While I was working on this post in court yesterday , I mentioned it to a fellow lawyer who showed me this Chris Rock video on "How not to get your ass kicked."  Some of Chris Rocks tips are very similar to mine. Probation should be easy. There are simple rules like not get arrested and other rules. Here are my tips not to get your probation violated.

1. Smile when you meet your probation officer for the first time.

2. Be nice and pleasant to your probation officer. Remember your probation officer can send your butt to jail.

3.Send them emails , cards , letters. Hope they get tired of hearing from you.

4.Do not let anyone ride in your car. They may have something on them which could send you to jail.

5. Don’t have anything in your car. You probably signed a order consenting to a search anytime during probation.

6.See tip 4 and don’t ride in a car with anyone else.

7. Do not have a girlfriend or date. Also , be real nice and sweet to your wife. Just think domestic violence charge.

8. Don’t use drugs. You never know when that random drug test might pop up.

9.If you fail a drug screen , get your own drug screen as soon as possible.

10. Pay your court costs and fines off as soon as possible.

10.Satisfy all bond conditions as soon as possible.

Follow these tips in order to avoid a probation violation warrant .

 

                               

Wayne Gretzky was one of the best hockey players ever to put on skates. He had a great line which is the title to this post "You miss 100% of the shots you never take.’ That advice is very true for criminal defense lawyers. A criminal defense attorney must take the shot early and often.

I see time and time again where a criminal defense attorney waives a preliminary hearing. Why ? My usual answer is lazy or does not want to make the assistant district attorney or judge mad. Take the shot . .Develop  a defense. Show your client your are fighting for them. Exploit some weakness in the case that will help you at trial or drive a more favorable plea bargain.

The probable cause for the traffic stop is questionable. File the motion to suppress . Take the shot. Here is a recent example of taking the shot. Client arrested with a .37 BAC. The stop was in question based on State of Tennessee v Kirk Williams . If you are a DUI attorney you must read and understand this important case. So , I file the motion and we were able to resolve the case to a favorable result.

If you are going to hire an attorney , ask them about their take on hearings , motions , or trials. Do you want to entrust  your case to a lawyer who won’t take a shot. Wayne Gretzky is 100% right. I will keep on taking my shots. I hope others follow. Who knows you might be holding up the trophy or hearing the two word verdict.

A search warrant is one of the main tools that police have in obtaining evidence. Last week , a Robertson County , Tennessee man had his animal cruelty charge dismissed by the assistant district attorney. The reason was that the judge ruled that the search warrant was not legally valid.

The search warrant was signed by an employee of the Humane Society of the United States. Rule 41 of the Tennessee Rules of Criminal Procedure provides that a magistrate must endorse the search warrant.

In the Robertson County , Tn. criminal case , members of the local humane society signed the search warrant. The issuance and the execution of the search warrant was in violation of Tennessee’s search and seizure laws. The trial judge had no choice but to suppress all evidence of the illegal search. Ultimately , the assistant district attorney had no choice but to dismiss the animal cruelty charges.

The lesson for criminal defense attorneys and those charged with a crime via a search warrant is always look at the search warrant. One technical defect may lead to a search warrant being illegal. In all cases , the devil is in the details. My criminal law tip of the day is to review Rule 41 of the Tennessee Rules of Criminal Procedure and make sure the search warrant compiles with the rule.

You know why they serve food at cocktail parties ? It slows down the absorption of alcohol. Texas DUI lawyer Deandra Grant  wrote a great post  on how to avoid driving while intoxicated. Tip 1. Notice I borrowed her title.

Drinking alcohol on an empty stomach increases rapid gastric emptying which is associated with a much faster absorption of alcohol into the blood stream.The alcohol goes right through the stomach into the intestines which absorb the alcohol faster. So drinking on a empty stomach means the alcohol is processed more quickly. Food in the stomach is the number one factor that influences the absorption of alcohol from the stomach.

Drinking with food slows down the absorption of alcohol because food is present with the alcohol so the alcohol is trapped in the stomach until the food is digested.  Ms. Grant advised eat a wing or a nacho at happy hour. My choice is a have something to eat at a tailgate party. Food makes a difference. In fact , Metro Nashville Police usually ask about your last food intake in their 132 form which is required in every DUI case in Nashville,Tn.

In Tennessee it is not against the law to have a drink and drive . It is only illegal to drive with a blood alcohol concentration of .08 BAC or that alcohol or another substance impairs the driver’s ability to safely operate a motor vehicle by depriving the driver of the clearness of mind and control of oneself which the driver would otherwise possess.

Remember the best way to avoid a DUI is to drink responsibly and when in doubt take a cab.

