I just discovered that the Metro Nashville Davidson County Police Department has a Facebook page . Everybody including police departments are into social media. Often , it is the police checking out your Facebook page looking for evidence or to find out information on folks.

Here is what I learned from the Facebook page ;

  1. Two police officers have gotten into trouble with the law and have been arrested themselves.
  2. Metro Police and the Tennessee Highway Patrol are planning a DUI checkpoint for this weekend

Here is part of the press release;

Officers from the police department’s DUI Unit will be joined by troopers from the Tennessee Highway Patrol in staffing a sobriety checkpoint Friday night, August 17, into the early morning hours of Saturday, August 18, on West End Avenue east of I-440.

So it appears the police will be targeting all driving on West End east of I-440.  Want to learn more about your rights at a Nashville DUI sobriety checkpoint ? Here is a short video on the topic.

As always please do not drink and drive.

 

 

 Gu Kailai was convicted of murdering a British business partner in China . The trial lasted less than seven hours including a break for lunch . The Chinese criminal justice system apparently works with great speed . It is quite different than the American criminal justice system.

Here are some of the differences that happened in Ms. Kailai’s trial;

  • The trial was held over 800 miles from where the crime occurred.
  • No jury decided her fate.
  • Ms.Kailai was deprived her choice of an attorney . She had to accept a government appointed attorney.
  • The criminal defense lawyer never had the opportunity to review or examine the evidence used against her.
  • No witnesses were called.
  • All testimony was presented in writing.
  • No cross examination of witnesses was conducted.
  • No defense witnesses were called.

The New York Times reported that China has a conviction rate of over 98% . No wonder that Chinese prosecutors never lose a case. One observer posted a summary of the trial on-line but it was quickly taken down. Censorship was at work to cover up the farce of a trial.

Folks complain about the American criminal justice system. Too slow , appeals , jury trials and the list seems like it goes on forever. However , I sure am glad we have the best criminal justice system in world .  Someone charged with murder should get at least a fair trial or one that appears to be orchestrated by the government.

 

Oops . I made a mistake . Yesterday , I posted about the collection of DNA samples at the time of arrest . Thanks to a Nashville Night Court Commissioner who reads the blog . I was advised that Tennessee does collect DNA samples at the time of arrest in some cases. I was not aware of the law which went into effect or had any complaints from folks that had their DNA seized.

Tennessee passed a law in 2008 that orders for the collection of a DNA sample in certain types of cases at the time of arrest. Tennessee’s DNA collection statute can be found at T.C.A. 40-35-321 . Those crimes that require a DNA sample are as follows;

(A) First or second degree murder;

 

(B) Aggravated kidnapping or especially aggravated kidnapping;

 

(C) Aggravated assault;

 

(D) Aggravated child abuse;

 

(E) Robbery, aggravated robbery or especially aggravated robbery;

 

(F) Aggravated burglary or especially aggravated burglary;

 

(G) Carjacking;

 

(H) Sexual battery, sexual battery by an authority figure or aggravated sexual battery;

 

(I) Statutory rape by an authority figure or aggravated statutory rape;

 

(J) Rape, aggravated rape, rape of a child or aggravated rape of a child;

 

(K) Aggravated arson;

 

(L) Attempt, under § 39-12-101, to commit any of the offenses enumerated in this subdivision (e)(3);

 

(M) Solicitation, under § 39-12-102, to commit any of the offenses enumerated in this subdivision (e)(3);

 

(N) Conspiracy, under § 39-12-103, to commit any of the offenses enumerated in this subdivision (e)(3);

 

(O) Criminal responsibility, under § 39-11-402(2), for any of the offenses enumerated in this subdivision (e)(3);

 

(P) Facilitating the commission, under § 39-11-403, of any of the offenses enumerated in this subdivision (e)(3);

 

(Q) Being an accessory after the fact, under § 39-11-411, to any of the offenses enumerated in this subdivision (e)(3);

 

(R) Aggravated vehicular homicide;

 

(S) Criminally negligent homicide;

 

(T) Reckless homicide;

 

(U) Vehicular homicide; or

 

(V) Voluntary manslaughter.

I would like to think my loyal reader on the heads up. Also , this is a perfect example for a lawyer to not assume they know all the law . Law is fluid and ever changing.
 

Now to find someone who wants to have the state statute unconstitutional.

 

The New York Times ran an editorial  on Justice Roberts order staying a Maryland Supreme Court ruling. Maryland passed a law that allowed police to take a DNA sample of those charged with a crime whether guilty or not. The Maryland Supreme Court ruled the law was unconstitutional based on a violation of the Fourth Amendment.   It appears the U.S.Supreme Court might hear the case.

It is a scary law that Maryland passed. Those charged with a crime has their DNA collected. Later, they might have their cased dismissed or found not guilty. The government still has their DNA sample. Big Brother is at work. Clearly , the law authorizes a seizure of someones DNA for no legitimate reason. Twenty four states authorize the collection of DNA at the time of arrest . Currently , Tennessee only authorizes the collection of a DNA sample after the conviction of a felony which is reasonable.

