In State of Tennessee v Mimi Barrett , The Court of Criminal Appeals ruled on Ms .Barrett’s appeal of her sentence. The trial court denied her request to serve her sentence on community corrections. Community corrections is a form of alternative sentencing that avoids prison time. Community corrections is a more restrictive than regular probation. On appeal, the state contended that prior case law required Ms. Barrett to serve her sentence due to the wording contained in the Drug Free School Zone Act. Many different panels of the Court of Criminal Appeals have held that a defendant convicted of violating the  drug free school zone case commonly referred to as DFSZ must serve the sentence.

Here is the takeaways.

  1.  Plead guilty to a drug free school zone charge. You go to prison.
  2. Alternative sentencing is not an option.
  3. If you are charged with a drug free school zone charge, you must try to enter a plea bargain  without the drug free school zone enhancement.

Here is a closing comment. Years ago, I was discussing the drug free school law with a prosecutor who lobbied for it’s passage. Some Tennessee District Attorneys wanted to take the trial court’s discretion away in sentencing. The Tennessee District Attorney General’s Conference accomplished their goals.  Under T.C.A. 39-17-432, the intent of the statute was to create drug free school zones for the purpose of providing vulnerable persons an environment in which they can learn.  This law has lead to abuse over the years. Police waiting until someone drives through a school zone or luring someone into a school zone. In Nashville, you drive I-65 north and you pass several school zones without the intention of ever going to school property. It is time the Tennessee Legislature reexamines the Drug Free School Zone punishment. The intent of the law was in the spirit of protecting students. Yet, It was used as a hammer.

Charged with a drug free school zone charge, contact a attorney fast.

Right now, I have a very active practice defending nurses, doctors, dentists and other health care professionals before the various Tennessee boards that regulate their license. It was a very different path that I took in defending health care professionals. I was thinking recently on how it all started.

Most lawyers really don’t know what area of practice they want to focus on when they start out. I started at a small firm and did what they told me. Mostly, it was criminal law, personal injury law, family law, and some other litigation type cases. After a couple of years, I started my own practice and focused on defending folks charged with a criminal charges. One day , I represented a dental hygienist in a felony drug charge here in Nashville,TN. We were successful  in defending the charges and avoiding prison but I was ignorant of the collateral consequences of a criminal conviction. The assistant district was trying to put her in prison so I was worried about that little problem. Now, I know I am keenly aware that what we do in the criminal case impacts their professional license. When defending a health care professional on criminal charges you must always be aware of the ramifications the criminal charge has on a person’s nursing or other professional license.

So, I got the call to help. I had never done anything like that. I told her to call the Nashville Bar Association referral number. No luck. She called me crying. Ethically, a lawyer can take a case if the lawyer will get up to speed on the subject matter. So I read the administrative procedures act and the Board of Dentistry rules. I accepted her case.

At the hearing the attorney for the board wanted to revoke her license.  After her testimony, the board decided to place her license on probation as long as she followed the terms of her probation. I was able to save her license so she could work and earn a living.

Now, defending professional licenses is a huge part of my practice. I have defended cases before the medical examiners , board of law examiners, massage licensing examiners, chiropractic board, board of nursing, board of physicians  assistants, emergency medical board and the board of dentistry. If you get a call from a health related board to give an interview, give our office a call. Don’t speak to any one from the Tennessee Board of Health without talking with a lawyer. You have a right to consult with an attorney and have the right to have the attorney at the interview. Now , I have years of experience in working with the health boards from summary suspensions , settlement agreements, and contested trials. Our office has the experience that makes a difference. It all started with that one case.

First, I must give credit for The Marshall Project. The Marshall Project is deeply engaged in criminal justice reform.  Dr. Brie Williams and Dr. Leah Rorvig wrote a great article tiled ” COVID-19: A Survival Guide for Incarcerated People” that appeared in the Marshall Project. If your interested in criminal justice reform, you should follow them on Twitter at @MarshallProj. Here are the good doctors advice on avoiding COVID-19 while in custody. One thing you need to know. jails are not equipped to deal with a pandemic. Jails are designed and maintained  to keep people in jail.

