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

Clients always ask what can they do to help their case . It's simple write. Once your arrested start writing notes . Immediately write detailed notes about the case . Don't leave anything out . Witnesses , weather conditions , potential alibi witnesses are just some examples of what to write down . Notes are important to you as well as your criminal defense attorney. Make sure you provide these notes to your attorney along with any other documentation such as restaurant receipts for a drunk driving case . I would suggest also creating a time-line of events .

Why is note taking important to your case ?

 Sometimes , it can be months or years before you go to court . A witnesses who recalls the events is more likely to be a better witness. Why do you think the police make arrest reports and case narratives  ?  You should do the same.

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As I leave the office on a Sunday afternoon preparing for a child abuse trial on Monday. I watched a short video from the San Francisco Public Defenders office. With images alone , it gets right to the point of what beyond reasonable doubt and innocent until proven guilty is all about . It reminds me of those two bedrock principles of our criminal justice system. Thanks to Jamison Koehler for the heads up on the video.

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Arnold Myint of Top Chef  fame has several restaurants here in Nashville. Today , I went to PM in search of Nashville's best cheeseburger. I was not disappointed .

The burger was framed by a great Kaiser bun .It still had a little flour on the top and placed on the grill for a few grill marks but no butter.I am watching my calories..It was the best bun yet.  Size of the burger was unknown . My server didn't know the size , however the burger is cooked to order.Medium was my choice and it was perfect. Choice of different cheeses .My choice was cheddar which wasn't fully melted. A small slice of romaine , sparse red onion , tomato was the condiments . No pickle which is required for a burger.Wasabi mayo make a nice treat.

Here is what made the burger. A super secret glaze sauce is added to the burger during the cooking process.They wouldn't  tell me what was in it. So , I asked for a bowl on the side. A mix of Thai chili sauce , BBQ sauce , and some other stuff is my guess. I couldn't breakdown what was in the sauce. I dunked the burger in the sauce for some extra flavor. Heaven.Steak fries with Kosher salt was the side.

Vibe was a restaurant not the dive bars like Brown's or Twin Kegs which I prefer. Close to Belmont did make it seem like a hip college place.

Five out of five stars. A must to try in Nashville.

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I have a fundamental problem with discovery in Tennessee criminal cases. Discovery is the process in which each side of the lawsuit or criminal case learns what evidence each side has available. In Tennessee civil cases , one can use all types of discovery tools to learn what the other side has to defend or prosecute the case.Criminal defendants are very limited in what they can learn.

Here's an example . I tried   impersonation of a licensed professional charge recently. I called the main witness to speak with her about the case. I was very nice and explained why I wanted to speak with her.She refused.In a civil case , I could have taken her deposition and she would have had to answer my questions. In Tennessee , civil cases you can ask about anything .When your freedom is at stake , a criminal defendant is limited in scope of what they are entitled to receive.

Rule 16 of the Tennessee Rules of Criminal Procedure provides what the Government has to provide:

1. The Defendant's Oral Statement.
2. Defendant's Written or Recorded Statement.
3. The Codefendants Discovery.
4. Defendant's Prior Record.
5. Certain Documents and Objects
6. Reports of Examinations and Tests.

Here's my problem.  Discovery does not apply in General Sessions Court by Tennessee case law. Most  driving under the influence cases are handled in General Sessions court without discovery. Secondly , criminal defense lawyers should at least be able to interview law enforcement officers. Money verses the rights of the criminally accused . When your talking about money , you get more information.

 In the next couple of posts , I will cover documents and tests during discovery.

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Here's a video , I created some time ago.It illustrates the third problem with field sobriety tests. While your looking at the screen shot of the video , you might be thinking to yourself why is  he holding a women's shoe . Trust me . I am not Coach Ryan with a foot fetish. The video shows a great point of a  failed  DUI  investigation.Women today wear crazy heels when they go out. Your shoes can effect the field sobriety tests.

According to VIII-11 of the February , 2006 Edition of The DWI Detection and Standardized Sobriety Testing student Manual., " Individuals wearing heels more than 2 inches should be given the opportunity to remove their shoes.It can be a Catch-22 for the client.Take off the shoes and your walking barefoot on the roadway under varying conditions.Don't take off your shoes and you are doing field sobriety tests on stilts.This is the third problem with field sobriety tests in drunk driving cases in Tennessee.

One last thing, I invite you to place any question you might have in the comment section.I will try to answer it if I can . 

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This week's search for Nashville's best cheeseburger takes us back to East Nashville for a review of Edgefield's Sports Bar and Grill. I have been eating at Edgefield for years .It is home to some members of the Nashville courthouse crowd. One major reason is it is 21 and up so smoke them if you got them. That's one negative in the review.

