Troubled Titan’s wide receiver Kenny Britt now uses his smart phone to record the police when they question him. USA Today reported that a number of NFL players are now video recording their encounters with police officers. Britt is no stranger to the law having been arrested or facing charges since 2010. Britt now reports that police let him go after they find out he is video taping them.

The question is whether  all citizens should  video tape their interactions with police. I would submit it is a great idea. Most police officers in Nashville, Tennessee do not have video cameras. Only , the DUI enforcement unit , aggressive driving unit , and the drug interdiction unit has video cameras installed in their police cruisers. In some cases , it boils down to your word against the police officers. A video tape is great proof of what happened. Whether you consent to a search of your car , made a confession , or did field sobriety tests. A impartial showing of the video tape can be critical.

This summer a citizen video taped a Murfreesboro, Tennessee police officer at a DUI roadblock that went viral. It is not against the law to video tape any police action . Buy a smartphone and hit the record button.

I have a confession. I love to read John Grisham’s books. I just finished Sycamore Row. It was a great story. Many of the characters were from Grisham’s first book . Jake  Brigance returns  to try a will contest case. The trial revisits emotions from a time long ago. I  highly recommend the book.

During the trial ,  one critical evidence issue comes up. One of the heirs disappears . .Ancil Hubbard is found in Alaska on the eve of the trial. A videotape statement made under oath is taken in Alaska and is rushed to Jake to save the trial. The judge lets the video in and it changes the trial. The question is in fiction anything can happen, but how would it play out under the Tennessee Rules of Evidence.

The video statement is clearly hearsay. Hearsay is one of the bedrock rules of evidence. The basic rule is hearsay testimony is excluded unless it falls under some exception of which there are many. In reviewing the Tennessee Rules of Evidence Rule 804 may be the best argument Mr.Brigance can use to get the video admitted into evidence.

First some background , Ancil was the brother of the decedent Seth Hubbard. The video explains why he made his holographic will which disinherited his family. To complicate the matter , Ancil can’t attend trial because he is facing a cocaine charge and is now in jail. Ancil is unavailable for trial.

Rule 804 of the Tennessee Rules of Evidence allows certain exceptions to the ban on hearsay evidence if the declarant is unavailable . The rule allows a statement of personal and family history. Part (B) of the rule could allow Ancil to testify to the past family history which lead Seth Hubbard to change his will.

 Jake didn’t argue this rule with the judge , but the judge let in the video. The takeaway for lawyers is know the rules of evidence when you want to get critical evidence admitted. For readers , enjoy the book.

My Dad often said that "those that have the capital don’t get the punishment." Boy, he is still right on the money. Nashville Dr.Eddie Hamilton pleaded guilty last week of  to a misdemeanor heath care fraud charge. It seems the good doctor was billing Tenn Care and insurance companies for procedures he never performed. Dr. .Hamilton never even owned the machines that he said performed the tests. He over billed hundreds of thousands of dollars. It was more like theft. He paid 1.6 million dollars. In the same week , a banker pleaded guilty to a bank fraud case and was ordered to serve 21 months and pay restitution back once released.

Contrast  these cases where someone shoplifts less that $500.00 in Sumner County or Williamson County where they usually are sentenced to jail for a period of time. Shoplifting is a theft crime. Theft under $500.00 is a misdemeanor. Poor people who might be forced to shoplift which is wrong get punished harsher than someone who defrauds taxpayers in the hundreds of thousands. Does it seem right of fair. Why did the government let a person who admitted to health care fraud not go to jail ?  At least the banker got some time for his actions.

 

The point of the post is the little guy has to pay for his crimes while the white collar guys go free.

A Republican Congressman from Florida pleaded guilty in Federal Court in Washington D.C. to a misdemeanor charge of possession of cocaine. He was sentenced to one year of probation. He bought 3.5 grams of cocaine. How would that play out in Nashville,Tn. ?

