The image above is a lab tech sorting blood alcohol samples into a rack.  I now know why that’s important due to a class I took last year. DUI lawyer Justin McShane posted an article about the details of the class on gas chromatography on his blog. The point that Mr. McShane makes is that great DUI lawyers need to understand the ins and outs of forensic science. All too often we as criminal defense attorneys look at a one page blood alcohol report and cringe with fear.Thanks to the class that Mr.McShane started. Criminal defense lawyers don’t need to cower.

The link to the article lays out the agenda of the program. Attorney Machine teaches the program with real live scientists and attorney Josh Lee. . Today’s post is to thank him , Josh and the teaching staff for providing a great learning experience.

Disclaimer . I graduated from the course last June . I wish I would have paid more attention in science class in my younger days. So do the lab techs. Just ask one of them to explain Van Deemter’s curve.

On January 1 , 2012 a new DUI law comes into effect in Tennessee.  Tennessee Code Annotated 55-10-406(f) expands the circumstances in which a Tennessee law enforcement officer can require a blood alcohol test without the consent of the accused. Tennessee law will allow an officer to require a chemical test to determine the accused’s blood alcohol level when the officer has probable cause to believe the motorist has committed a violation of DUI , vehicular homicide by intoxication or aggravated vehicular homicide , and

  1. The suspect was involved in an accident causing injury or death to another ;
  2. The suspect has previously been convicted of DUI , Vehicular Homicide by Intoxication or Aggravated Vehicular Assault ; or
  3. The suspect has a passenger in the car who is a child under the age of 16.

 

Knoxville DUI attorney Steve Oberman has commented on the new law. Here is some of his points. First , the new law does not include any look back period. In Tennessee the state can look back ten years in your history to see if you have a prior DUI conviction in order to try you as a DUI second offender. In the new law , there is no look back period so the police could force a blood draw on a DUI conviction that happened over 20 years ago. Secondly , the new DUI law is specific to Tennessee DUI convictions because it lists the corresponding code sections. So , an out of state conviction may not be used to compel a chemical test. I anticipate this issue will see some litigation.

No one is in favor of drunk driving . Yet the dilemma that is facing Tennesseans is enacting laws that can be applied fairly. How do we as a society balance our constitutional protections ?  How do we deal with the arbitrary laws that are penal  in nature to those charged with a particular crime ?

Well if you are facing these types of charges you must stand your ground . Decide if you want to accept your fate or decide whether the courts will let this arbitrary set of laws be enforced .

An old college friend send me a message the other day. She had an important question for me . How could I represent criminals if I knew they were guilty ?  It didn’t take me long to come up with an answer . All of God’s children need help. Sometimes they go astray , are  lead astray , or are just wired wrong. Sometimes I represent those that are guilty but are overcharged in their cases by the government to force the accused to accept a plea bargain agreement. Sometimes they need help for defending them during the sentencing phase of the case . The most important part is the oath that criminal defense lawyers take to defend their clients zealously and to defend the Sixth Amendment of the Constitution.

 

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

 

 

 

Continue Reading The Duty of a Criminal Defense Lawyer

While I was in General Sessions Court in Cheatham County this week , I learned of the District Attorney’s new procedure on handling the implied consent component of a Tennessee DUI charge. If a citizen exercises their right to refuse to submit to a breath or blood alcohol test after a police officer has reasonable suspicion to believe one is driving under the influence of alcohol .,  the officer also charges you for a violation of the implied consent charge. For those arrested by the Ashland City Police Department , the Cheatham County Sheriff’s Office or the Tennessee Highway Patrol , expect to have a hearing on your first court appearance. In Cheatham County criminal cases , the first court date is an arraignment date . An arraignment date in Cheatham County General Sessions is usually just to enter a plea of guilty or not guilty then it is reset to the arresting officers first court.

Tennessee’s law on the timing of the implied consent charge changed recently. Under T.C.A. 55-10-406(a)(4)(A) , a determination of the implied consent violation shall be made at the driver’s first appearance or the preliminary hearing in the general sessions court, but no later than the case being bound over to the grand jury. If they force you to have a hearing unprepared , you will probally lose your license while fighting your DUI case.

So what is the solution. Hire a experienced DUI attorney. Fight the case from the beginning. If the officer is not there at the first court date , move to dismiss the violation. Appeal it. There are other ways as well. Fight fire with fire. 

 

Jerry Sandusky’s lawyer waived his right to a preliminary hearing in his sex abuse case. As I was leaving for court today , Ann Curry asked Joe Amendola if he was competent to handle these sex abuse allegations. Ms. Curry asked a hard question that most criminal defense attorneys are asking. What is Mr. Amendola thinking in preparing his defense ? Maybe he is thinking that this is his 15 minutes of fame and he wants to appear with Bob Costas and on the Today show. From my perspective it appears every move that has been made is the wrong move.

