One way to avoid a drunk driving arrest on New Year’s Eve is to call  sober ride.The 26th annual Sober Ride Project begins at 10:00 P.M. and lasts until 2:A.M. on New Year’s Eve.Each year about 150 Davidson County Sheriff’s Office  employees will give up their New Year to provide safe and sober rides.Sheriff Darren Hall provides a great service to the community.

Here’s how to arrange a ride;

  • Call 862-RIDE or 862-7433
  • Go to one of two bus stops set up for the rides.The corner of Second Avenue and Commerce Street or near the Music City Star train station on First Avenue.

Have a Happy and Safe New Years.

 

                                            

Today , I had a case in the General Sessions Court for Maury County Tennessee at Mount Pleasant. I had a client that was charged  by the Spring Hill , Tennessee Police Department for theft , shoplifting , simple possession of marijuana , and felony evading arrest.As I was driving down , I was thinking did the court have jurisdiction of the case since it happened in Spring Hill,Tn.?

After I got to the court house and spoke with the Assistant District Attorney and the police officer.I  asked the question of venue.Venue is simply where the crime occurred.Spring Hill , Tennessee straddles the county lines of Maury and Williamson County.If the crime happens on the Williamson County side, the defendant is taken to Franklin, Tennessee for prosecution.Now here is the tricky part. The Spring Hill Police Department brings all of there cases to the General sessions Court in Mount Pleasant , Tennessee if the crime occurred in Maury County. Why ? First , it is a smaller court and the police officers get out earlier.Secondly , it is the position of the state that the court has concurrent jurisdiction of any case that happens in Maury County.

I can’t say I blame the Spring Hill Police.The court was friendly .The clerks and the probation officers were helpful and my client got a favorable plea bargain.

                                      

After a little holiday break , The McKinney Law Offices  is  back to work. Today’s post  is based upon  The Tennessee Supreme Court’s  clarification of the crime of tampering with evidence. Under Tennessee criminal law , tampering with evidence is a felony.

Here’s what the State of Tennessee has to prove in a tampering with evidence case ;

  1. It must be an ongoing investigation that the defendant knows about.
  2. The accused must alter , destroy or conceal a record , documents or thing.
  3. The accused tampered with the record , document , or thing in order to impair it’s use as evidence in order to impair it’s use of evidence in the investigation.

In  State of Tennessee v. Majors , The Tennessee Supreme Court  ruled  the government is not required to prove beyond a reasonable doubt the specific identity of the thing that the accused has altered , destroyed, or concealed.The state must establish beyond a reasonable doubt that the accused tampered with some "thing."

One recent development in tampering with evidence charges is it is being included during the presentment to the Grand Jury phase of the case in Williamson County drunk driving (DUI) cases. It is my theory that the felony is being added in some cases in an attempt to force a plea bargain to the DUI charge in order to avoid a felony conviction..

If you have any questions about tampering with evidence charges, please post your question in the comment section. I will answer your questions directly to your posted comment..

                                         

This could be one of the severe effects of alcohol on the human body.However , I ran across a chart which spells out the effects of alcohol on the human body.

Progressive effects of alcohol
BAC (% by vol.) Behavior Impairment
0.010–0.029
  • Average individual appears
    normal
  • Subtle effects that can be
    detected with special tests
0.030–0.059
  • Mild euphoria
  • Sense of well-being
  • Relaxation
  • Joyousness
  • Talkativeness
  • Decreased inhibition
  • Concentration
0.06–0.10
  • Reasoning
  • Depth perception
  • Peripheral vision
  • Glare recovery
0.11–0.20
  • Over-expression
  • Emotional swings
  • Angriness or sadness
  • Boisterousness
  • SuperHuman Feeling
  • Decreased Libido
  • Reflexes
  • Reaction time
  • Gross motor control
  • Staggering
  • Slurred speech
0.21–0.29
  • Stupor
  • Loss of understanding
  • Impaired sensations
  • Severe motor impairment
  • Loss of consciousness
  • Memory
0.30–0.39
≥0.40
  • General lack of behavior
  • Unconsciousness
  • Death
  • Breathing
  • Heart rate
  •  
  •  

Under Tennessee’s drunk driving laws , the blood alcohol is .08 blood alcohol concentration.If you have a blood alcohol test of .08 or higher you can be found guilty of DUI.