  1. Wash you hands. If you pass a hand sanitizer walking to chow or anywhere else, use it. Try to wash your hands every time you leave and enter your cell.
  2. Wash your hands every time you use the toilet. Try to use some toilet paper when using the toilet handle. If you can , wash the seat with soap and water.
  3. Ask for a mask. You might not get one but ask. Make one for your cell. I doubt anyone is going to let you walk around with a mask.
  4. Using the phone requires you to wash your hands before and after using the phone. Use something to cover the phone that is approved by the facility.

You can read their full article at www.TheMarshallProject.org Some of their advice will not work in some of the county jails and prisons in Tennessee. Here is the key takeaway.The virus stays alive on plastic or metal for up to 72 hours and on cardboard for 24 hours. Wash your hands every chance you get.  Please share this information to loved ones the next time you call, text or write.

 

During the cornavirus, people are stuck at home and surfing the internet. Our office has had several inquiries from our website asking this question. Can I have my Tennessee DUI conviction expunged from my record ? The quick answer is no.  A Tennessee DUI conviction can never be expunged currently. Only DUI cases that were dismissed or you were found not guilty can be expunged. There is a silver lining though. DUI charges that were reduced to a reckless driving or reckless endangerment may be eligible for expungement.

Under Tennessee Code Annotated section 40-32-101(G), Tennessee law provides a mechanism for expungement . The statue lists criminal offenses which may be eligible for expungement. There are a few requirements.

  1. You must not have been convicted of any other crimes.
  2. Five years must have elapsed since the completion of the sentence imposed.
  3. The person met all his requirements of the sentence imposed. Such as the fines court costs, and fees must be paid. Conditions of probation must be satisfied

If your interested in clearing you record in Nashville, Tn. , Visit our website at www.RobMcKinneylaw.com and leave a message. Our office will  research your case and determine if we can help. Our law firm will also handle expungements in other Middle Tennessee counties.

The Nashville Tennessean reported yesterday  that Metro Nashville Police Department will not be getting funding for body cams. This news is shocking. Why ?  Metro Nashville Police Department has for years resisted a department wide implementation of body cams. Police s have for years hid behind the cost of the body cams as the reason why Nashville can’t equip it’s police officers with body cams. Yet, several police departments in middle Tennessee have body cams. The county with the least resources Cheatham County has body cams for all the deputies of the sheriff’s department. I commend Cheatham County Sheriff Mike Breedlove for having a department wide body cam program. You can even go to the counter and get a copy before  the court date in General Sessions Court. In Nashville , Metro Nashville Police Department Blocks all efforts to use body cams. The question I want to ask why do we only have dash cam video equipment in DUI enforcement patrol cars.

Yesterday, I posted on why the police have an unfair advantage in DUI cases. Now what advantage do police have without body cams. Let’s look at just domestic violence cases. Normally the police try to determine who the initial  aggressor is in all domestic violence cases. Witness’s are separated and they are interviewed. The interviews of the parties are not recorded. Police officers then use their memory when writing the police report or the arrest report. At a hearing they then review their typed notes or warrant instead of looking at video footage of the interviews. This is just one example of why the lack of body cams impacts the case. It could hurt case or help your case. One unfair advantage police have is they record  citizen interactions when they want to record.  Detectives in sex crimes unit will always be wearing a hidden microphone and tape your statements.  The goal is to tape record a confession.

What can be done ? Citizens should insist on using their smart phones to record all interviews. My guess is the police will not allow you to record the interview at the scene. What does that mean to your criminal case ? It is something a lawyer can use to great advantage. Citizens called to jury duty decides one’s guilt or innocence. Should jurors require video for proof beyond reasonable doubt  ?  I don’t know the answer to that question but I may find out.  If you live in Nashville , call you metro Nashville Councilman, Find out if they support body cams and if they want to implement the body cam program in phases.

My takeaway from years of debating police body cams in Nashville, Tn. is police administrators  do not want the police to wear body cams. Now ask the same folks why do Metro police have cameras all over downtown watching citizens but police actions are not recorded.

The police have an unfair advantage in prosecuting most Tennessee DUI cases. The main reason is the police control the narrative during the investigation. A citizen does not question the police during the DUI investigation. Here are just some examples.

