When I first read that the Tennessee State Legislature was going to require all of those convicted of first offense DUI in Tennessee to have an ignition interlock device, I thought the lobbyists for the ignition interlock companies were simply hard at work. Once the bill went into effect, I was pleased to read that those eligible for a restricted driver’s license had been expanded. I thought everyone practicing DUI defense was aware of the new law. However, it was not until I went to court and talked to several lawyers who did not know those with multiple offense DUI convictions are eligible for a restricted license.

Tennessee Code Annotated 55-10-409 was amended and went into effect on July 1,2013. The new law made all DUI offenders eligible for a restricted driver’s license with the installation of a ignition interlock device. It also allows those convicted of DUI second offense or greater to apply for a restricted license. Here is the catch~~You must have the device installed for the life of the license revocation. For example, if your license is revoked for a third offense conviction and as a result your license is spended for six years, you could be eligible for a restricted license as long as you have the device installed. 

There are some exceptions to this amended law. A conviction for vehicular assault by intoxication, vehicular homicide by intoxication, aggravated vehicular homicide or similar offense in another state precludes one from obtaining a restricted driver’s license. One other big exception is if another person is "seriously injured or killed" in the "course of conduct that resulted in" the driver’s conviction for DUI.

Continue Reading Tennessee DUI Law Alert

Walter Roche wrote a nice article in the Tennessean yesterday on the new bail bond law. The first version of the bill limited the bail bond company’s exposure to one year on a misdemeanor and two years on a felony. If the case was not concluded , the accused had to make a new bond. Now, most folks think one year is enough time to settle a case. However , blood tests for drugged driving cases take up to forty weeks and sometimes longer to get a result. The bill that was passed let a bail bond company off the hook once a defendant pleaded guilty .The effect is that a person has to make a new bond or go to jail until the sentencing hearing. Folks that made a bond before the law went into effect probably were not told what would happen.

I am proud that the Davidson County Criminal Court Judges stepped up to the plate to create some fairness in the system.The court order requires the bail bondsmen to notify their clients if they intend to go off a person’s bond at plea. I should also state that most bail bond companies in Nashville are remaining on the bail bond after plea. I do understand the bail bondsmen position.Maybe a little communication is in order . My proposal is just to notify the bail bondsmen or bonds women that a plea was entered and a sentencing date is set. For those not in the criminal justice system , a plea of guilty to certain crimes carries a automatic revocation of bond like rape. Most folks at a sentencing hearing are eligible for some type of alternative sentencing.

Continue Reading New Tennessee Bail Bond Law Creates Chaos

Patriots tight end Aaron Hernandez has been charged with murder . While his lawyer Michael Fee puts his spin that "it is a circumstantial evidence case;it is not a strong case." I disagree with Mr.Fee based upon what is reported in the news.

Mr.Hernandez was caught in large part based on the newest weapon in a police murder investigation arsenal. Tracking a cell phone tower is the latest way to investigate murder cases in today’s world. Your cell phone calls leave a digital footprint where your phone as been used. Most times the phone is with you. Police pieced together cellphone tower tracking records to find out the location of Hernandez. Then, it appears they captured text messages from those involved. One text could be considered a declaration of the deceased that he was with Hernandez.

Video cameras may have captured some of the goings on before and after the murder. The Boston Marathon bombing showed how police used these video tapes to capture the bombers. Here, there were video cameras inside and outside the Hernandez home.

Mr.Fee may think it is circumstantial evidence, but the proper use of cell phone technology can plot a time line of Mr.Hernandez movements before and after  the shooting based upon his use of his cell phone . My experience is that this type of evidence is powerful if done properly.

Old school ballistic evidence matched the bullets found at the scene of the murder to shell casings found in the rental car. The killer must have used a semi-automatic that ejected the shells rather than a old school revolver . The snitches will be the last piece of evidence. One police theory is that others are involved. Police will not confirm or identify the other two men who were with Hernandez. A person facing a murder rap may just talk about what Mr.Hernandez did that night.

The Hernandez case is one example of the use of technology being used to solve crimes. Most folks don’t realize they leave a trail of their whereabouts when they use their cellphone . Expect to see more investigations utilize cell phone tower tracking. One more key point is that under Tennessee criminal law circumstantial evidence is enough to convict one of first degree murder.Mr.fee has his work cut out for him.

All good trial lawyers have a theme for a trial. A theme gives a core to build your facts around. A theme gives the jury something to grab and hold. Should you have a theme for you argument at the  Court of Criminal Appeals ?

First , all criminal defense lawyers don’t really like appellate work. It means they lost at trial , but everyone has at least one more chance to win their case. In Tennessee , every defendant has a right to appeal to the Tennessee Court of Criminal Appeals. Issues of error are raised in a motion for a new trial.Briefs are written setting out the facts and the legal argument.  Oral argument is set. Then what ?

