Recently ,we had a comment posted on Nashville Criminal Law Report on  whether a phone call was enough evidence to support a charge of reckless endangerment in Tennessee.It depends. One element of reckless endangerment is whether the conduct places a person in imminent danger.

 

In the example of a phone call , there can be several different factors.

  • Where was the phone call made ?
  • Distance from the caller to the person.
  • What were the comments made on the call ?
  • Was a weapon used or mentioned in the phone call ?

For the threat of bodily injury to be imminent, the person must be placed in a reasonable probability of danger as opposed to a mere possibility of danger.

To support a conviction for felony reckless endangerment  , there must be proof of of the use of a deadly weapon.

I would like the thank the commenter for his question and I welcome all comments.I will try to answer the comments if possible.Remember this is not legal advice but merely commentary.If you have more questions please consult your lawyer. If you need a consultation for a case in Nashville or the Middle Tennessee area you can contact our office.

 

It saddens me to report most DUI lawyers in Nashville, Tennessee have no clue as to the new DUI laws in Tennessee. The 2010 Tennessee State Legislature enacted several tough DUI laws. I have been been posting blog posts on the topic .I was asked to present a talk on the subject by the Tennessee Bar Association.The Tennessee Association of Criminal Defense Lawyers sponsored a DUI training session where Sara Compher-Rice provided an excellent summary of the laws. I presented the new laws to a gathering of lawyers this month.Yet,lawyers have been asking me daily on the new DUI laws.

What does it take to be a great criminal attorney ?

Read and study the law and especially the new laws. It’s a crying shame that the new laws came into effect and they are just now learning a client can’t get bond on a DUI second offense.In Nashville , the General Sessions review docket is the answer. However , you have to hire a lawyer ASAP to get on the case.If you need help for a loved on with a DUI in Nashville or Middle Tennessee, send me an email Rob@RobMcKinneylaw.com

One last thought.If you are thinking about hiring a DUI lawyer ,ask them this question.How will the new Tennessee’s new drunk driving laws(DUI) impact my case ? I am curious to know their answer.

Brown's Diner on Urbanspoon 

                                        

Brown’s Diner is still the gold standard for Nashville cheeseburgers along with Rotiers.Browns started business in 1931 in an old trailer.I still eat in the old part with Terry the daytime bartender and Gordie on the weekends .It is old Nashville at it’s finest.

On to the burgers , the hamburger is served with mustard as the condiment,Cheeseburger has mayo. I wonder why the difference.The cheeseburger at Browns is fresh beef.Pattied out to perfection.Served with chopped lettuce , onion either raw or grilled, mayo,tomato,and pickle. Browns burger is different from the Hermitage Cafe burger in the beef is the focus of the burger ,In Hermitage’s cafe Burger , the cheese overpowers the beef . Also, browns is not as greasy as the Hermitage Burger,Ton of flavor and just the right size makes the Brown’s Diner burger take first place so far.The icy cold mug of Bud to chase it down added a delightful upside.

The vibe also gives Browns an edge.Regulars make the difference with some great conversation at the bar.Long time bartenders are a plus as well.You owe to yourself to try a Browns burger here in Nashville.

Browns gets five stars out of five.

                                   

Timothy Rush posted on his Facebook page about  the alcohol he was drinking at Anchor High Marina in Hendersonville, Tennessee.Rush even invited his " friends" to stop by for a drink.Later , he he left and killed Calvin Miller Jr. Rush’s blood alcohol level was .13 % .

Members of the Hendersonville Police Department recovered his Facebook post and intended to introduce the post as evidence.Rush pled guilty of vehicular homicide and received a10 year sentence. The reports do not indicate how Hendersonville Police obtained the Facebook posting.

The Rush case is yet another example of the use of social media in criminal prosecutions in Tennessee.One question was how the Facebook posting was recovered.I would suggest not posting photos of you drinking , statements of excessive alcohol consumption.If you are under 21.  law enforcement in Williamson county have been known to surf your facebook or MySpace to gather evidence in under age alcohol consumption cases.

Warning.If you post information, expect the world to see it one day.

I recently wrote an article on defending a vehicular homicide case in Tennessee.It is posted on my website www.McKinneylawfirm.com

 

                                   

I had my first experience dealing with Tennessee’s new bail bond law for those accused of DUI second , DUI third, and felony DUI offenses. The new law may keep those accused of these crimes from being released on bond.In Nashville,Tn., once a person is arrested and can’t make bond their case is placed on the review docket .The review docket is usually held in courtroom 3C in the A.A. Birch Building.We filed a motion to set bond.The court granted the bond and released my client with the condition that he have an ignition interlock device installed.

I expect a lot more in the coming weeks on this issue.I am of the opinion this law will be challenged on constitutional grounds.

Hermitage Cafe on Urbanspoon

 

                                   

 

 

One last thing.If anyone has a suggestion for my next Nashville cheeseburger review,please post your suggestion in the comment section of the blog.You can even suggest your own place.

 

Most folks New Year resolutions include a good diet and more exercise.Mine was to find the best cheeseburger in Nashville , Tennessee. I stared my search this week.The criteria for the judging is taste, presentation, and the vibe of the restaurant.I will be posting the reviews though out the year.