Seattle Trial lawyer Paul Luvera wrote an excellent post on his thoughts of being a plaintiff’s lawyer. I thought his commentary applies to criminal defense lawyers as well.Here is his two points and with some of his observations ;

  1.  We must be willing to fight for what we know to be right.

Criminal defense lawyers must be willing to fight the fight for the clients. We must defend the Constitution in every case or watch it be eroded with each opinion from an activist court.

Our 26th President, Theodore Roosevelt gave a famous speech at the Sorbonne in Paris April 23, 1910 which became known as the "the man in the arena" speech. He told the audience:

 

"It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes up short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat"

2. We must have dogged determination in the face of adversity

The key to achieving success for our clients lies in overcoming adversity with dogged determination. Calvin Coolidge was the 30th President of the United States. He once wrote:

"Nothing in the world can take the place of persistence. Talent will not; nothing is more common then unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world is full of educated derelicts. Persistence and determination alone are omnipotent. The slogan "press on" has solved and always will solve the problems of the human race"

 

 

 

 

 

 

 

 

Continue Reading Thoughts About Our Role As A Criminal Defense Lawyer

Jill Cecil Wiersma  reported on the rise of domestic violence cases in Williamson County , Tennessee.Here’s the data;

  • Spring Hill , Tn. Police report over 189 verbal or physical assaults this year.Domestic violence charges are the number one crime surpassing auto burglary.
  • Brentwood ,Tn Police report 45 domestic violence charges.
  • Franklin , Tn. Police department report 202 year to date domestic violence  reports.

Spring Hill Police Lt. Justin Hill states that neighbors report loud noise that police then investigate.Brentwood,Tn. Police Captain Tommy Walsh advised that the larger yards preclude neighbors from hearing any domestic fights and the calls come from inside the home.

Do the police have a right to come into your home based solely on a neighbors complaint of loud noise ? Probably not.

Article I, Section 7 of the Tennessee Constitution provides ;

 

 

That the people shall be secure in their persons, houses, papers

and possessions, from unreasonable searches and seizures; and that general

warrants, whereby an officer may be commanded to search suspected places,

without evidence of the fact committed, or to seize any person or persons not

named, whose offenses are not particularly described and supported by evidence,

are dangerous to liberty and ought not be granted.

 

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Felix Booker had a body cavity search that tests the limits of search and seizure law.  Mr Booker was lying naked on a gurney, breathing out of a tube, and medically paralyzed while a medical doctor searched his rectum.  Mr. Booker was stopped in a routine traffic stop and arrested. Oak Ridge Police suspected cocaine was hidden in his body, so they took him to an emergency room for a body cavity search.  Dr. Michael LaPaglia ordered a cocktail of drugs to paralyze Mr. Booker.  He had to be placed on a breathing machine during the procedure.  The search revealed Mr. Booker had 10.2 grams of crack cocaine hidden in his rectum.  Mr.Booker was hauled off to jail once he woke up and is now facing federal drug charges in U.S. District Court.  Mr. Booker’s lawyer, Bob Jolley, has asked the court to suppress the evidence from the body cavity search.

Here’s the key point.  Tennessee has a specfic statute on body cavity searches.  The Oak Ridge Police might have requested a federal prosecution to avoid Tennessee’s safeguards on body cavity searches.

Here is Tennessee’s law on body cavity searches:

Chapter 7. Arrest

Right-click here to download pictures. To help protect your privacy, Outlook prevented automatic download of this picture from the Internet. Part 1. General Provisions (Refs & Annos)
Right-click here to download pictures. To help protect your privacy, Outlook prevented automatic download of this picture from the Internet. § 40-7-121. Searches and seizures; body cavities
 

 

 
 
(a) As used in this section, unless the context otherwise requires, “body cavity search” means an inspection, probing or examination of the inside of a person’s anus, vagina or genitals for the purpose of determining whether the person is concealing evidence of a criminal offense, a weapon, a controlled substance or other contraband.
 

 

 
 
 
 
(b) No person shall be subjected to a body cavity search by a law enforcement officer or by another person acting under the direction, supervision or authority of a law enforcement officer unless the search is conducted pursuant to a search warrant issued in accordance with Rule 41 of the Tennessee Rules of Criminal Procedure.
 

 

 
 
 
(c) The issue of whether a person subjected to a body cavity search consented to the search is irrelevant and shall not be considered in determining whether the search was a valid one under the provisions of this section, unless the consent is in writing on a preprinted form and contains the following language:
 

 

 
 
 
 
 
Waiver of Warrant Requirement and Consent to Search Body Cavities
 

 

I knowingly and voluntarily consent to have my body cavities searched immediately by law enforcement personnel in the manner provided by the laws of Tennessee. By signing this consent form, I knowingly and voluntarily waive my right to require that a warrant be obtained from an appropriate judge or magistrate before my body cavities are searched.
 

