Who made the field sobriety tests the primary means of detecting driver impairment to alcohol in Tennessee DUI cases ? The answer is your government.Beginning in the 1970’s research studies were sponsored by the National Highway Traffic Safety Administration (NHSTA). NHSTA contracted with the Southern California Research Institute (SCRI) to determine which roadside field sobriety test were the most accurate.The field sobriety tests were designed to be standardized so the tests would be the same in Nashville,Tennessee or Franklin , Tennessee.

There are limitations on the field sobriety tests.Last Sunday most Americans were watching the Super Bowl . Professional athletes who are in tip top shape and train everyday.Where did they perform these football feats. On a perfectly level playing field.The DWI Detection and Standardized Field Sobriety Testing  2006 Manual  requires the Walk-and-Turn test and the One-Leg Stand test be performed on  a reasonably smooth , level surface. If the "tests" aren’t done according to design they provide no information to the court or the jury.Therefore , the field tests should be inadmissible.

Today , I reviewed a case where the field sobriety tests were done outside my office on Second Avenue in Nashville.The slope is tremendous.Based on my personal knowledge , the tests were done almost on a hillside.That test is flawed from the start.

So what does a experienced  DUI lawyer do ? Grab a level.Go to the scene.Fight the test for it’s flawed basis. The image in the post depicts the perfect location for the field tests. It’s inside.

                               

One of the best defenses  to avoid a Tennessee drunk driving conviction is to review the traffic stop. Police must have reasonable suspicion that a traffic offense occurred before a car or truck can be stopped for a traffic violation. The National Highway Traffic  Safety Administration ( NHSTA) has created a list of visual detection clues.One clue is weaving.

Problems in Maintaining Proper Lane Position

Maintaining proper lane position can be a difficult task for an impaired driver. For example, we have all seen vehicles weaving before. Weaving is when the vehicle alternately moves toward one side of the lane and then the other. The pattern of lateral movement can be fairly regular, as one steering correction is closely followed by another. In extreme cases, the vehicle’s wheels even cross the lane lines before a correction is made. You might even observe a vehicle straddling a center or lane line. That is, the vehicle is moving straight ahead with either the right or left tires on the wrong side of the lane line or markers.

WeavingWeaving

San Diego DUI lawyer Rick Mueller wrote  a recent blog post that reviewed several states laws on weaving.However , he didn’t discuss any Tennessee criminal law in his post.

In State of Tennessee v. Binette , the Tennessee Supreme Court held  that weaving is not sufficient grounds to pull a motorist over unless it is a pronounced movement.Bottom line is that weaving as a defense to a traffic stop is on a case by case basis.It also sure helps to have a video of the traffic stop.

Gabby's Burgers & Fries on Urbanspoon

 

 

                                      

Attorney Joshua Brand suggested I try Gabby’s for a cheeseburger in my search for Nashville’s best cheeseburger.Gabby’s is located at 493 Humphreys Street in Nashville,Tn.It brought back great memories because it is in the former Hap Townes site.I could remember the stewed raisins once I entered the doors.On to the burgers.

I walked in and went to counter and ordered the standard cheeseburger.I asked for it the standard way they serve it..First , the bun is made by  Chapiers bakery.You can order it white or whole wheat which is a plus.It came with green leaf lettuce , chopped onion , tomato , pickle..Here is the problem.I didn’t order it the way I liked it but they way they would serve it.The toppings were mustard , mayo , and ketchup.The condiments were way too much and took over the burger. I need to learn on my search to either take the burger as is or customize it to my tastes.My current plan may create some confusion in the tasting process due to my  personal likes and dislikes.

The burger was five ounces of grass fed beef. According to the take out menu grass feed beef is 100 calories less than regular hamburger..There is no hormones or antibiotics.i spoke with the gentleman who ran the counter who I think was the owner who  went to great lengths as to why they went with grass fed beef.I couldn’t taste a difference between grass fed or regular beef.So I vote for health over fat.

The fries were great.I got a special treat by getting a couple of fried sweet potatoes as a bonus for asking a bunch of questions.Gabby’s is a must for a burger and the sweet potato fries.The vibe is an old school hamburger counter from times  gone by.

Solid burger and I enjoyed my visit and the conversation.

Four out of five stars

                                     

Article I Section 9 of the Tennessee Constitution guarantees a person accused of a criminal charge the right to a speedy trial.I recently filed a motion to dismiss in a cold case first degree murder case based upon a denial of his right to a speedy trial.There are four  factors that the criminal courts in Tennessee review in evaluating a speedy trial claim.