The Cheeseburger is served on a sesame seed bun.I think it is the first one that I have seen so far.It's grilled with a dab of butter for some nice crispness.Six ounces of fresh beef pattied out daily.One slice of Swiss and one slice of American for a United Nations of cheese.The usual condiments of iceberg lettuce , onion , pickle , tomato.It's served with mayo and mustard.Since i know the place I ordered a little mayo on the side.Sometimes they use a heavy hand with the mustard and mayo.

I had a great server by the name of Dee who gave me the scoop on Edgefield's burger.Once it's pattied , they precook the burger.It's taken off the flattop and placed in a pan with what Dee describes as an Au Jus.You place the order then it's back to the grill to finish it up.My burger still had a little pink.Usually it's medium well.The cheeseburger tastes great , but the cooking process does give me some concern as to freshness and the lack of some beef juices. I need to learn more about this technique.

Vibe is beer joint with great food , smoky , and a great crowd.

I am going to give it three out of four stars.

Next week , I am going to the Belmont area.

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I learned something new today in General Sessions Court for Sumner County in Gallatin today. Sumner County Sheriff's deputies have some new tools at their disposal in prosecuting drunk driving cases . Deputies now have flashlight cameras to use in DUI enforcement.These cameras film most parts of the DUI investigation. The cameras have been in use in other parts of the country for over a year.

As I sat down  to watch the videos of the arrest and the field sobriety tests , I was shocked as to the quality of the video.There were pluses and minuses of the flashlight camera.Plus , it showed in  detail whether someone stepped off line on the walk and turn or other details of the field sobriety test.Minuses , it failed to capture the totality of the police interaction..

It's my understanding Sumner County Sheriff''s Department and the Gallatin , Tennessee Police Department have the cameras at present time in Sumner County.My point is that video helps the accused in most cases.Today , the case was reduced to a lessor charge based on the video.

I am showing my age, but there was a T.V. show I remember called " Candid Camera".There was a line in the show " Smile Your On Candid Camera". Remember that if your stopped for a DUI in Sumner County , Tennessee.

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Big brother is alive and well at the Davidson County Sheriff's office and the U.S.Attorney's office. Nashville criminal defense lawyer Patrick Frogge discovered some of his phone calls to clients were recorded and turned over to the U.S. attorney's office in a sex crimes case. The disclosure prompted a hearing in Federal Court on whether the recorded phone calls should be turned over.Some criminal defense attorneys didn't want to give them back for tactical reasons.Judge Haynes has ordered that no one shall listen to the tapes pending his ruling on the issue. U.S.Attorney Jerry Martin maintains his office does not listen to attorney-client telephone calls. Yeah ,right.

I have posted before on the use of jail house recordings by Davidson County Assistant District Attorneys. However , this case strikes at  the heart of the attorney-client privilege.Again my advice for those charged of a crime and in jail is similar as my father's when I first started at the Nashville courthouse.'Don''t say anything on a jailhouse phone that you wouldn't mind reading in The Tennessean." Hey , I was just a law clerk and he still warned me to keep my mouth shut which sometimes I forget his sage advice.

Here's my last question ? Jailhouse phone calls are recorded for security reasons for the jail or prison.Once they are ruled out for that purpose.Why does the sheriff give out those recordings ?

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Since 1947 Dino's has been serving cold beer to those in East Nashville . They also serve up a mean cheeseburger.That's what took the Nashville Criminal Law Report to Gallatin Road for it's weekly cheeseburger review.

The bun frames the burger.Nothing special about the bun at Dino's.I have discovered that I personally like the bun grilled or toasted for an extra flavor level.The beef is fresh daily with a 90% beef and 10% fat ratio.The burger is one-half pound of beef.Once you bite into the cheeseburger  juices flow onto the plate.Cooked medium to  perfection by owner Rick Wildevoor.Served with the traditional fixings of tomato , pickle, a little onion , ketchup and mustard.I skipped the ketchup since I don't believe a proper cheeseburger should have ketchup.American cheese made it complete but it was not  melted. enough for my taste.Also , I like a whole slice of onion rather than a couple of pieces.That's just me.A draft served in a mason jar made it complete.I had lunch on a snow day so it was okay.

Dino's cheeseburger reminded me of a burger I cook in the backyard. It was thick and juicy but fell apart while you were eating it just like my house.

Vibe was dive bar classic as evidenced by the picture. The first time I went there somebody that went with me told me she always wanted to go there but  wasn't sure about.She even lives in East Nashville. Dino's is a must stop on your Nashville cheeseburger quest.

Four out of five stars.

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I was planning on writing this post yesterday. However, a hearing in Smyrna General Sessions court and Mother Nature with a blast of snow left me on the interstate for hours with most of everybody in Nashville. The second problem with the field sobriety tests is that not everybody is  the same age. As discussed in the first post, the validation studies of the field sobriety tests conducted by Southern California Research Institute (SCRI) on the behalf of the National Highway Traffic Administration (NHSTA) are unreliable.