 

 
 
 
I understand that a body cavity search may involve both visual and physical probing into my genitals and anus.
 

 

 
I understand that I would not be prejudiced or penalized by declining to give my consent to be searched in this manner.
 

 

 
(d) Nothing in this section shall be construed as amending or altering the relevant statutory and common law with regard to strip searches that do not meet the definition of a “body cavity search.”
 

 

 
(e) The provisions of this section shall not apply to a body cavity search conducted pursuant to a written jail or prison security procedures policy if the policy requires such a search at the time it was conducted.
 

 

 
(f) A law enforcement officer who conducts or causes to be conducted a body cavity search in violation of this section, and the governmental entity employing that officer, shall be subject to a civil cause of action as now provided by law.
 

 

 
(g) Body cavity searches conducted pursuant to this section must be performed by a licensed physician or a licensed nurse.
 

 

 
(h) No physician, registered nurse, or licensed practical nurse, acting at the written request of a law enforcement officer with a search warrant, written waiver or consent to perform a body cavity search, shall incur any civil or criminal liability as a result of the search or examination, except for any damages or criminal liability that may result from the negligence, gross negligence, willful misconduct or unlawful conduct of the person conducting the examination or search. Neither the hospital nor other employer of health care professionals, acting at the written request of a law enforcement officer with a search warrant, written waiver or consent to perform a body cavity search, shall incur any civil or criminal liability, except for negligence, gross negligence, willful misconduct or unlawful conduct, as a result of the act of examination or search.

I hope the Judge enters an order suppressing the search.  Based upon what has been reported by the news media, it appears this seach of Mr. Booker’s body is outside all bounds of the Fourth Amendment of the U.S. Constitution’s prohibition against illegal searches.

                                      

Can you consent to a police search of your car or home under Tennessee law.The answer is yes.

Consent is a well recognized exception to the search warrant requirements of both Article I section 7 of the Tennessee Constitution and the Fourth Amendment of the United States Constitution. The key is a valid consent to search eliminates the police officer’s need to obtain a search warrant and the need for probable cause.

The question then becomes was the consent voluntary.For a consent search to be valid , the consent must be unequivocal,specific,intelligently given and uncontaminated by duress or coercion.The burden of proof is on the government to show the consent was voluntarily given.

My gentile reminder is please do not consent to a search at anytime.

                                       

My trial tip of the day is to have a single or limited theory of the case. In a drunk driving (DUI) case , there are many defense theories that may be available.Pick the strongest and stay with it. Here is an example.Today , I had a case where there were two key issues.The strongest point was the issue of physical control of an automobile.So  instead of fighting the high breath test, I  focused on whether the client was in physical control of the car.By the way , my commentary on the physical control rule under Tennessee law is that it needs improvement.Under Tennessee law we are punishing a driver who decided they shouldn’t drive by sleeping in the car then arresting them.

If it is a breath test case and your defense is acid reflux , talk about acid reflux and that a breath test machine may read the result in error.If it is a disconnect case , talk about that the physical manifestations not equaling the blood alcohol test.Pick the defense and show how the facts fit in that single category.A shot gun is a good weapon to shoot ducks , quail and friends of Dick Cheney.It is not a good weapon to attack a DUI case.You need a laser focus.

 

                                             

When does your Miranda rights become effective ?.The general rule is that once you are placed into custody you Miranda rights against self incrimination  begin.Custody is usually defined as once you have been placed under formal arrest. However , custody is not always a black and white issue.

The Tennessee Supreme Court has listed a non-exclusive set of factors to determine if a suspect is in custody.

  1. The time and location of the interrogation;
  2. The duration and character of the questioning;
  3. The officers tone of voice and demeanor;
  4. The number of police officers present;
  5. The manner of transportation to the place of questioning;
  6. Any limitation of movement or other form of restraint;
  7. Any interactions between the officer and the suspect:
  8. The extent to which the suspect is confronted with guilt or evidence of guilt;
  9. The extent that the defendant is made aware of the fact the defendant is free to refrain from answering questions;

Today , we used a violation of my client’s Miranda rights in a suppression motion .Client facing 25-40 years as a Range II offender in a drug free school zone case.Case plea bargained to 5 years probation.Be on the lookout for any Miranda violation. I just hope the U.S. Supreme Court does not erode the bedrock constitutional protections that Miranda provides.