I did not realize an iphone had a voice recorder until this summer. If your questioned by police , should you record your conversation with the police. I did a quick check and there does not appear to be any laws in Tennessee  prohibiting a citizen from tape recording their conversations with police officers . However , some states have laws on the books that make it illegal to record or videotape police officers.

Recently , two different courts have ruled that a citizen has a First Amendment right to record their conversations with police officers . I recently tried a case where the video camera was not able to record the arrest and the field sobriety tests. It boiled down to ones word against another. Video or audio recordings are solid evidence. So , feel free to record the conversations of the police officer during a traffic stop or DUI investigations .

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A Nashville , Tn. couple was arrested this week on charges of manufacturing marijuana and possession of marijuana within a 1000 feet of a school zone. Metro Nashville Police discovered a large marijuana growing operation this week. A police officer noticed the smell during a DUI traffic stop. The smell was traced to a house in East Nashville. Police knocked on the door. No answer. Then , the police got a search warrant.  Bingo. Marijuana , grow  lights and all sorts of growing tools were discovered.There are two points that make this case worthy of comment.

First , the issue is whether the smell of marijuana alone justifies the issuance of a search warrant.  The California Court of appeals addressed this very issue this week. The court held ;

"Was the warrantless search justified based on smell alone?" wrote Presiding Justice Arthur Gilbert of the Second District Court of Appeal in Ventura. "Not according to the California Supreme Court. To smell it is not the same as to see it."

It will be interesting to see how this case plays out . From , my reading of The Tennessean article by Andy Humbles and Nicole Young , it appears there was no other evidence to issue the search warrant other than the smell. If there is nothing else , I predict the search warrant may be invalid.

Secondly , does a citizen have to answer the door if police knock ? No. A citizen has no duty to open the door for the police absent a search warrant or arrest warrant. One of the most popular police tactics is the " Knock and Talk ". Police knock on the door. Ask to come in and then they look around or ask for consent to search. Just like a door to door salesman , you do not legally  have to answer or let them in.

One question I have is how far was the house from the DUI stop.

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One way to avoid being stopped in Nashville for either a DUI offense or a drug offense is to remove the window tint on your car.  Metro Nashville Police can stop a car or truck for a  traffic violation. The window tint under Tennessee Code Annotated 55-9-107 provides that it must have a visible light transmittance of less than 35 %. So buy sunglasses and remove the window tint. a violation of Tennessee's window tint law gives the police the right to stop your car.

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Richard A. Oppel Jr. of the New York Times  just published a article  entitled " Sentencing Shift Gives New Leverage to Prosecutors". From my perspective handling criminal cases in Tennessee , Mr Oppel is right on target. Under Tennessee criminal sentencing laws , there are mandatory minimum sentences in certain criminal offenses.Some prosecutors use those mandatory sentences to drive a plea bargain that sometimes a citizen accused has to accept or risk going to prison for years.

Prosecutors have lobbied the State Legislators for tough mandatory sentences on some criminal offenses. Child rape , aggravated sexual battery , aggravated robbery and first and second degree murder cases have mandatory minimum punishment. Those are violent crimes and should have severe punishment if convicted. However , the hammer has been given to the prosecutors in drug cases to force onerous plea bargain agreements. The prosecutors want to take the discretion away from judges in sentencing. Once someone is convicted of a crime , the trial court holds a sentencing hearing to determine the length and manner of the service of the sentence. Mandatory sentences takes that out of the judge's hands.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

The prosecutors and the police now have that power. The drug free school zone act gives the prosecutors that unfair advantage. For example, a person that is arrested for possession to sell cocaine of over .5 grams in a school zone is facing 15-25 years at 100% in prison with no chance of probation. My problem with the drug free school zone act is that it is arbitrary. The drug activity must occur within 1000 feet of a school zone , but there is no nexus requirement that school must be in session. The worst example is driving down I-65 South and one passes several schools. A person has no intent to sell or possess drugs in a school zone but they can be charged for it.

The  plea  bargain is your client is facing 15-25 on a drug free school zone case so the assistant district attorney offers 15 years at 30% to serve. You go to trial you risk spending years in jail. What is worse is the police can wait to make an arrest. Why arrest someone now ? When they can wait until they drive down Charlotte Avenue past a public school. So the police can dictate the charge and the punishment.

Legal scholars like Paul Cassell, a conservative former federal judge and prosecutor who is now a law professor at the University of Utah, describe the power shift as a zero-sum game.

“Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,” Mr. Cassell said. “With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”

With that said , our founding fathers created a separation of powers to balance the power between the executive branch and the judiciary. Now , it appears there is no one to keep big brother in check. Let's keep an eye out in a few years on what it is costing Tennesseans to keep a drug offender in jail.

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What is the booking process if you have been issued a criminal citation in Nashville , Tennessee ?  Metro Nashville Police  in some types of cases like simple possession of drugs , patronizing prostitution , and driving on a revoked driver's license issue a criminal citation in lieu of an arrest warrant . I recently was asked  what is the booking process.

