshell, the state must first prove you are guilty of vehicular homicide then proceed to prove the prior aggravating convictions.
New Push To Establish A Juvenile Sex Offender Law
It appears there will be new efforts to pass a sex offender registry for juveniles in the coming session of the Tennessee State Legislature. The reason for the new law is Washington money.Loss of Federal money is at the heart of the juvenile sex offender registry. Last session , Tennessee's version of the juvenile sex offender law did not come up for a vote.Some juvenile judges spoke in opposition to the bill.However , Washington's money often forces state government to act.If Tennessee does not pass the juvenile sex offender statute, Tennessee would stand to lose 10% of the 11.5 million dollar grant from the federal government. The choice is clear do we brand a child forever as a sex offender who might get treatment or do Tennesseans want a million or two from Uncle Sam.Shouldn't Tennesseans pass the law they believe helps the most .My bet is we take the money.
Debra Maggart who is sponsoring the bill states it's not about the money.
"One of the excuses people kept using last year was that we still had time to fix this. Not anymore," said Maggart, who also said she doesn't think the loss of federal money should be the primary reason for passing the law. "What's really important is not the money. The most important reason is that it helps Tennessee be a safe place for children and not a haven for sex offenders."
My one fundamental thought is the Tennessee State Legislature should consider the proof element in all sex crimes in Tennessee.Right now anyone can allege a rape.Sex offenses are brought without any corroborating evidence in many Tennessee counties.It then becomes a credibility contest between the accuser and the accused. The state should require some sort of corroborative evidence to support a conviction.
Rehabilitation , lifetime punishment or adding another level of proof to prevent wrongful convictions are some of the options the state legislature should consider.
How Does A Scram device Work
Yesterday , I felt like an old circuit riding lawyer.First stop was the courthouse in Shelbyville ,Tennessee.Next stop was General Sessions in Gallatin , Tennessee. In the office today , so I thought I would comment about the Scram device. A video on how the scram device works is the featured video on this post. However Pennsylvania DUI lawyer Justin McShane wrote a post on his blog about the Scram device. In a nutshell , the machine is designed to detect alcohol from the skin.Lindsay Lohan is the most famous of the Scram users. Here is a picture of her wearing it in a bikini no less.
Tennessee's new and improved DUI laws go into effect in 2011. Expect to see the use of the Scram device increase in dramatic proportions. I would suggest reading Michigan DUI lawyer Patrick Barone's article on the scram device.Mr. Barone discusses the limitations of the alcohol monitoring device which I intend to follow up on the a future post. The price of a DUI conviction is going up. A great DUI defense may get you out of what Ms. Lohan experienced.
Kenny Britt Update
I wrote this morning on the Kenny Britt bar fight before I walked over to the A.A. Birch Building for DUI court. The courthouse is always a great place to discover what is really going on in Nashville . I might be wrong that the Kenny Britt case is dead in the water. It appears Nashville Metro Police are still actively working the case. I am a little shocked by the delay in making an arrest if there is proof of an assault.Here is one interesting twist to the case , it appears Mr.Britt came to a friend"s aid.It is a defense to a simple assault to come to the aid of a third person. I will discuss that defense in my next post. The big question is will Kenny be arrested.
Kenny Britt Bar Fight
It appears Kenny Britt may avoid any criminal charges from a bar fight that happened on Second Avenue in Nashville a couple of weeks ago.No reports have surfaced from the news media. Lack of comment probably means the case is not going to be prosecuted. In most of these downtown bar fights , someone is going to be arrested on the spot.Since there was a delay in bringing a charge it appears Mr.Britt may skate on this simple assault. The police don't waste a lot of time investigating an alleged bar fight. I do wonder what happened with the security video from the bar. Was there video and if so what did it show ? If there have been no arrests since October , it's pretty safe to bet the over and under that no charges will be filed against Mr.Britt.
What is a Grand Jury ?
What is a grand jury ? A grand jury in Tennessee is made up of a foreperson and 12 members.A Tennessee grand jury's main duty is to inquire into , consider , and act on all criminal cases submitted to it by the district attorney general.Article I Section 14 of the Tennessee Constitution provides that no person shall be put to answer any criminal charge but by presentment , indictment , or impeachment. So , a grand jury must authorize any criminal charges to be tried before a jury.
Here are some random facts about the grand jury process ;
- The proceedings are secret.
- Normally it is not recorded.
- No witnesses for the defense are allowed to attend unless allowed by the district attorney.
- Hearsay is allowed.
From my perspective , allowing hearsay evidence is the most troubling aspect of the process.The grand jury system was designed to act as a safeguard from abuses of the government.Now , a investigator from the district attorney's office can just read a report and the arresting officer does not have to testify. So over the years the power of the grand jury has been watered down by allowing hearsay evidence to be admitted.
The Admissibilty of Breath Tests Evidence in Tennessee DUI Prosecutions
I was reading an article today by Mark Fulks of the Tennessee Attorneys General's Office on his thoughts of the Confrontation Clause and DUI evidence. Mr Fulks makes an argument that DUI evidence such as the breath test printout and the breath test machine calibration certificate does not fall under the Confrontation Clause as set out in Crawford v. Washington and Melendez-Diaz .Crawford identified when evidence was testimonial which triggered a Confrontation Clause analysis.Fulks points out the calibration certificates should be admissible because they are not testimonial in nature.
Respectfully , I disagree.
In State v. Sensing, 843 S.W.2d 412 (Tenn. 1992), the Tennessee Supreme Court set forth
the proper “foundation to be laid for the admission of evidentiary breath tester results.” Id. at 416.