The question is why would Justice Roberts stay a state court order when the U.S. Supreme Court has not yet even decided if they are going to hear the case .  Granted , the case is important and needs to be decided . However , does a state constitution trump the U.S, Constitution ?   Under the Tennessee Constitution , Tennesseans do have more protection than the U.S. Constitution . The Fourth Amendment is shrinking and under constant attack. There are groups that fight any attack on the Second Amendment’s right to bear arms . I  wish we had a group as strong as the NRA to fight for the Fourth Amendment.

Maybe the government should take everybody’s DNA when they get a photo ID so they can vote. Then , the government could stop voter fraud and have a DNA data base.

 

I came across a question that was worth repeating. Can you move out of the state while on probation in Tennessee ?  When a person is placed on probation usually they sign a order of probation . One of the conditions of probation is that a probationer can not travel out of the state without their probation officer’s permission . That means a person cannot move out of state or even go a vacation without their probation officer’s okay. Now, a probation officer can authorize a person to move out of state. However , the probation must be transferred to the other state and it must be accepted by the other state.

What happens if you go outside the state without the probation officer’s permission ?  A probation officer could issue a probation violation warrant for your arrest based upon the move. Avoid any problems and ask the probation officer for permission to leave the state. It is always better to follow the rules of probation to avoid going to jail.

You want to have a question answered. Post your question in the comment section.

I recently received a comment to a blog post . First , I welcome all comments. Sometimes , folks post a comment that is a question . I will try to answer most questions if possible.

The comment addressed the new expungement law . The new expungement law did not change the status of expungements prior to July 1, 2012. One can still get dismissals , retirements , not guilty verdicts and diversions expunged . The new law merely expands those eligible for expungement . Here is a article that may be helpful to those needing more information on the new expungement law.

Again , we welcome all comments posted to the blog.

I know it is shocking but there are some people that are guilty as charged. The criminal justice system cannot afford to put everybody in prison. So , the Tennessee Legislature created alternative sentencing that allows the judge to not send a person convicted of a crime to jail in certain circumstances. The most typical form of alternative sentencing is probation.

Once someone gets on probation , they invariably want to get off probation . I often get asked " Can I terminate my probation". The answer is no. Under T.C.A. 40-35-308 , the criminal court does not have the legal authority to terminate one’s probation . However , the court has the power to release a person from supervision from a probation officer.

I recently filed a motion to release a person from supervision. First , a motion must be filed. A hearing will be set. Then, the court will decide to grant unsupervised probation. Here are a few tips before you ask the court to end probation supervision;

  1. Have all your court costs and fines paid .
  2. Get a letter from your probation officer that they agree with the probation being transferred to unsupervised.
  3. Be able to pass a drug screen if the court orders one on the day of your hearing.

In the case  I recently handled the motion was granted and the probation is now  unsupervised.

 

 

Certain criminal convictions can be used to attack the credibility of witnesses during trial. It is commonly referred to a impeachment evidence. In some trials , it is who the judge or jury believes that makes the difference. In many cases such as a domestic violence charge, no one witnesses the alleged charge except the parties.

Last week , I tried a domestic violence case in Davidson County General Sessions Court where the entire case was based on the credibility of the witnesses. One of the key witnesses for the government had a criminal conviction for thief which is a crime of dishonesty . A theft conviction can be used to attack the credibility of a witness.

The procedure is governed by Rule 609 of the Tennessee Rules of Evidence. The general rule is the crime must be punishable by death or imprisonment in excess of on year (felony) under the law which the witness was convicted or , if not so punishable , the crime must have involved a dishonesty or a false statement.

The lesson is to  run a criminal background check on all witnesses.  it is great trial theater when the witness either admits to thief or denies it when you have a certified copy of the conviction if they deny the conviction.

In this case , the witness admitted the theft . Credibility was on the table . Result not guilty. So the teaching point is to run the records of both side’s witnesses . Have the rule ready .  Be prepared to win and be prepared to argue the rule.

Thanks to our superb receptionist Amber , she gave me the heads up on a news flash in DUI enforcement in Nashville over the Fourth of July holiday. Tennessee has adopted a no refusal holiday in drunk driving cases in several Tennessee counties including Maury and Davidson Counties. The concept of a no refusal weekend is have the police obtain a search warrant in all driving under the influence (DUI) cases. In Tennessee , an accused has a right to refuse a breath or blood alcohol test if suspected or drunk driving.  Once a citizen is arrested for DUI and refuses , the police would get a search warrant to take a blood sample.

Here is the possible scenario. DUI roadblock is set up. A citizen gets stopped at a DUI roadblock and the officers smell alcohol. Field Sobriety Tests are conducted and a DUI arrest is made. A refusal to submit to a breath or blood test is made.It is refused. A judge would be close by or available to review a search warrant and issue the search warrant. The blood is then taken over the accused’s consent.

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