First , possession of more than .5 grams of cocaine with the intent to manufacture , deliver ,or sell a controlled substance  carries 8 to12 years in jail plus a big fine. It is a felony . It carries 15 to 25 if you are within a 1000 feet of a school zone. The defense for the Congressman was it was for personal use and not for resale. According to news reports, the cocaine was bought for his own use and had sometimes shared it with others.

The reason he got a break was there was no evidence he intended to sell or deliver cocaine . Now the police might have made a case that he delivered the cocaine. Under Tennessee law , an accused can assert that he just possessed or causally exchange the cocaine to avoid felony charges. The law treats users differently from sellers. Causal exchange contemplates a spontaneous passing of a small amount of drugs where money may or may not be involved. The amount of the cocaine could be a problem for a reduction to a misdemeanor under Tennessee law.

I really don’t know what a blog really is supposed to look like. I comment on issues that interest me as well as things that come up in my law practice. Today , I thought I would report on how DUI cases are being handled in Murfreesboro, Tn. In 2012 , the Tennessee Legislature passed a law which enabled some criminal offenses to be expunged from your criminal record.

In 2012 , the Tennessee Legislature passed a law which enabled a person to expunge certain criminal charges from their record. Some of those charges that can be expunged can be found here . The reason this is important is in Murfreesboro , Tn. is certain DUI cases may be reduced to a reckless endangerment charge. Under the expungement law , a reckless endangerment case may be expunged at a later date .

In current plea bargaining agreements , a defendant is required to sign a waiver that a defendant will not seek an expungement of a reduced DUI charge . An execution of a waiver is a new wrinkle in the DUI process in Rutherford County. It appears this new policy is on orders from the District Attorney. What will the end result be with this new policy ? Probably more trials are in the forecast.

In most Tennessee drunk driving cases (DUI) , the police ask you to do some field sobriety tests. Most folks want to cooperate with the police and they try to do them. You just made the wrong decision. There are several reasons why you should not do the field sobriety tests ;

  • Under Tennessee law a citizen is not required to give evidence against themselves when asked to perform field sobriety tests.
  • The field sobriety tests are not scientific tests under Tennessee law.
  • Since they are not scientific tests , they are judged subjectively. Meaning , a police officer makes the decision.
  • Test conditions affect the field sobriety tests. Was the test surface level , lighted properly, and dry ?
  • Shoes with heels two inches or higher can affect the test.
  • Folks over 65 may have a hard time doing the tests.
  • Folks overweight may have a hard time doing the tests.
  • Medical conditions such as leg problems , old broken bones in your leg , back problems , inner ear problems are just to name a few.
  • Some argue that their is a gender bias in the field sobriety tests and are unfair to women.

Once a police officer smells alcohol on your breath or you admit to having two beers , your going to be arrested for a DUI. You can’t talk your way out of it . You can’t walk the line out of it. Exercise your constitutional rights and do not give the police evidence that can be used in court against you.

The Franklin , Tennessee Police Department announced a DUI checkpoint for November 15,2013. From the announcement , it will be somewhere on Hillsboro Road.  In fact , the Franklin Police Department posted this announcement.  This is the teaching point of this post. In order to comply with any constitutional problem with DUI checkpoints or DUI roadblocks , the police in Tennessee have to comply with certain safeguards established by the courts.

 

Article I Section 7 of the Tennessee Constitution  regulates unreasonable searches and seizures by the government. Normally , a car on Tennessee highways cannot be stopped without probable cause that a crime or traffic violation occurred. However , The Tennessee Supreme Court has  upheld DUI roadblocks if they conform to certain criteria.

In State of Tennessee v. Downey, the Tennessee Supreme Court set some guidelines for a DUI checkpoint;

  1. There must be limits on the police officer’s discretion.
  2. There must be a higher authority to select the time and location of the DUI checkpoint rather than the officers working the checkpoint or DUI roadblock.
  3. The procedures for the establishment of the DUI roadblock should be established by some administrative regulation or rule.