  1. the length of the delay;
  2. the reason for the delay;
  3. whether the defendant asserted a claim to the right of a trial;
  4. whether the defendant was prejudiced by the delay.

There is no magic amount of time in the length of delay analysis. A delay of one year triggers a more through review by the trial court.

Reason for the delay usually falls into one of these categories;

  • delay to obtain a tactical advantage ;
  • bureaucratic indifference or neglect ;
  • delay necessary to the fair and effective prosecution of the case ;
  • delay caused or acquiesced by the defense .

The most critical factor of the four is what prejudice did the defendant suffer.Loss of memory and witnesses are just two elements to present to the court.  Impairment to the defense is sometimes hard to prove.

The denial of a right to a speedy trial is just one right that the U.S. or Tennessee Constitution still affords the citizen accused.

 

                              

One of the worst decisions you can make is to try to outrun the police.My tip for the day on how to get along with police on the roadway is to pull over immediately once you see the blue lights.However, some folks get scared and confused and don’t stop as directed. Evading arrest in Tennessee can be a felony.What’s the difference ?

 Felony evading arrest is when one evades arrest using a motor vehicle.Misdemeanor evading arrest is when you just try to intentionally run away by any means of locomotion.The use of a car to flee makes evading arrest a Class E felony.There is one more little kicker.If during the felony evading arrest the flight creates a risk of death or injury to innocent bystanders or other third parties increases the charge to a Class D felony.Also, it carries a loss of your driver’s license.

The takeaway is you can’t win your case on the roadway.Obey the police when they have all the cards.Fight your criminal case where it counts.The courtroom is where you are on equal ground with the police.

 

 

Tennesseans who are convicted of drunk driving (DUI) or implied consent must use the ignition interlock device before starting their car.How would you like to have to blow into a breath alcohol machine before you start your job.The American Bar Association reports that a Maryland judge who was recently convicted of DUI blows into a breathalyzer before court and after he returns from lunch.The test is overseen by law enforcement. It’s a sad commentary that your judge takes a breath before ruling on your case..Should you ask the judge what did you blow before the ruling.Only in America.

The Melrose Neighborhood Pub on Urbanspoon

                                          

As I start week four on the quest to find Nashville’s best cheeseburger , I got my inspiration from a feature from The Nashville Tennessean. I read an article from the paper and  had court in General Sessions Court in Franklin,Tn. So I thought I would stop in for a burger.The bar had a nice feel, decorated well, and I felt at home.I plopped down to the bar.Asked the waitress what the best burger was and ordered.Mistake was mine.This was a deviation from the best burger search because I ordered a specialty burger.

Melrose Pub gets their beef from a local supplier .it’s beef is free from hormones and other bad stuff . After, I ordered I saw all the great fare heading to the tables from my perch on the bar.My mistake was ordering the bleu cheeseburger.Four great main ingredients ,bacon , beef , onions, and bleu cheese combined to make a poor burger.A heavy hand with the bleu cheese crumbles overpowered the rest on the flavors.Taste was all bleu cheese until the last few bites.Bacon cooked perfect.Red onions provided a little vegetable.Beef looked great.Combined..Overwhelming.The bun was steamed from something which lost the taste of the toasted bun.

I am going to give the Melrose Pub another review in the coming weeks just on the cheeseburger.I did learn something.Specialty burgers are not what they might be advertised.You read about the great flavors and anticipate them.However, balance is the key.

I give the bleu cheeseburger at Melrose Pub 1 out of 5 stars.Now if you love the taste of bleu cheese give it a try.

Next week , I hope to have a dining companion who   has asked to join me in my quest. Hint.He is a writer who I hope will improve my poor review writing style.I just hope he can put up with my court schedule.Till next week.If you want to suggest any burger joints, please post them in the comment section of the blog.

 

                              

Sometimes police or law enforcement are mush like the spider.The spider creates the web and hopes it’s prey stumbles into the web where it can’t escape.Some of my clients in drug and patronizing prostitution cases assert they were entrapped into their criminal conduct.However, the defense of entrapment seldom applies.

The Entrapment Defense was first recognized by the U.S.Supreme Court in 1932.It  was not recognized by Tennessee law until 1980.

Here is Tennessee’s jury pattern instruction on entrapment.It is the legal definition of when it is a valid defense.

 

T.P.I. — CRIM. 40.04

DEFENSE:  ENTRAPMENT

            It is a defense to this prosecution that the defendant was the victim of entrapment as to the offense charged.1

            As used in the law, "entrapment" means that law enforcement officials, acting either directly or through an agent, induced or persuaded an otherwise unwilling person to commit an unlawful act.  On the other hand, where a person is predisposed to commit an offense, that is, ready and willing to violate the law, the fact that state officials or their agents merely afforded opportunities for him or her to do so does not constitute entrapment.

