One fear of criminal defense attorneys is to be caught on a wiretap discussing a case with a client. Recently , I was talking to a police officer and asked do you ever get any attorney-client phone calls. There was no admission but I did get some advice. Answer your phone Attorney McKinney.It lets everyone listening to the wire that an attorney is on the line. Why is this important ?

One principle of wire taps is minimization. The government has to minimize the intrusion of the telephone calls.Here is some language from two Federal rulings:

The government is required under the law to conduct electronic surveillance in such a way as to minimize the interception of communications not otherwise subject to interception. U.S. v. Dimora, case from N.D. Ohio

This is done if the agents have shown a high regard for the right to privacy and have done all they could to avoid unnecessary intrusion. U.S. v. Feldman, 606 F.2d 673 (6th Cir.1979)

So when you call and I answer Attorney McKinney , you now know why.

 

An audit by the Inspector General for the U.S Department of Transportation has uncovered that the State of Mississippi has misused federal funds designed for DUI enforcement. The federal government provides funding to state governments to help enforce DUI laws. Mississippi, like Tennessee, does not have a law on the books that prohibits all open containers of alcohol in motor vehicles. Due to the lack of a complete open container law, the government diverts some federal money to DUI enforcement . Tennessee is in the same boat on this issue as Mississippi; however, there is currently a bill in the state legislature that will cure the problem.

Mississippi misused federal funds by using the federal money for other reasons (i.e. seat belt law enforcement). The audit criticized the way Mississippi handled the money. One of the proposals made in the report was to require one DUI citation per 8 hour shift.

Tennessee also receives money from the National Highway Safety Traffic Administration . I don’t know where all the money goes but most of it goes the Governor’s Highway Safety Council . In fact, their website states the office is all federally funded. Also according to their website , the money goes to various places. Some of the federal dollars goes to fund extra  DUI officers in Nashville, other cities and counties. These officers are commonly known as DUI grant officers. Under the recommendation set in Mississippi that there be at least one DUI citation or arrest per shift, it appears the government is setting an arrest quota. In fact, some Nashville DUI officers have received counseling because they don’t make a two DUI arrest benchmark. Clearly, Mississippi misuses federal money from the audit . The question I have is: Does the DUI grant and federal money create another federal bureaucracy by forcing officers to make a poor arrest decision based on the DUI grant or encourage overzealous officers to make an arrest?

 Sometimes government can get too big and powerful.

One question that comes up in handling drunk driving cases is "should I go to treatment." It is always a hard question . Going to a alcohol treatment is a personal decision not a legal decision. It should be based on a desire to help you not just get out of a DUI charge. Tennessee does allow jail credit of up to 28 days for inpatient treatment . Warning. Tennessee does not give credit for prejudgment jail credit.

Should you decide to seek treatment then you have to pick a provider. I ran across a article on Picking Addiction Help  by Jane Brody. Ms. Brody discussed a new book on addiction by William Cope Myers. The book "Now What ? An Insider’s Guide to Addiction and Recovery" provides some suggestions on how to pick a treatment provider. Here are some of the questions to ask;

  • Do they offer a full assessment before admission ?
  • Is there a social worker on staff to assist with work or family problems ?
  • Is there a program for family members to participate in learning the essentials of recovery and how to make the transition to return home?
  • Is there a aftercare program

Alcohol addiction is an illness.  Treatment is an option in Tennessee DUI cases to help solve the problems one faces. Just make sure you consult with your lawyer before entering treatment.

 

It appears that  hundreds of criminal indictments may be defective in Nashville. It appears that a Grand Jury Foreman had a felony record. The felony conviction made him ineligible to serve as a Grand Jury Foreman. It is possible that those convicted during that time frame may have their cases set aside. If you had a case with the docket number 2011-C-___ , you may have rights to get the case reopened.Her is a report on the story here.

Be careful. You might get what you wish for and start your case over. Check in tomorrow for a complete update.

 

                                  

Prescription pill abuse is out of control in Tennessee. Early in my career as a attorney, the drugs of choice were cocaine and marijuana. In the last few years, there has been an explosion in the abuse of prescription pills. The question is why and what can we do about the problem. Most folks think that because it is regulated by several groups that it should not be a problem. Boy are they wrong. Tennessee’s criminal courtrooms are filled with folks that got addicted to these pills.

Here are some hard facts;

  • Tennessee is in the top 1% of states that sell pain pills.
  • Tennessee is in the top ten states for drug overdose deaths.

Here are three of the problems as reported in a recent article:

  1. Lax reporting standards that would prevent doctor shopping.
  2. The increase in pain clinics and pill mills.
  3. Tennesseans have poor health which triggers an increased demand for pain medication.

Prescription drug abuse means that you are taking a drug not prescribed for you or you are taking it for other reasons or in dosages not prescribed.