Last week , I had a appeal set for oral argument. In Tennessee , you get 20 minutes to make your case. I thought why not theme your argument much like a trial. The main issue was that the court failed to grant a severance as to the different counts in the indictment. In this case, two different attempted murder cases was joined with another murder that happened on another date and location. My theme was piling on the defendant.

When I played football in the front yard in Madison ,Tn. , you would get called for piling on when you jumped on the ball carrier after he was down. i thought that was a good theme to argue why the judge erred in denying the severance motion. I used the theme during argument to simplify the concept of why the rules of criminal procedure gives one that right.

I knew the theme worked after listening to the next case. The next case was about a joinder. The lawyer argued that the cases should have been joined. One of the judges asked the lawyer " What it have been piling on if the cases were joined." Once I had the court using my theme , I knew you should always theme your oral argument.

 

 

Last week , I posted about Rutherford County Circuit Judge Royce Taylor’s prosed dress code for women lawyers . I was preparing for an oral argument before the Tennessee Court of Criminal Appeals and came across some suggestions for dress before the court.. I have a habit of skimming a book by Bryan Garner and Justice Antonin Scalia before any appeallate argument . In "Making You Case" , the authors give some very practical tips on brief writing and oral argument. As I was reviewing the book for the argument , I came across their tips for dress in appearing before a appellate court. I thought these suggestions may be timely in light of the dress code uproar. Remember I still like personal style , but at the appellate level it is a different ballgame.

Here are a few of Mr.Garner’s suggestions ;

  • Make a good impression.
  • Dress appropriately and bear yourself with dignity.
  • No sport jacket.
  • Wear a dark suit like dark gray ,dark blue, or black.
  • The same goes for women lawyers.
  • Wear a white shirt and a dark red or dark blue tie.

The point is one must dress for the occasion. Dress does matter. I need to remind myself the same even as we begin a Southern summer. I will freely admit that I may wear a seer sucker suit in the summer , but there is a time and place for everything.

Mr.Garner quotes Shakespeare in his book , "Apparel oft proclaims the man.’ Maybe that’s why judges wear a black robe so they don’t have to make any wardrobe choices . Myself, I like to dress with a little fun , but when the occasion calls I can break out the dark suit.

 Finally , another borrowed quote from Mr.Garner courtesy of hon.Robert H. Jackson.

You will not be stopped from argument if you wear a race-track suit or sport a rainbow necktie.You will just create a first impression that you have strayed in at the wrong bar

 

Bobby Allyn of The Tennessean reported in a story about efforts by Rutherford County Circuit Judge Royce Taylor to impose a dress code  for women lawyers. Judge Taylor issued a memo on the subject of proper dress for women attorneys. The memo did not address a specific code of dress but referred all questions to his assistant.

Comments posted to the newspaper article range to the extremes on both sides of the issue. As well as the attorneys quoted in the article. First , lawyers should dress with respect for the court and the legal process. However , there is a difference in dress for a murder trial verses doing an uncontested divorce. Putting down written standards may be a little harsh. Causal Fridays have evolved into a relaxed dress code for many. The difference is when a lawyer appears in court and what type of case.

If the memo was aimed at attorneys of both sexes , it might not have been a big deal. However , the memo targeted women lawyers. Male lawyers are just as bad ,but a guy can put on a jacket and a tie no matter how hideous it may look. Disclaimer. I may dress a little outside the box with seersucker suits and a few choice shoe colors.

 

The dress code memo has created a stir in the press. Even the American Bar Association has issued a article on Judge Taylor’s memo. It appears if you just Google dress code for women lawyers Judge Taylor is everywhere. What the furor have been different if it addressed men and women lawyers.

Should women be singled out ? Should lawyers dress be regulated by the courts ? I can only imagine what Justice Scalia would say if a women lawyer showed up for oral argument in a short dress and a halter top. Every court appearance is different. Why not different  dress ? The market place will settle the dispute. Will clients hire lawyers no matter how they dress ? Or will they hire the most professional and best lawyer they can hire. I guess it is a continuation of the office less lawyer . Dress for success no more.

Chad Ochocinco was jailed for 30 days due to his behavior in a Florida court room. Here is the link to the video from TMZ. Chad Ochocinco formerly known as Chad Johnson pleaded guilty to a domestic violence charge.Mr.Ochocinco failed to meet with his probation officer. A probation violation was issued. An agreement was made where he would receive a 30 day suspended sentence and do some community service work. At some point , Ochocinco swatted his lawyer’s rear end then the court room erupted in laughter. The judge went ballistic. The court refused to accept the agreed upon disposition and ordered Ochocinco to serve 30 days in jail.