            Inducement by law enforcement officials may take many forms including persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship.  A solicitation, request or approach by law enforcement officials to engage in criminal activity, standing alone is not an inducement.  Law enforcement officials are not precluded from utilizing artifice, stealth and stratagem, such as the use of decoys and undercover agents, in order to apprehend persons engaged in criminal activities, provided that they merely afford opportunities or facilities for the commission of the offense(s) by one predisposed or ready to commit it.  [They may properly make use of undercover operations, in which they assume false names and false appearances.  They may properly assume the roles of members of criminal organizations.  They may properly offer to give to the defendant the money which is involved in the commission of the crime itself.  And they may properly instigate the offer of money to the defendant.]

            If you should find from the evidence in this case that before the alleged offense(s) occurred, state officers or their agents did no more than offer the defendant the opportunity to engage in criminal conduct, there is no entrapment.  On the other hand, if you find evidence in this case that the defendant was induced to commit the offense(s) charged, you must go on to consider whether or not the defendant was predisposed to commit the offense(s); that is, whether [he] [she] was ready and willing to commit crimes such as are alleged in the indictment, whenever an opportunity was afforded.

            In determining whether the defendant had a predisposition to commit the crimes charged, you need not find that [he] [she] was involved in any prior offenses or criminal conduct.  Predisposition may be shown in many ways.  The defendant’s predisposition or willingness to commit the crimes charged may be shown by evidence of [his] [her] prior conduct of a similar character or by evidence, direct or circumstantial, that [he] [she] was ready and willing to engage in the illegal conduct in question.  It may be shown by evidence of the defendant’s reputation or character.  In evaluating this matter of predisposition, you should look to the totality of the circumstances involved in the alleged offense(s) with which the defendant is charged.

 

            [If evidence of prior conduct of the defendant which may be criminal is introduced to show [his] [her] predisposition or willingness to commit the alleged offense, you may consider such evidence only in connection with your determination of the defendant’s predisposition or readiness to commit that offense.  It is not evidence that [he] [she] actually committed the crime(s) for which [he] [she] is now on trial.  Moreover, the fact, if it is a fact, that the defendant may have committed prior offenses of a similar character does not by itself require you to conclude that [he] [she] had the predisposition or readiness to commit the offenses with which [he] [she] is now charged.]

            In summary then, if you find no evidence that the state induced the defendant to commit the crime(s) with which [he] [she] is charged here, there can be no entrapment.  On the other hand, if you find some evidence that the defendant was induced to commit the offense(s) with which [he] [she] is charged, you must then go on to consider if the defendant was predisposed to commit such (an) offense(s).  If you find beyond a reasonable doubt that the defendant was predisposed to commit such (an) offense(s), then you should find that the defendant was not a victim of entrapment.  If the evidence in the case leaves you with a reasonable doubt whether the defendant was predisposed to commit the offense(s), then you must find [him] [her] not guilty.

Here is the key point.If there is no inducement, there can be no entrapment.

Twin Kegs on Urbanspoon

                                                  

The third installment of my search for Nashville’s best cheeseburger took me to the "International Famous’ Twin Kegs. I met owner Todd Rossbach who gave me a little history about the place.It became Twin Kegs in 1974.It has been one of Nashville’s best dive bar since the name change.

On to the burgers, I had a regular cheeseburger.It was served on a 4 inch bun and it held 6 ounces of fresh ground beef .Twin Kegs gets their hamburger daily from Osborne’s Grocery Store on Nolensville Road.The bun was lightly toasted on the flat top grill which gave it a little crunch.One slice of American cheese and a slice of Swiss made a great cheese taste without overwhelming the beef.If you really hungry try the Big Bad Burger.served on a 8 inch bun 12 ounces of beef and bacon.

I really liked the grilled bun.It make a nice layer of flavor and texture to the burger.Also, Todd mixes up his own seasoning for the hamburgers.He wouldn’t tell me what it contained , but he did tell me it had a little cayenne pepper for a little Cajun spice.I couldn’t really taste any heat in the seasoning.

The vibe was dive bar classic.The long shuffleboard table completes the bar scene.

Five stars out of five is my rating.

One last thing.A friend of mine of reads the blog for criminal law information asked me why I was writing about cheeseburgers in a criminal defense law blog.It’s boring writing about the law everyday and it’s fun finding Nashville’s best cheeseburger.On to the next cheeseburger next week.