  1. The police control the information in the arrest warrant, the search warrant, and the DUI arrest report. Very few times does a police officer include mitigating facts in their arrest reports. Metro Nashville, Tn. police officers are required to file out a DUI arrest report commonly referred to as a 132 report. Tennessee Highway Patrol officers complete a DUI report. Many law enforcement officers in Middle Tennessee are not required to complete any reports.
  2. Police officers have more practice operating in front of the camera. Like a Hollywood movie director, the police control the location of the interview, the lighting, location of the accused and everything about the video. The accused does not control anything.
  3. Police or their supervisors control whether their is even video available. Here is just one example. Metro Nashville Police Department does not equip it’s patrol officers with dash cams or body cams. Now, The Metro Nashville DUI officers are equipped with dash cams. The police can control the capturing of the video footage. Once the blue lights are turned on, the video recaptures so many seconds of the vehicle in motion phase,  One thing that is odd is the Cheatham County Sheriff’s office deputies all have dash cams and body cams. I can go down and get a copy in every case. It is a patchwork system of unfairness.
  4. Listen to officer’s instructions on how to do the standardized field sobriety tests. According to their training material, the instructions are supposed to be performed exactly the same way by every officer. In all the DUI videos I have seen rarely does it happen.

If you want to level the playing field give us a call, our law firm  has more experience in handling DUI cases than anyone in Middle Tennessee. Check out our website for more information…www.RobMcKinneylaw.com

Malcolm Gladwell wrote a great book titled Outliers. The book covered the careers of The Beatles , Bill Gates , and others. The premise of the book is that one does not become an expert until they do something over 10,000 hours. After 22 years of practicing criminal defense law, I still learn something new each week. Here are three lessons from the courtroom from Sumner County General Sessions Court last week;

  • File motions.

The charge was child abuse. One of the elements was that the neglect adversely affected the child’s health and welfare. No proof was stated in the arrest affidavit. I filed a motion to dismiss based on a lack of evidence of any real harm. The motion caused the assistant district attorney to look more closely to the case. The case was retired for 90 days on condition of attending a parenting class.

  • Never agree to be interviewed by the police without a lawyer.

The Sixth Amendment of the U.S. Constitution sets forth one of the fundamental rights of speaking to a lawyer before being questioned by police. An interview was given. Police have extensive training on interrogations. It can lead to false confessions or deception to avoid any problems. Statements taken out of context lead to a arrest for theft. Case was prepared for trial. Case was later retired.

  • Be a sentencing advocate.

Family did not make a bail bond for a loved one. Let him stay in jail to teach a tough love lesson.  Screened in jail for recovery court. Bonded out. Recovery court recommended intensive outpatient treatment. Burglary case reduced to a misdemeanor. Felony and more jail avoided. Used the jail time he served and the treatment option to avoid a felony and a harsher sentence. Sometimes people are guilty. Be a sentencing advocate to help save a life.

Those were last week’s lessons from the courtroom. I am thinking this might be a new category of the blog. To my fellow criminal defense lawyers, what are your lessons from the court room ?

 

 

 

The Tennessean has recently published two articles on some questionable practices of the Davidson County. TN. grand jury. A grand jury’s main role is to determine if probable cause exists in order to return an indictment. The concerns were raised by the grand jurors themselves in their final report. One concern from my point of view is the list of speakers that gave a presentation.

  • District Attorney Glenn Funk gave a overview of the role of the district attorney in grand jury proceedings.
  • Members of the Child Sex Abuse unit including a nurse at Our Kids gave a presentation of on sex abuse victims.
  • Nashville DUI officer Brad Nave gave a presentation on DUI cases. Mr.Nave even talked about the 91% accuracy of the standardized field sobriety tests to determine impairment. At the next presentation , I hope he tells the grand jury about a case I had with him on August,1 where he stated the client failed the field sobriety testing yet had zeros across the board for alcohol and drugs.
  • Members of the gang unit, drug task force, and the warrant division as well as Chief Anderson gave presentations.

In the final report, the grand jury expressed concern on preserving independence and avoiding bias. It seems difficult in light of the numerous presentations given during the term of the grand jury. Here is an excerpt from the report.

"The grand jury should remain impartial and unbiased during its deliberations and the close relationship with police procedure and proceedings put that in jeopardy," the jurors wrote in their end-of-term report, filed this month.