Steve Rubenzer has written several articles on numerous problems with the field sobriety tests. One more problem is the age factor. As you age, you are not as nimble or athletic as you were in your twenties. If you look at my golf swing, I can't flex now as I did when I was younger. In the 1981 NHSTA study of the validity of the field sobriety tests, you would think they would get a big cross section of people with different ages.  When SCRI and NHSTA did the validation studies in 1981, only 3.1% of the people used in making sure the field sobriety tests were accurate were over 55 years of age.

The best DUI defense starts with a understanding of the basics of field sobriety tests. Further, one needs to know how the field sobriety tests effect their client. Here's my point, according to NHSTA's own studies those over 65 should not be required to take the field sobriety tests. That's the second problem of the field sobriety tests in Tennessee.

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Who made the field sobriety tests the primary means of detecting driver impairment to alcohol in Tennessee DUI cases ? The answer is your government.Beginning in the 1970's research studies were sponsored by the National Highway Traffic Safety Administration (NHSTA). NHSTA contracted with the Southern California Research Institute (SCRI) to determine which roadside field sobriety test were the most accurate.The field sobriety tests were designed to be standardized so the tests would be the same in Nashville,Tennessee or Franklin , Tennessee.

There are limitations on the field sobriety tests.Last Sunday most Americans were watching the Super Bowl . Professional athletes who are in tip top shape and train everyday.Where did they perform these football feats. On a perfectly level playing field.The DWI Detection and Standardized Field Sobriety Testing  2006 Manual  requires the Walk-and-Turn test and the One-Leg Stand test be performed on  a reasonably smooth , level surface. If the "tests" aren't done according to design they provide no information to the court or the jury.Therefore , the field tests should be inadmissible.

Today , I reviewed a case where the field sobriety tests were done outside my office on Second Avenue in Nashville.The slope is tremendous.Based on my personal knowledge , the tests were done almost on a hillside.That test is flawed from the start.

So what does a experienced  DUI lawyer do ? Grab a level.Go to the scene.Fight the test for it's flawed basis. The image in the post depicts the perfect location for the field tests. It's inside.

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One of the best defenses  to avoid a Tennessee drunk driving conviction is to review the traffic stop. Police must have reasonable suspicion that a traffic offense occurred before a car or truck can be stopped for a traffic violation. The National Highway Traffic  Safety Administration ( NHSTA) has created a list of visual detection clues.One clue is weaving.

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Attorney Joshua Brand suggested I try Gabby's for a cheeseburger in my search for Nashville's best cheeseburger.Gabby's is located at 493 Humphreys Street in Nashville,Tn.It brought back great memories because it is in the former Hap Townes site.I could remember the stewed raisins once I entered the doors.On to the burgers.

I walked in and went to counter and ordered the standard cheeseburger.I asked for it the standard way they serve it..First , the bun is made by  Chapiers bakery.You can order it white or whole wheat which is a plus.It came with green leaf lettuce , chopped onion , tomato , pickle..Here is the problem.I didn't order it the way I liked it but they way they would serve it.The toppings were mustard , mayo , and ketchup.The condiments were way too much and took over the burger. I need to learn on my search to either take the burger as is or customize it to my tastes.My current plan may create some confusion in the tasting process due to my  personal likes and dislikes.

The burger was five ounces of grass fed beef. According to the take out menu grass feed beef is 100 calories less than regular hamburger..There is no hormones or antibiotics.i spoke with the gentleman who ran the counter who I think was the owner who  went to great lengths as to why they went with grass fed beef.I couldn't taste a difference between grass fed or regular beef.So I vote for health over fat.

The fries were great.I got a special treat by getting a couple of fried sweet potatoes as a bonus for asking a bunch of questions.Gabby's is a must for a burger and the sweet potato fries.The vibe is an old school hamburger counter from times  gone by.

Solid burger and I enjoyed my visit and the conversation.

Four out of five stars

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Article I Section 9 of the Tennessee Constitution guarantees a person accused of a criminal charge the right to a speedy trial.I recently filed a motion to dismiss in a cold case first degree murder case based upon a denial of his right to a speedy trial.There are four  factors that the criminal courts in Tennessee review in evaluating a speedy trial claim.

1. the length of the delay;
2. the reason for the delay;
3. whether the defendant asserted a claim to the right of a trial;
4. whether the defendant was prejudiced by the delay.

There is no magic amount of time in the length of delay analysis. A delay of one year triggers a more through review by the trial court.

Reason for the delay usually falls into one of these categories;

• delay to obtain a tactical advantage ;
• bureaucratic indifference or neglect ;
• delay necessary to the fair and effective prosecution of the case ;
• delay caused or acquiesced by the defense .

The most critical factor of the four is what prejudice did the defendant suffer.Loss of memory and witnesses are just two elements to present to the court.  Impairment to the defense is sometimes hard to prove.

The denial of a right to a speedy trial is just one right that the U.S. or Tennessee Constitution still affords the citizen accused.

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