First , Mr Amendola waived the preliminary hearing.. A preliminary hearing is a great tool to hear what the witnesses are going to say . It might be a criminal defense attorneys only opportunity to question them on the record . The purpose of a preliminary hearing is set out in this video. In the Curry interview , Amendola states he waived it because he did not want his client’s bail bond revoked. I understand that tactical decision , but sometimes it is more important to discover the facts in the case . Granted , I am not familiar with Pennsylvania criminal laws , but under Tennessee criminal laws a motion must be file giving the defense written notice at least five days before a bond revocation hearing. In Nashville , Tennessee child sex crime cases the District Attorney’s office seeks a direct presentment in order to avoid a preliminary hearing. Waiving the hearing did not make sense to me.

Second , I do not understand Mr. Amendola’s decision to allow Mr. Sandusky to give repeated interviews to the press. Years ago in Nashville , Perry March was under investigation for murdering his wife and he gave repeated interviews with the press. Now , Mr. March is behind bars. It appears that Mr. Sandusky is digging himself a hole where he will not be able to climb out. The U.s. Constitution gives you a right to remain silent . I suggest they use it.

For those facing a Tennessee sex crimes case or defending one , here is my thoughts :

  • Never let your client speak to anyone about the facts of the case. this means the police , the press or even your family. I would suggest they speak to no one about the case.
  • Never waive a preliminary hearing unless you get something concrete in exchange for waiving such a critical part of the case.

I see lawyers everyday waive the preliminary hearing . I still don’t understand it. Mr. Amendola waiver just drove the point home in a high profile sex crimes case.

 

 

Drug Testing in the criminal justice system is currently a hot topic . My last post was on drug testing for Tennessee judges.  Last week Michigan criminal defense lawyer Scott Millard was jailed when he stood up to a judge about asking his client to take a drug test .  I learned about the show down last week from Keeley Heath who practices with Mr. Millard . Mr. Millard spend four hours in lockup defending his client. Simple Justice posted part of the transcript of the hearing right before the hammer went down.Here is the exchange :

 

JUDGE POST: (to the defendant) When they give you a drug test today, are you going to be clean or dirty?

MILLARD: (My client) is going to stand mute to that question, your honor.

POST:  He’s not going to stand mute. He’s either going to answer the question or I’m going to remand him to jail.

MILLARD: Your honor –

POST: You can have a seat.

MILLARD: Your honor, I’m –

POST: Sit down.

MILLARD: I’m Counsel, your honor.

POST: I’m encouraged. Both of you sit down.

MILLARD: I’m his attorney, your honor.

POST: I’m encouraged.

MILLARD: (My client) has a 5th Amendment right.

POST: Counsel, I’m setting bond. There’s two ways we can do this. I can give him 30 days from the date that he last used to be clean, or I’ll remand him to jail until such time as he’s clean and then we’ll go from there.

MILLARD: And I –

POST: Would you please be quiet? I really appreciate that. Thank you.

MILLARD: I apologize.

POST: (to the defendant) When was the last time that you used controlled substances? Let me have the date please.

MILLARD: Your honor, (my client) has a 5th Amendment –

POST: I’m not charging him with using controlled substance, Counsel. He’s not charged with that charge. I’m interested in getting a clean, honest bond response. Now, if you don’t want to do that, you can leave. Your call.

MILLARD: (My client) has a 6th Amendment right to assist, effective assistance of counsel.

POST: That’s right. And that’s not what he’s getting at the moment.

MILLARD: Your honor, I strongly disagree with that.

POST: I’m glad.

MILLARD: I’ve been nothing but respectful and I will always be respectful to the bench.

POST: Then would you please let him answer my questions?

MILLARD: (My client) has a 5th Amendment right not to make admissions, and, your honor, the manner in which this proceeding is being conducted, strongly has the, at least I’m getting the sense that it threatens to tread on that 5th Amendment right.

The judge and the attorney went back and forth for a bit on the 5th Amendment, the court’s ability to order drug testing and the attorney’s suggestion to set a date for his client to take a drug test. Then —

POST:  I’m not interested in what you think. Haven’t you gotten that yet?

MILLARD: I have gotten that, and I… understand that, and your honor, the court fully, certainly has the right to not care what I say. How —

POST: Thank you. Then be quiet. … (Then, to the defendant) When was the last time that you, the date that you last used controlled substances, sir?

Millard interrupted and stopped his client from answering.

POST: One more word, and I’m going to hold you in contempt 

 When  I read the first post of Mr. Millard predicament up to the judge , I was proud that a criminal defense lawyer would stand up to the judge ordering a drug test on someone.Tennessee State Legislators spoke about requiring judges to take them in Tennessee . Now , the wholesale practice of the use of drug tests are startling. Now , once one is on probation your constitutional rights are limited. Taking a drug test before a sentencing hearing to help make your case for probation is fine by me. Other than that " Just say no to drug testing". Stand up for justice and the rule of law. Way to go Scott.