     In order for the DUI roadblock to be valid , it must comply with the law. Most jurisdictions in Tennessee adopt the Tennessee Highway Patrols guidelines set forth in general order 410-1,The bottom line is the state must follow the operating guidelines or the DUI arrested may be tossed. One of the main requirements is advance notice and publicity about the DUI checkpoint. In defending those stopped at a DUI checkpoint , one must make sure the administrative procedures are followed.

Drive safe and drink responsibly.

  

     

Chattanooga criminal defense attorney Jerry Summers discovered a major problem with a blood alcohol test in a vehicular homicide case he was handing  Mr.. Summers requested an independent sample of his clients blood. The independent test came back completely different than what the Tennessee Bureau of Investigation (TBI)  analyst Kyle Bayer reported. The case against Mr. Summers’ client was dismissed and an investigation ensued.

From reports , it appears Mr.Bayer switched two tubes of blood.

"All indications are that this was an isolated incident by an examiner who, despite extensive training, switched two adjacent blood samples at the onset of the analysis process and then failed to follow a number of procedural checkpoints which would have caught the error," writes Robert Daniel Royse, assistant director of TBI, in a letter dated Tuesday and obtained by the Times Free Press.

Mr.  Bayer was later fired  from the TBI. My question is if it is a one time mistake why was he fired ?  I think there might be a little more to the story. The big question is how will this affect your DUI case. Kyle Bayer performed over 3200 blood alcohol tests. All of his tests are being send to an independent lab for retesting. it is anticipated that it will take until February of next year fro the tests to be complete. It is likelihood all pending cases will be delayed.

The possible defenses to these cases may be a break in the chain of custody. Rule 901 of the Tennessee Rules of Evidence provides a requirement for authentication as a condition precedent before the evidence is admissible. Meaning that Mr. Bayer might have to come to court and testify in order to maintain the chain of custody. One alternative is that the state might decide to prosecute the cases without the blood alcohol evidence. One thing is for sure . We can no longer accept the lab reports without a through examination.

A battle is being fought in the Vanderbilt football players rape trial. However , the battle is not between the accused verses the government. It is The Tennessean verses Metro Police. The Tennessean issued a request pursuant to the Tennessee Open Records Act . Metro Police issued a denial of the records request based upon the fact that the records are part of a open/pending criminal investigation. The main issue is the right to have a fair trial verses the presses rights to open record

 Already the court has issued a gag order prohibiting speech about the case. Now the newspaper wants access to records including test messages and surveillance videos for the case. Will providing those texts and videos deny these men the right to a fair trial . What is the public’s need to know about a criminal investigation. Will surveillance videos of the victim then be blasted out over the newspapers website ?

David Raybin has long argued that criminal discovery should not be placed in the case file for various reasons. I agree. Disclosure of sensitive evidence can harm ones right to a fair trial or make it more difficult to get one. The newspaper wants to find out if the quarterback was one of the players that helped move the victim. Let the government prosecute the case. Let the attorneys defend the case. Let justice be done for both sides. What good does it do to reveal video tapes or text messages ? Let the jury see then the paper can report from the courtroom.

       

The District Attorney’s Office here in Nashville is using a new tool at their disposal. On some simple crimes , a defendant is offered a suspended sentence. A suspended sentence is suspended  for a period of time . Recently , the assistant district attorneys have been more aggressive in filing motions to revoke a suspended sentence based on new criminal charges.

T.C.A. 40-35-311 provides the procedure to revoke one’s suspended sentence. The procedure provides that the trial judge or General sessions judge has the power to revoke a suspended sentence based on a violation of probation or a breach of the laws of Tennessee. In revoking a suspended sentence in General Sessions Court , the State of Tennessee is simply filing a motion with the court. The statute provides that the court must issue the revocation warrant. In the cases I have seen in Nashville, the assistant district attorney files the motion. The procedure is not followed.

If the court finds you have violated the conditions of the suspended sentence, the court can order you to serve the sentence or sentence you to any community-based alternative to incarceration. You also have the right to appeal the judgment from General sessions Court to criminal court.

If you find yourself facing one of these motions to revoke your suspended sentence, make sure the procedure is being followed.