 

 

Arrested in Nashville, Tennessee? One of the routine procedures in the booking process is taking a mug shot.  Here in Nashville, your picture appears in a magazine called Busted where all your friends can see your picture.  Some newspapers even publish the mug shots like The Expositor in Sparta, Tennessee. The New York Times ran a story on the the sordid business of posting mugshots for profit. I thought I would share a celebrity mugshot. I think they are different from Joe Citizen since they are in the public eye.

These websites, newspapers and magazines rush out and publish these mugshot photos hoping to make a buck.  Some police departments even publish the mugshots. The Nashville Police Department has, at times, published the photos of those arrested in a prostitution sting. It is my opinion this is done in hopes that publicly shaming the individual will prevent the person from doing it again or sends a message to others that if they do it, they run risk of having picture posted for all to see.

The issue that I have with law enforcement, news publications, magazines and other forms of media is that the individual is branded before they are convicted.  Most minor criminal charges could possibly be dismissed  or in some cases an action like judicial diversion, can be taken to avoid a criminal conviction.  Those that have their case dismissed and expunged from their records still face public embarrassment even though the charges are dismissed. Some employers even Google or search the Internet for a potential hires’s name. Guess what might come up? Your mugshot from a case that was dismissed.

Some states are enacting laws to protect those that have their case dismissed. Oregon and Georgia are working on laws that require the website to take a photo down within 30 days if that person’s charge was dismissed. Utah is working on a law that would not allow a mugshot to be used on a site that charges a fee to take it down.

News groups are fighting any laws that limit the restriction on mugshots. Why? Mugshots of a famous person sells papers and drives website traffic. They do not want to stop a mugshot from being released because doing so could mean losing money.

The dirty secret is the money that  these websites make. Now, there are companies that charge a fee to remove your mugshot. It reminds me of a three card monty game. Put it up, then charge to take it down.

Should Tennessee regulate mug shots? I believe Tennessee should regulate mug shots.  Release the mugshot after a conviction. My other problem is the double standard. Some records are public, but sometimes the police will not give up police reports to a defense attorney. The trade off is what is real news versus exploitation of a person facing a minor offense?

 

 

 

One of the critical pieces of evidence in any Nashville DUI case is the arrest video tape. Surprisingly , few Metro Nashville police cars have video dash cams. In Williamson County , Tennessee almost all  police cars have video dash cams. The Tennessee Supreme Court recently issued a ruling on lost video tapes.

In some DUI cases , the arrest video is lost or destroyed for various reasons. For years the courts struggled on how to deal with a lost video tape. In some cases , the court gives a Ferguson charge which allows the jury to infer that the lost video may be favorable to the accused.

In State of Tennessee v. Merryman , Judge Stanley in McMinnville , Tennessee dismissed  a DUI charge based upon the loss of the arrest video. The Tennessee Supreme Court upheld the dismissal of the DUI charge. The court found that dismissal of the DUI charge was an appropriate remedy due to the fact the defendant may be denied her right to a fair trial.

Here is the framework for a successful motion to dismiss. One needs to prove the Ferguson factors. The first factor is the degree of negligence in the state’s failure to preserve  the video recording. Second , the court must examine the significance of the destroyed evidence in light of the probative value and reliability of the remaining or secondary evidence.Finally , the court must consider the sufficiency of the remaining evidence used at trial to support the convictions.

Merryman is important because now the courts have the power to dismiss cases if their is a loss or destruction of evidence .

What should be the goals of  Tennessee’s drunk driving laws? Punishment? Toughness? Rehabilitation? DUI laws are a political football in Tennessee. The Tennessee Legislature creates some new DUI law every term from mandatory ignition interlock to increased punishment. But what are the goals?  Should our government encourage people charged with a crime to get help? Here is a thought from someone who has been defending DUI cases and helping people deal with a DUI charge since 1994.

First, treatment should be encouraged and rewarded. Now, I do understand that some people will go to treatment just to try to make their case look better. However, a great number of those charged with DUI get the wake up call of their lives and recognize their alcohol issues once they are arrested. Under current Tennessee law, only those charged with a DUI second offense can get credit from a judge for participating in a alcohol or drug treatment program. One other catch is that the treatment has to be post judgment or after someone pleads guilty. When does a person need treatment most? As soon as they recognize and admit they have a problem. Why do they only get credit  after a judgment is entered?

Tennessee’s DUI law should be changed to give everyone jail credit for inpatient alcohol and or drug treatment regardless of the offense charged. Charged with a first offense DUI all the way to a felony DUI one should be given jail credit for treatment. Secondly, a defendant should be given credit whenever they complete the treatment after an arrest. Why should a person have to wait to do treatment until their DUI case is concluded? It does not make sense to this simple lawyer.