What should we do ? Crack down on the source. Better reporting and increased punishment for the pill mill doctors. What should we not do ?  We need to avoid criminalizing drug addiction. Good hard working folks get addicted to these pills. Their only solution is to increase the dosages. Then , a doctor finally discovers the problem and cuts the patient off from the pills. Forgery of prescriptions or buying pills off the streets is what happens. Our state’s reaction is always to throw somebody in jail. The problem needs to be addressed with treatment of this problem not jail cells.

Funny , I have not seen one proposal for treatment or help in any proposal to the Tennessee legislature. Just crime and punishment.

 

 

 

My last post illustrated your constitutional right to remain silent when confronted by police. Following up on that theme is a report from the morning news. Eric Bugg was stopped for following a tractor trailer truck too closely. Once he was stopped, a Nashville police drug interdiction officer  saw two duffel bags in the back seat. The officer asked to search his car. Surprise. The officer found 29 pounds of marijuana in the car. Bugg goes off to jail charged with a drug crime and  his bond set at $150,000.00. Bugg is facing at least 2-4 years in jail plus a fine. What could he have done different ?

A citizen has a right to refuse a request to search your car or truck. There is this constitutional protection called the Fourth Amendment. It prohibits an illegal search and seizure. Sure , there are exceptions like the officer smelled the weed. The teaching point is you do not have to consent to an police officer’s request to search your car.

   

One of the most important things to remember when one is facing a criminal charge in Tennessee is to keep your mouth shut. I often refer to this as my "million dollar advice." I represent  good folks who might have made a error in judgment. So , they were raised to cooperate with the police. even some folks blog about that who have no legal degree. They are wrong. You have no legal duty to cooperate with the police in a criminal investigation.

If you are stopped by the police , you do have to show your ID. Once that is complete , you have no legal obligation to say anything. Remember the old Dragnet show . Anything you say can and will be used against you. Here are some illustrations;

Officer: Have you had anything to drink tonight ?

Accused: I had two beers.

Next thing you are being asked to get out of your car do do some field sobriety tests. The police still don’t tell you you don’t have to do these tests.Once you admit to drinking, they can ask you to get out of the car.

Officer: Someone tells us that you may have child porn on your computer. What to talk to us about it ? Or  Someone is accusing you of touching someone. Want to tell us your side ? We can help you ?

Accused; Sure I want to talk to you without a lawyer present so I can be tricked into confessing.

 

Continue Reading A Reminder to Keep Your Mouth Shut

                                  

I have been handling driving under the influence of ambien cases for awhile. The warnings were out there but it was sometimes hard to convince a Assistant District Attorney much less a jury of the effects of ambien. Most people can’t grasp that someone can sleep drive unless it has happened to them.Now there is hard proof of the effects of ambien.

The Food and Drug Administration announced new recommendations of the use of ambien based upon laboratory studies. Now , women should take less of the drug because they take longer to metabolize the drug. The FDA has reports of at least 700 driving mishaps with people on ambien or zolpidem.It does not count those that were charged with driving under the influence (DUI).

You now have defenses to driving under the influence of ambien.Make sure to check with your doctor if you are taking the correct dosage per the FDA report.

  

The U.S.Supreme Court heard a important case for all those that practice DUI defense. A blood alcohol  case was on the docket today. The issue is whether the police can avoid the search warrant requirement in seizing a blood alcohol sample. Lyle Denniston wrote a recap on the oral argument on the SCOTUS Blog .

It was interesting that Mr.Denniston opined that the court was trying to seek a compromise on the case during the argument. Most of the Justices agreed that their should be a requirement for a warrant to take someones blood. The question is when should the warrant requirement be waived. The government argued that the time factor in getting a blood sample with a search warrant requirement was critical and should be waived. Based upon the tone of the oral argument it appears the court is not going to allow a across the board waiver of a search warrant.

The case is very important as it applies to Tennessee. In some Tennessee DUI cases , there are mandatory blood draws for multiple DUI offenders. I agree with Mr. Denniston that there will be some type of compromise. The question for those in Tennessee will be whether the mandatory blood draws will stand up over court review.                                       

I read a blog post from Byran Garner who is the self appointed guru of legal writing. I enjoy Mr. Garner’s comments on writing style and word usage even though I might end a sentence with a preposition. In his post today , he commented on whether you should use pleaded guilty or pled guilty .

First, I wonder if Mr. Garner is ever stepped in front criminal jury or appeared in a criminal court room. according to Mr. Garner the correct usage is pleaded guilty. I beg to differ . In the criminal courts of Nashville Davidson County Tennessee you pled guilty. Modern usage trumps proper usage in Nashville. However , I spell checked the piece and it did not recognize the word pled. Mr. Garner is probably correct . But in the South ,  I think I will use pled. I will save pleaded for some stuffy brief. I intend to post a comment. I expect to get a grammar lesson.