The Hermitage Cafe is a Nashville institution.It’s mainly known for late night and early morning breakfast fare.However, it has a great cheeseburger on the menu.I ordered the double cheeseburger . It’s a great bargain at $4.50. The double cheeseburger comes with two beef patties that had been frozen.It comes on a regular bun with mayo,onions,tomato,iceberg lettuce, and pickles.

I sat at the bar and was ready to get started.The burger was hot off the grill.My first bite was juicy and it oozed with cheese.The burger had two slices of American cheese which was great.It was a great all American hamburger.

The atmosphere is eclectic and the folks that eat are from all walks of life.Disclousure.I eat breakfast there on most mornings before I trudge off to the criminal courts in Nashville and beyond. You can even find my picture on the wall with my regular breakfast companions.

I give it four out of five stars.Next week Brown’s Diner.

 

 

 

Here is a Tennessee sex crime frequently asked question.What is Aggravated Statutory Rape ?

Aggravated Statutory Rape is the unlawful sexual penetration of a victim by the defendant , or of the defendant by the victim when the victim is at least thirteen (13) but less than eighteen (18) years of age and the defendant is at least ten (10) years older than the victim.

Aggravated statutory rape is a Class D felony which carries a full range of punishment of 2-12 years in jail.If one is convicted of aggravated statutory rape , it requires you to be place on the Tennessee sex offender registry.A complete version of the Tennessee sex offender laws can be found here.

                                                  

As the use of new technology and gadgets increase daily, so does unlawful searches of those devices.Warrantless searches conducted outside the judicial process , without prior approval by a judge or magistrate are per se unreasonable.There are some well defined exceptions to the Fourth amendment’s warrant requirement.One of those exceptions is a search incident to a lawful arrest.

Cell phones did not exist when the exclusionary rule came into criminal law jurisprudence.Now most people use a cell instead of a land line and smart phones have all sorts of data and uses. Cell phones may even have data of criminal activity.Recently, the Supreme Court of California in People v.Diaz have addressed the issue of a warrantless search of the text message folder of a cell phone.

The California Supreme Court applied the basic exception that a search incident to a lawful arrest is valid under the Fourth Amendment of the U.S.Constitution.The Court relied on a old case where the police found some heroin in a cigarette pack.It is entirely different to a cell phone.Phone numbers, emails,texts are now commonly stored in a cell phone.A smart phone has more computing power than the computers that ran the Apollo moon mission.The Court went further and found that the cell phone was immediately associated with the defendant’s person.The Court got this one wrong.Right now , a  Michigan man is being prosecuted for hacking into his wife’s email to discover her adultery.He is facing 5 years in prison.Please tell me the difference.Cell phones are private property.

In Tennessee, we might have a different result in that the Tennessee Constitution gives a broader protection under the search and seizure law.A few key points:

  1. There may have been a different result if the cell phone had a password.
  2. IPhones have a slide to unlock.Does the lock give greater expectation of privacy.

I predict this case is just the beginning of  aggressive searches of cell phones in Tennessee.

 

                                 

Lindsay Lohan was released early from the Betty Ford  Center after a 90 day stint in  rehab.Lohan has had major difficulty with her probation and repeated problems with alcohol.I wish her the best  in her recovery. However, Ms. Lohan’s problems illustrate some issues that arise in Tennessee drunk driving cases (DUI).

One question frequently asked question is whether one should go to rehab after they have been arrested for DUI.Will it help my case ? Can I get jail credit for time I spend in alcohol treatment ? Well the bottom line answer is maybe.  

If you were convicted of a DUI second offense charge in Tennessee , you can get up to 28 days jail credit for inpatient alcohol or substance abuse treatment.Warning.Some jurisdictions will not allow jail credit prejudgment..So you go to alcohol treatment before you settle the case. Some District Attorneys will not give you credit.Tennessee case law supports their position.However , Davidson County DUI prosecutors are more enlightened and will normally give credit for inpatient treatment. I think this is the better course in that it encourages those to seek help for a substance abuse problem.

One other lesson to learn from Ms. Lohan is to follow the rules of probation to the letter. From my limited knowledge of the case, she did everything possible to violate her probation.If you violate your DUI probation , it is possible the entire sentence will be served.

Warning before you check in to rehab consult with your DUI lawyer.

                                                   

A traffic stop on a Tennessee interstate or highway may lead to the following questions being asked of you.

  • You’re not carrying any weapons , drugs or dead bodies are you ?
  • You’re not from around here are you ?
  • You wouldn’t mind if we searched your car , then would you ?

Can you refuse giving consent to search your car in Tennessee ? Yes.

What happens if you consent to a search and the police find drugs , money ,or guns.Then, you have some problems.

First,  mere questioning or a request for consent is neither a search or seizure , so the Fourth Amendment is not implicated. Secondly, the length of detention should last no longer than is necessary to effectuate the purpose of the traffic stop.

There are two ways to fight a consent search.

  1. Was the consent to search given voluntarily ?
  2. Did the search exceed the consent that was given.

The  Constitution is a powerful right given to all citizens.Please don’t ignore it.