One concern raised by the Tennessean was grand jury foreman Stan Fossick. Since 1993 Mr. Fossick has been appointed grand jury foreman in at least 42 grand juries. it might be time for some new blood in the job of grand jury foreman. My own personal complaint of Mr. Fossick is I requested a client of mine testify to tell his side of a domestic violence case. My request was refused even state law allows one to testify before the grand jury on a vote of its members. Recently, he told his story and the court found him not guilty of domestic violence. I will always wonder what the grand jury would have done if they had listened to his story. The report spoke of the one sided point of view from the state. It was certainly on sided in one case.

The Tennessean called for reforms of the Davidson County Grand jury Here are my suggestions.

  1. End the practice of allowing police officers to speak before the grand jury unless the grand jury on its own initiative requests to investigate some aspect of the criminal justice system.
  2. It might be a good time to let someone else take a turn as grand jury foreman.
  3. While not addressed by the report, it has been a long time practice of allowing others not involved in the case to testify from the grand jury by just reading the arrest report.

 

 

Nashville’s News Chanel Five reported yesterday of one Tennessee judge’s unusual method to reduce one’s jail sentence. White County Tennessee General Sessions Judge Sam Benningfield entered a standing court order granting 30 days of jail credit to those serving jail sentences. The catch to getting the jail credit is to agree to have a vasectomy or the have a birth control device implanted.

It strikes me as an extreme abuse of judicial power. Judges in Tennessee determine the jail sentence if no plea bargain is entered into. The court holds the keys to the jail cell once a sentence is imposed. It puts the court in an unfair bargaining position. Everybody in jail wants out of jail. To force one to have themselves robbed of their ability to reproduce is a practice that should not be tolerated. To his credit, the local District Attorney General Bryant Dunaway agrees. Here is his statement from the report.

 

District Attorney Bryant Dunaway, who oversees prosecution of cases in White County is worried the program may be unethical and possibly illegal.

“It’s concerning to me, my office doesn’t support this order,” Dunaway said.

“It’s comprehensible that an 18-year-old gets this done, it can’t get reversed and then that impacts the rest of their life,” he added.

The American Civil Liberties Union also took a position.

"Offering a so-called ‘choice’ between jail time and coerced contraception or sterilization is unconstitutional. Such a choice violates the fundamental constitutional right to reproductive autonomy and bodily integrity by interfering with the intimate decision of whether and when to have a child, imposing an intrusive medical procedure on individuals who are not in a position to reject it. Judges play an important role in our community – overseeing individuals’ childbearing capacity should not be part of that role."

In Davidson County Tennessee, it is common to work out a probation violation case on the condition that the defendant will enter a drug or alcohol program and be released upon the condition that they complete the program. This is completely different than court sanctioned sterilization. While the court’s actions may be well intended, it is simply wrong. No Tennessee law sanctions this type of conduct by the courts to reduce jail time.

I suggest we watch this story and see how it develops.

I waited a few days before commenting on Tiger Woods recent arrest for driving under the influence of prescription drugs. The police recently released photos of the car and a audio tape from the arrest. I predict this trend of arrests while driving under the influence of prescription drugs will increase as the population ages.

Mr. Woods issues with his  back is well documented. It appears he uses prescription drugs to cope with his pain. The big question is whether his use of prescription drugs impaiedr his ability to operate a car.

Under Tennessee’s driving under the influence laws, it is illegal to drive or be in control of a car while under the influence of a prescription drug that affects your central nervous system. Mr. Woods was taking Vicodin which does affect the central nervous system. Here is a link on how Vicodin works.

Here are a couple of takeaways.

  • There is no per se limit of the amount of prescription drugs that can be in your blood unlike alcohol.
  • Was the medication being used as prescribed ?
  • Were there warnings on the label ? I am most concerned with the warning labels. Due to my job, I take high blood pressure medicine. The warning indicates that I should not operate machinery when I first take the medication until I get used to it.
  • What were the doctor’s warnings ?

 

 

The government must prove that the prescription medication impaired the driver’s ability to safely operate a motor vehicle by depriving the driver the clearness of mind and control of oneself that the driver would otherwise possess. See T.C.A. 55-10-401(1). Defending driving under the influence of prescription medications requires some basic knowledge of pharmacokinetics and pharmacodynamics effects. If you need more information on defending driving under the influence of prescription medications please feel free to contact our office.