On the criminal citation , you are given a date in which to appear . The booking process starts at 7:00 A.M. and continues until 10:00 a.M. The location is the A.A. Birch Building which is pictured above .  After you enter the building , you go into the booking room where you provide some brief information , a mug shot photograph is taken , and you are fingerprinted . A trip down to Courtroom 1A is next . You sit there until the paperwork is processed . If you don't have an attorney , you sit there until an assistant district attorney calls you to discuss the case .

An attorney can speed up the process , look for any defenses in the case , and possibly  negotiate a plea bargain or set the case for trial if needed .Also , an attorney can continue the court date if you have a conflict with the court date . Most importantly there may be ways to have the case dismissed and later expunged from your criminal record . Representing yourself may result in a criminal conviction that will be on your record for life .

So , that's the basics of the booking process in Nashville.

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Arkansas Governor Mike Beebe declared that he did not plan to grant pardons in the West Memphis Three case unless evidence showed that someone else committed the murders. The West Memphis Three were convicted of three murders in 1993 . The case was based in large part on a suspect confession by one of the co-defendants who had a low IQ. It appears that this confession was false.

Last week , a plea bargain deal was cut . In exchange for a plea to murder , the West Memphis Three got a get out jail card along with 10 years of unsupervised probation . Also , The West Memphis Three enter a Alford Plea or best interest plea which allowed them to maintain their innocence .Under Tennessee criminal law , there are three types of pleas that can be made at the plea bargain process ;

• A guilty plea
• A Nolo Contendere Plea
• An Alford plea or best interest plea.

Rule 11 of the Tennessee Rules of Criminal Procedure governs the plea bargain process. There is a whole lot more involved in the plea bargain and the underlying facts of the case. A deal was cut to avoid years of protracted courtroom battles and to take a man off death row.I will just wait for the movie.

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Mastering the Tennessee Rules of Evidence is one of the most crucial requirements of becoming a successful criminal trial attorney. Hearsay is one of the most difficult rules to grasp.  The definition of hearsay is it is a statement , other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted. Tennessee's hearsay rule is riddled with exceptions.One interesting rule of evidence I am dealing with now is an exception to the hearsay rule.

Conspirators' admissions are usually an exception to the hearsay rule. The reason for the hearsay exception is that each conspirator is bound by the actions and statements made by the other conspirators. For example , one co-defendant states 'me and dude went to go shoot another dude" that statement comes into evidence. The question of the admissibility of the statement is did the statement occur during the course of the conspiracy. It must have occurred during the course of the conspiracy to be admissible.

So the evidence tip of the day to exclude co-defendant statements is to investigate when the statement is made. Statement made during the course of the conspiracy it is admitted.Statement made after the conspiracy ended. Excluded.

Statements of the accused or the co-defendants often come back to haunt the person at trial. Remember " silence is golden , handcuffs are silver". 

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As the week winds down  , I think back to a case from this week. My thought is the total abuse of the drug free school zone law here in Nashville ,Tennessee. Nashville's a great place to live with schools and parks in most places in the county . Only problem is just driving by a school zone with drugs puts you up for an enhanced drug charge . Everybody can agree that drugs are part of society's problematic areas for long while . The problems with drug use both illegal and the increasing abuse of prescription drugs needs to be addressed. However , the Metro Nashville Police in my opinion are looking at any way to charge a drug free school zone case .

The use of the school zone enhancement has a chilling effect on fighting your case . For example , a criminal case I handled this week should have been fought but the penalties are so severe that no one can face their accusers . Possession of more than .5 grams of cocaine in a school zone gets you 15 to 25 years in prison at 100%. Facts were no observations of sale by police only some audio with no concrete evidence of a drug sale.Client stopped later with no drugs and $50.00 of the photocopied buy money. He is facing 15-25 on weak evidence . A plea bargain was offered at 1 year on probation. No choice but to take the plea bargain.

No connection to the school other than 1000 feet . However , the hammer of the drug free school zone law in Tennessee is used to prevent a person seeking justice. Now some people might read this and think if I was innocent no way I take a plea deal. Would you gamble 15-25 years on 12 people ? The hammer will be used next week as well to force someone to take a deal.

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I had my first experience dealing with Tennessee's new bail bond law for those accused of DUI second , DUI third, and felony DUI offenses. The new law may keep those accused of these crimes from being released on bond.In Nashville,Tn., once a person is arrested and can't make bond their case is placed on the review docket .The review docket is usually held in courtroom 3C in the A.A. Birch Building.We filed a motion to set bond.The court granted the bond and released my client with the condition that he have an ignition interlock device installed.

I expect a lot more in the coming weeks on this issue.I am of the opinion this law will be challenged on constitutional grounds.

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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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I am attending a cutting edge seminar tomorrow on Tennessee's breath test machine . Virginia DUI lawyer Michael Tillotson is sponsoring the DUI defense training session. During the seminar , I will be posting updates. You can follow them at www.twittter.com/RobMcKinney I will be posting some articles  here next week.