It goes back to what is the goal of a law? There are many definitions of what a law is simply by reading the dictionary.  A law is simply a rule to establish social order. Why only reward DUI second offenders? Are second offenders special? People that seek and complete treatment should be given consideration regardless of the offense and when they seek treatment.

Society is better served if a government helps its citizens.

                                

In my last post, I wrote about the two words every person facing a sentencing hearing must say. Words are important . It is not only how we say them but what are the words. Sometimes we need magic words. Time and time again I see folks facing a criminal investigation speak with police and law enforcement . Just today , a case where a person may have avoided getting arrested turns into a criminal conviction because they voluntarily spoke with a police officer.

What are the seven magic words that everyone should know when confronted with criminal investigation ? I want to speak to a lawyer. Why are these magic words ? Prosecutors may now discuss to a jury if you wanted to remain silent. If you ask to speak to a lawyer , evidence that the defendant invoked his or hers right to counsel in impermissible. See St. v.Johnson 743 S.W.2d.154(Tenn.1987). The reason why you are allowed to speak with a lawyer is nobody needs to go it alone in the criminal process. Police have training in getting statements and they use all their tools. we are trained to cooperate with the police from childhood. It is a natural human reaction. However , police calling you up to talk about a drug prescription or knocking on your door on a knock and talk signals a red flag.

My bottom line best advice to all those facing criminal charges from shoplifting to child pornography to murder is those seven magic words. I want to speak to a lawyer.

I have been a little remiss posting this summer. I have had a full plate with my term as President of the Tennessee Association of Criminal Defense Lawyers , a class at The Trial Lawyers College , as well as practicing law. So, back to the blog. Before I share with you the two most important words that must be said at a sentencing hearing , a brief explanation of what a sentencing hearing is in order.

Most plea bargains in Tennessee have a agreed upon sentence as to length and whether one should get probation or not. In cases in which the jury decides guilt , the judge always decides punishment except in capital cases and where a fine is set by the jury. In some cases , both sides can agree to the issue of guilt but can’t agree to the punishment. Then , the parties agree to a sentencing hearing. At the sentencing hearing , the defendant and the government can present evidence and call witnesses to support their position.There is statutory guidelines which the court must follow to determine whether a defendant should go to jail or serve their sentence on probation. if their are multiple convictions , the court must also determine if the sentences are consecutive or concurrent.

What are the two words that must be said at every sentencing hearing ?  I "m sorry. A defendant does not has to testify but can make a allocution . A defendant asking the court to be placed on probation needs to say I’m sorry and show some remorse for their actions. Personal responsibility goes a long way with most judges. If you plead guilty to some crime whether a domestic violence charge to a more serious charge like robbery. One must accept their actions and say your sorry.

 

 

Four former Vanderbilt football players were indicted for five counts of aggravated rape and two counts of aggravated sexual battery by a Davidson County Tennessee Grand Jury. Aggravated Rape is a Class A felony in Tennessee which carries punishment in the range on 15 to 25 years in prison. The definition of aggravated rape in Tennessee can be found here .

The case illustrates how some sex crime cases are handled by the District Attorney’s Office . A person can be charged with a crime in Tennessee by four different charging instruments. The most common are the warrant and an indictment. One primary difference is that a direct indictment commonly referred to as a sealed indictment takes the case directly to the grand jury. It eliminates a couple of steps in the process. One of those steps is the preliminary hearing.

A preliminary hearing is one step in the criminal court process. If you are arrested by a warrant , you are entitled to have a hearing for the court to determine if there is  probable cause to send your case to the grand jury. In fact , the Rules of Tennessee Criminal Procedure still allows a preliminary hearing if the case is indicted after arrest but before a preliminary hearing can be held. A direct indictment skips this step.

Why would a prosecutor seek a sealed indictment instead of a arrest warrant ? In some sex crimes cases , the district attorney wants to avoid a preliminary hearing. A preliminary hearing is one of the best building blocks of discovering facts about the case.  The state is required to put on some evidence to prove probable cause. It gives a defense attorney a chance to cross-examine the state’s witnesses. One reason the state presents a case directly to the grand jury is to avoid placing the alleged victim on the witness stand to protect them from reliving the event. 

In this case , the state did not to arrest these men immediately. The state collected DNA and other forensic evidence that was analyzed by the Tennessee Bureau of Investigation. Based on the charge of unlawful photography charge of one of the former players. It looks like someone took pictures of what went on in that dorm room in June based upon that charge and the statements of police spokesman Don Aaron.

Some times I have wondered whether the sealed indictment is just a way to avoid some aspects of the criminal justice process. Now , I think in some cases  this it may be necessary to investigate rather than prosecute. In these types of cases a quick charge destroys lives and reputations. A solid investigation gathers evidence like the photos and forensic evidence. It is a tough balancing act . I for one favor investigation over confirmation.