The fallout from former Knox County Criminal Court Judge Richard Baumgartner continues. Judge Baumgartner presided over some of the most highly publicized murder trials in Knoxville , Tennessee . The only problem was that he was under the influence of painkillers during the trial . Special Judge Kerry Blackwood granted a motion for a new trial in some those cases recently . Judge Baumgartner got the trifecta due to his actions a  resignation , a felony conviction , and disbarment. The family of the victims are now facing another trial after they thought they had closure. The defendants now get another trial due to the court’s misdeeds.

 

Now Tennessee State Legislators are on the attack. At a luncheon this week , State Senator Stacey Campfield suggested that judges should be drug tested . Then , another state legislator suggested that criminal defense lawyers should be drug tested . I wish the state legislators would venture into a Tennessee courtroom and do a little research before they starting popping off about drug testing for judges. Wait a minute . State Representative Curry Todd has been inside the courtroom. I am against any drug testing unless a defendant is on probation.

First , state legislators want the judges drug tested . Then , it is on to the criminal defense lawyers .Why not the police and the district attorneys. I guess we should drug test the jurors. There is one group the state legislators did not want drug tested ; themselves. My suggestion is to drug test the state legislators every day they are on Capital Hill proposing some insane law for some special interest group. The proposal to require drug testing for lawyers is just plain wrong.

As I was reading some of the new laws that were passed last session by the Tennessee State Legislature , I became concerned that  Corrections Corporation of America may be housing sex offenders against Tennessee law. A new addition was added to the Tennessee Sex Offender Registry . Under Tennessee Code Annotated 40-39-211(h) , no person , corporation , or other entity shall knowingly permit three (3) or more sexual offenders …….. violent sexual offenders…….. or a combination thereof …….. to establish a primary or secondary residence in any house , apartment , or other habitation .

I guess the test is whether jail is a residence . All kidding aside , this law could prohibit sex offenders from going to a halfway house , living in a treatment facility , or any type of place where they can live. There is no question that those convicted of sex crimes need some type of supervision. However , the sex offender laws are becoming more severe in their scope. Tennessee runs the risk of driving those on the sex offender registry underground where they will try to avoid some of these restrictions.

I can see a landlord at an apartment house asking on the rental application if you are on the sex offender registry. This law places too much of a burden on businesses . It allows few places where one can live after being released from prison . I guess the bottom line is that the criminal laws of Tennessee should not be used as a political football. More thought and common sense needs to be applied by the state legislators rather than just slapping a new restriction in place for the sole purpose than getting reelected. I would rather Tennessee take a tougher stand on those who fail to report child sexual abuse.

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 I did not realize an iphone had a voice recorder until this summer. If your questioned by police , should you record your conversation with the police. I did a quick check and there does not appear to be any laws in Tennessee  prohibiting a citizen from tape recording their conversations with police officers . However , some states have laws on the books that make it illegal to record or videotape police officers.

Recently , two different courts have ruled that a citizen has a First Amendment right to record their conversations with police officers . I recently tried a case where the video camera was not able to record the arrest and the field sobriety tests. It boiled down to ones word against another. Video or audio recordings are solid evidence. So , feel free to record the conversations of the police officer during a traffic stop or DUI investigations .

 

Shanterrica Madden is on trial for the murder of MTSU basketball star Tina Stewart . Brandon Gee reported on a recent  hearing in The Tennessean . Circuit Court Judge Don Ash follows a novel procedure that allows jurors to ask questions during the trial. Defense attorney Joe Brandon filed a pre-trial motion hoping to persuade the court from using the procedure. I can understand his position . Mr. Brandon may assert a self-defense argument. So , he does not want the jurors asking questions of his client while she is on the stand.

Basically , the jurors would submit written questions anonymously to the trial court . The court would review the questions and exercise  it’s discretion in deciding to submit these questions . Normally , the district attorney and the criminal defense lawyer  ask questions of a witness during a trial.The Tennessee Supreme Court adopted this rule in 2003 , but from my experience this procedure has been seldom used . I am not aware of any Nashville criminal court judge currently using this procedure . Years ago , I tried a case in Williamson County with Judge Harris who tried the process . In my opinion it did not go well because most of the questions tendered were in violation of the rules of evidence. It also slowed the trial down and created too many interruptions of the trial.

I am all in favor of jurors having all the information available to them to decide the case. However , the Tennessee Rules of Evidence gives trial lawyers the rules on questions that can be asked or not. In my experience the questions were not allowed based upon some rule of evidence. What if the juror asks a leading question or did they take a lie detector test .Clearly , the process in this high profile murder case may be bogged down due to juror questioning .It seems to me  the new rules make the courtroom like a reality TV show with the jurors taking a active role.

 

My opinion is to stay true to the traditional courtroom procedure . Our justice system has a lot of problems , but it’s the best one in the world today. I think it is time to abolish this seldom used rule.

I would like to hear your opinion. Should jurors be allowed to ask questions to the witnesses ? Please post your comment .