Did the judge overreact ? My thoughts are yes. My son played AAU basketball.During a break or time out, the coach would whisper in his ear and swat his butt. My son’s next shot was always going in after the butt slap. It is a time honored move in sports. Did the court abuse his discretion in refusing to accept the deal on the probation case ? Some in the blog world think the court went out of bounds in it’s ruling.

What are the lessons from this case ?

  • If you are on probation , always meet with your probation officer.It is the easiest thing to do.
  • Never give your lawyer a butt slap.You will never know where you will end up.
  • If you agree to probation, make sure you can fulfill the conditions.

My final thoughts are Free Chad Ochocinco.The court made it’s point.Now it is time for the court to do what is right and accept the agreement. Sure the court needs to maintain order in the courtroom , but a courtroom is not a vacuum. How many times did this court accept a disposition on a probation revocation case ? How many did it reject when the defendant did something stupid.

The purpose of a  bail bond is to release a person charged with a crime from jail. In exchange , the accused promises to make all their court dates subject to the bail bond being forfeited upon a failure to appear. What happens when the courts set an excessive or punitive bond to punish those charged with certain offenses ?

 

A person charged with a misdemeanor is normally given a small bond of a couple of thousand dollars. Last week , I discovered that bail bonds were being set in Sumner County , Tennessee for $75,000.00. for DUI Second offenses. A person charged with a DUI second offense would have to write a check for the $75,000.00 or pay a bail bondsman a fee to get out of jail. A magistrate or a judge is given some discretion to use certain measures on a person charged with a multiple DUI offense such as ignition interlock and a scram device to name a few.

The question then is whether the amount of bail is punitive. How is the bail bond on a DUI offense compared to other crimes ? Is the same amount being set on all multiple DUI case ? Should one just pay the bond or file a motion to reduce bond. Here is a link to a short video on the factors for a bond reduction.

So fight the bail bond and you might get hammered on the conditions of bond or you can pay a excessive bail bond to get out out of jail. Not much of a choice when you are presumed innocent.

 

 

How the government will implement  collecting DNA at the time of arrest remains a subject of discussion .The Urban Institute Justice Policy Center issued a final technical report on the policies , practices , and implications of collecting DNA at the time of arrest. Here are a few of their findings;

  1. Arrestee laws will increase laboratory workloads.
  2. The burden of expunging the DNA sample will be placed on the arrestee whose charge has been dismissed.
  3. Collecting the samples will require a increase in funding.

The states that have enacted DNA collection have different qualifying offenses. Some states collect DNA from all felonies others like Tennessee just collect DNA from violent offenders and those that have been convicted of a crime. Tennessee’s current program seems to make sense. Currently , Tennessee has collected 81,000 DNA samples and has sent 61,000 to the Combined DNA Index System (CODIS).

My prediction is some state legislator will try to jump on the bandwagon and push for DNA collection of everyone arrest of a crime even DUI. Then, the cost will become a issue. Just imagine the cost if the case is dismissed and the TBI  has to erase all the DNA records.It will be interesting if there will be a move to expand DNA sampling at the time of arrest.

 

The first step towards a police state is being able to track , locate or identify all the people. The U.S.Supreme Court approved the first step in that process with the case of  Maryland v. King . Maryland as well as 28 other states and the Federal Government take DNA samples at the time of arrest. Tennessee takes a sample on some violent crimes. The majority of the court make the analogy that DNA is simply used to identify someone like a fingerprint or a photograph.

Hogwash. DNA is an investigative tool.Once a sample is captured , it is sent to a DNA database. It is checked against DNA samples recovered from crime scenes in hope of a match. In King , Mr.King was arrested and a DNA sample was taken .The sample matched from some DNA taken from a crime scene.

Justice Scalia blasted the other Justices in a rare oral dissent. Justice Scalia stated in part:

“The court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the state’s custody, taxes the credulity of the credulous,” he said. “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicion-less law-enforcement searches.”

 “This search had nothing to do with establishing King’s identity,” Justice Scalia wrote, warning that “as an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

 

Justice Scalia is dead right. This case is just another exhibit in the case against the shrinking Fourth Amendment. The Second Amendment grows which each court decision while the protections against an invasion of privacy wanes.

My fear is Tennessee will now take a sample of everyone that is arrested. Where does the court draw the line ? Do we start taking DNA samples of every child when they enter school ? How about we take a DNA sample when a child is born ? The court just ruled in Missouri v. McNeeley that the police should have a search warrant before a blood sample is taken . Is DNA different ?

Justice Alito opined that the King case may be one of the most important case in years regarding criminal procedure. He may will be right.

Will there be new standards on police ?. No DNA sample taken from the crime scene. Therefore , lack  of forensic evidence equals not guilty.

My fear is big brother or a police state may be closer now than ever before. Drone technology , video cameras , and now DNA sampling where are we headed ?