The court held that a testing officer must be able to testify
(1) that the tests were performed in accordance with the standards and operating
procedure promulgated by the forensic services division of the Tennessee Bureau of
Investigation, (2) that he was certified in accordance with those standards, (3) that the
evidentiary breath testing instrument was certified by the forensic services division,
was tested regularly for accuracy and was working properly when the breath test was
performed, (4) that the motorist was observed for the requisite 20 minutes prior to the
test, and during this period, he did not have foreign matter in his mouth, did not
consume any alcoholic beverage, smoke, or regurgitate, (5) . . . . evidence that he
followed the prescribed operational procedure, and (6) be able to identify the printout
record offered in evidence as the result of the test given to the person tested.
Here's the point.Sensing requires the machine be tested for accuracy. The 90 day accuracy checks are not routine maintenance , but are conducted to comply with the holding in Sensing when the evidentiary threshold was lowered to not require expert testimony by police officers in DUI breath test cases.
Right now there is no clear decision , however the U.S. Supreme Court is taking up another Confrontation Clause up this term. Stay tuned.
A Fair Trial and an Independent Judges
Two stories from the news bears commenting on today.One of the guiding principles of our court system is a fair trial , an unbiased judge , and a right to appeal. Those principles were addressed in two separate reports today.
First , a Nashville Circuit Court Judge has ruled in favor of a defendant in a medical malpractice case. The problem is that the judge sits on the board of the defendant. One of the major ethical rules is to avoid any appearance of impropriety.For example , a person on trial for a DUI in Nashville would not want the judge to be a member of Mothers Against Drunk Driving (MADD).
Secondly , three Iowa Supreme Court Judges were removed by voters after they ruled on the constitutionally of same sex marriages.We need an independent judiciary to decide tough cases. The founding fathers recognized that when the U.S. Supreme Court Justices and federal judges were given a lifetime appointment. The question raised in this story is will there be a chilling effect on judges to make the right call when public sentiment is otherwise. For example , a tough stance on crime equals going to jail rather than a shot at probation.
It will be interesting to watch the fall out from the Iowa elections as it deals with issues on the independence of the court.
Medical Defenses in Nashville, Tennessee DUI Cases
One of the first things I normally cover with a client is to ask about certain medical issues.Medical issues are a great defense in drunk driving (DUI) cases.
First , medical conditions effect the standardized field sobriety tests. According to the National Highway Traffic Safety Administration ( NHSTA) 2006 manual people with back leg or inner ear problems have difficulty performing the test.
Secondly , diabetes and acid reflux can cause false readings in the breath test machine.
This video discusses the medical issues in a DUI testing report used by Nashville police officers.
Remember medical issues are important in defending your DUI case.
The Cost of Death
Lawrence Buser of The Memphis Commercial Appeal recently added up the costs of the death penalty trial of Jessie Dotson.Jury selection took place in Nashville,Tn. and the jurors were taken to Memphis for the trial.Mr.Dotson was convicted in the first degree murder of six men , women , and children . The trial is believed to be the most expensive trial in Shelby County history totaling over $ 450,000.00 so far.Years of appeals and related proceedings lay ahead.So what is the cost of the death penalty ?
Shelby County Sheriffs Office's part of the tab was $167,310 which included security , overtime , and expenses of the sequestered jury. Over $250,000.00 was paid for defense counsel , a private investigator , a mitigation expert , and another expert witness.Also , the District Attorney , Judge , and court personnel were employees of the state and not included in the dollar amount.The cost will climb after appeals , post conviction hearings, and numerous trips to the federal courts and maybe even the U.S. Supreme Court.
Does the expense of a death penalty trial make economic sense ? One option is to offer a plea to murder with life without parole in lieu of the death penalty.Knowing you are going to die in prison has to be a powerful punishment.I understand from the family's perspective that a horrific crime deserves big punishment. How do we balance justice with cost effective punishment.Mr. Dotson's bill is close to a half a million and the other mass murderer on death row Paul Dennis Reid bill is at $ 420,000.00 and counting.
Some people might think that we just need to eliminate the lawyers and the appeals.The ultimate penalty deserves the ultimate defense as mandated by the U.S. Constitution.
"People will say there was an eyewitness, why have a trial, but what if the guy'd been found innocent?" said Criminal Court Judge James Beasley Jr. "Do we put a price tag on the freedoms we have in our country? Is there a price tag for the justice system? When do we say that's too much?"
I think Judge Beasley's commentary bears some discussion . However , it's still cheaper than the lawyers charged the City of Nashville for the convention center.
A Tip for a Successful Sentencing Hearing In Tennessee
Why am I showing a image of someone rolling a joint when the title is " Tennessee Sentencing Hearing Tips". Simple. Avoid drug use when facing a criminal charge.Okay , I know drugs are illegal .However , I do realize some individuals use recreational drugs. It creates problems if your charged with a crime.Increasingly , some courts order drug tests at plea or prior to sentencing.A hot drug test spells doom and gloom for my clients.Conversely, it speaks well if one can pass a drug test.Here is a short list from my experiences of Tennessee criminal courts that request a drug test:
- Division III of the Criminal Court of Davidson Tennessee orders a drug test on the defendant on the day of sentencing.I think this is fair use of a drug test.
- The General Sessions Court of Sumner County in Gallatin , Tennessee often orders a drug screen after a plea on simple possession.If you fail , a trip to the jail may be in your future.
- The Criminal Court in Williamson County , Tennessee at Franklin sometimes orders drug tests at plea but prior to a sentencing hearing.
So , my tip for a successful sentencing hearing in Tennessee is don't use any drugs for your case is pending.