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  You might be wondering why I have a picture of Electronic Express on West End Avenue in Nashville , Tennessee on a criminal law blog.. Here's why.This parking lot is where a lot of DUI enforcement officers set up radar to catch drunk drivers speeding. A traffic violation is probable cause to stop a car.. As you are driving down West End  after dinner , the police are looking for DUI drivers. West End Avenue in Nashville is one of the DUI hot spots to avoid in Nashville. Metro Nashville Police routinely step up on around Twenty-ninth and West End. Here's my tips on surviving a DUI in Nashville , Tennessee.

1. Always Drink Responsibly.
2. Use Your Cruise Control.
3. Avoid Driving on West End Avenue.

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   Rudy Giuliani's daughter Caroline appeared in a New York courtroom Tuesday.She was charged with shoplifting some cosmetics from a store. Ms Giuliani received a plea under an Adjournment in Contemplation of Dismissal (ACD). Once she performs some public service work likely to be at a sanitation garage ,her criminal case will be dismissed.

In the General Sessions Courts for Nashville Davidson County Tennessee , there are similar procedures to handle some petty crimes.Shoplifting , simple possession of drugs and various other criminal charges can be disposed of like Ms.Giuliani's case. The disposition in Nashville courts is referred to as an under advisement plea. Usually a plea bargain is reached to do public service work or some other type of project , a plea is entered but disposition is reserved if you do what you are supposed to do case dismissed. You fail to do it .Jail and a permanent criminal conviction will be on your record. These types of dispositions are not just for the rich and famous , but are available to the average citizen. Ask your attorney if you are eligible for this type of plea bargain.

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Identifying who committed the crime is one element of proof in most criminal cases. There are several different methods of identification. First , the person knows the accused. Second , the police may use a lineup or show up to identify a defendant, Third , the defendant may be identified in open court by the alleged victim. Recent statistics from the Innocence Project illustrate this problem.

Eyewitness Misidentification

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.

While eyewitness testimony can be persuasive evidence before a judge or jury, 30 years of strong social science research has proven that eyewitness identification is often unreliable. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.

How do Tennessee court's instruct on identification problems at trial ? The following is from the Tennessee Pattern Jury Instructions on identification;

One of the issues in this case is the identification of the defendant as the person who committed the crime. The state has the burden of proving identity beyond a reasonable doubt. Identification testimony is an expression of belief or impression by the witness, and its value may depend upon your consideration of several factors. Some of the factors which you may consider are:

(1) The witness' capacity and opportunity to observe the offender. This includes, among other things, the length of time available for observation, the distance from which the witness observed, the lighting, and whether the person who committed the crime was a prior acquaintance of the witness;

(2) The degree of certainty expressed by the witness regarding the identification and the circumstances under which it was made, including whether it is the product of the witness' own recollection;

(3) The occasions, if any, on which the witness failed to make an identification of the defendant, or made an identification that was inconsistent with the identification at trial; and

(4) The occasions, if any, on which the witness made an identification that was consistent with the identification at trial, and the circumstances surrounding such identifications.

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 California DUI lawyer Lawrence Taylor wrote a post on his DUI Blog on the cost of a DUI conviction.

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Drunk Driving Could Cost $20,000

CNBC News.  Dec. 14  –  Twenty thousand dollars sounds like a lot to pay for a drink at a holiday party, but if that last cocktail puts you over the legal limit, that “one for the road” could easily cost you that or more.

One drink too many puts you at risk for not only an arrest, but also for fees, fines and costs that can run you thousands of dollars. While a DUI or DWI may be a misdemeanor charge in a number of jurisdictions, it’s a matter that most judges and district attorneys take very seriously. The financial toll of a conviction will play out for years to come, and in many states that can add up to $20,000 before everything is over. This includes bail, fines, legal fees, increased auto insurance premiums, loss of work income, court-ordered alcohol education programs and more.

Of course, if you get fired from your job as a result of the arrest, that dollar figure would skyrocket…

The Texas Department of Transportation says a June 2006 survey in that state showed the total costs of a DWI arrest and conviction — for a first time offender with no accident involved — would range from $9,000 to $24,000.

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Here is a video of an execution of a search warrant.  Most search warrants do not go like this, but I thought it is a great example of a search warrant gone wrong.  Thanks to Simple Justice and Radley Balko for this educational video.

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The DUI Unit in Nashville, Tennessee uses a breath alcohol test in most DUI arrests .The question is " Do you have a right to an independent blood alcohol test."  .Tennessee Code Annotated 55-10-4109(e) provides that a person tested for blood alcohol "shall be entitled to have an additional sample of blood or urine procured and the resulting test performed by any medical laboratory  of that person's own choosing and at that person's own expense." So , once you blow.You have a right to an independent blood test. Demand it.

If the police refuse to give you an independent blood test , what happens ? In Tennessee v.  Geselbracht , The Tennessee Court of Criminal Appeals upheld a trial court's dismissal of DUI charges based upon a refusal to allow the defendant his right for an independent blood test.The Court found that the police violate his his reasonable request to obtain evidence in his defense.

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