During a DUI traffic stop , the first thing a police officer asks is " Have you had anything to drink tonight ?"  Since we were young we have been taught to cooperate with the police.However, you can’t talk your way out of a drunk driving charge in this day and time.

What’s the correct response ?

  1. Do not admit to drinking.
  2. If the police officer continues to ask the question , ask if you are being investigated for a DUI or under arrest.
  3. Do not admit to any consumption of alcohol at any time of the evening.
  4. Do not admit to drinking certain drinks or the number of beers or drinks
  5. The best answer is" Officer I decline to answer any questions about alcohol."
  6. Ask to speak to your attorney.

The U.S. Constitution gave you a right that you don’t have to answer any questions by the police.Exercise that right.You can’t talk your way out of the DUI.Once an officer gets an answer that you consumed or drank alcohol . probable cause has been established to start a full blown DUI investigation.

Once you make any statements of alcohol use the district attorneys can question you about those statements. An admission of five beers and a couple of shots equals a DUI conviction.

 

https://youtube.com/watch?v=8wKOGeU2bZg%3Ffs%3D1%26hl%3Den_US

Recently , I invited Pennsylvania DUI lawyer Justin McShane to speak at  TACDL’s DUI seminar that I organize.His presentation was lights out.Justin created a video on explaining some critical issues in blood alcohol testing. For any lawyer or person accused of DUI I would highly recommend you watching the video.It shows some problems that may occur in the forensic crime lab.Justin writes a blog about forensic science.The title is www.thetruthaboutforensicscience.com.

A Utah man took some nude pictures of his baby.Some of the photos had him kissing the nude infant.A trip to Walgreen’s brought the police back to his home.Mr. Diaz-Palomino was later cleared of the charges but now faces deportation.Child pornography allegations can’t be ignored even if it was so innocent. If someone posts a nude photo of a baby on Facebook , look out you might be under investigation.

MSNBC.com quotes New York University law professor Amy Adler, who says the days of photographing your kids running naked through the lawn sprinkler may be over.

“What [parents] might think are normal pictures could be seen the wrong way,” she said. “As a legal matter parents should be extremely cautious. I hate that. I think it is a shame.”

Everyone agrees child pornography is a bad thing , but where do we draw the line in what is against the law and merely taking a picture of your baby playing in the tub.I think my mom took some pictures of me like that as a child. The bottom line be careful with these photos.

 

                                            

What is a aggravated vehicular homicide charge in Tennessee ? Most criminal charges have elements or components of what it takes to be convicted. Here is the jury charge of aggravated vehicular homicide ;

T.P.I. — CRIM. 7.11

AGGRAVATED VEHICULAR HOMICIDE

            Members of the Jury, you have found the defendant guilty beyond a reasonable doubt of vehicular homicide as charged in Count _____ of the indictment.

            It is now your duty to determine whether the defendant is guilty of aggravated vehicular homicide as charged in Count _____ of the indictment.  The law provides for increased punishment for aggravated vehicular homicide.1

            Any person who commits the offense of aggravated vehicular homicide is guilty of a crime.

            For you to find the defendant guilty of aggravated vehicular homicide, the state must have proven beyond a reasonable doubt the existence of the following essential elements:2

            (1)(A) that the defendant has two (2) or more prior convictions for driving

                        under the influence of an intoxicant, vehicular assault or any

                        combination of such offenses;

or

                (B)  that the defendant has one (1) or more prior convictions for the offense

                        of vehicular homicide;

or

                 (C)(1)  that there was at the time of the offense twenty-hundredths of one

                             percent (.20%) or more by weight of blood alcohol in the

                             defendant’s blood;

and

                     (2)  that the defendant has one (1) prior conviction for driving under the

                             influence of an intoxicant or vehicular assault.

            “Prior conviction” means an offense for which the defendant was convicted prior to the commission of the instant vehicular homicide and includes convictions under the laws of any other state, government, or country which, if committed in this state, would have constituted vehicular homicide, vehicular assault or driving under the influence of an intoxicant.3

Now here is the key point.The way the charge is worded the case is bifurcated.In a nutshell, the state must first prove you are guilty of vehicular homicide then proceed to prove the prior aggravating convictions.

It appears there will be new efforts to pass a sex offender registry for juveniles in the coming session of the Tennessee State Legislature. The reason for the new law is Washington money.Loss of Federal money is at the heart of the  juvenile sex offender registry. Last session , Tennessee’s version of the juvenile sex offender law did not come up for a vote.Some juvenile judges spoke in opposition to the bill.However , Washington’s money often forces state government to act.If Tennessee does not pass the juvenile sex offender statute, Tennessee would stand to lose 10% of the 11.5 million dollar grant from the federal government. The choice is clear do we brand a child forever as a sex offender who might get treatment or do Tennesseans want a million or two from Uncle Sam.Shouldn’t Tennesseans pass the law they believe helps the most .My bet is we take the money.

Debra Maggart who is sponsoring the bill states it’s not about the money.

"One of the excuses people kept using last year was that we still had time to fix this. Not anymore," said Maggart, who also said she doesn’t think the loss of federal money should be the primary reason for passing the law. "What’s really important is not the money. The most important reason is that it helps Tennessee be a safe place for children and not a haven for sex offenders."

My one fundamental thought is the Tennessee State Legislature should consider the proof element in all sex crimes in Tennessee.Right now anyone can allege a rape.Sex offenses are brought without any corroborating evidence in many Tennessee counties.It then becomes a credibility contest between the accuser and the accused. The state should require some sort of corroborative evidence to support a conviction.

Rehabilitation , lifetime punishment or adding another level of proof to prevent wrongful convictions are some of the options the state legislature should consider.

Yesterday , I felt like an old circuit riding lawyer.First stop was the courthouse in Shelbyville ,Tennessee.Next stop was General Sessions in Gallatin , Tennessee. In the office today , so I thought I would comment about the Scram device. A video on how the scram device works is the featured video on this post. However Pennsylvania DUI lawyer Justin McShane wrote a post on his blog about the Scram device. In a nutshell , the machine is designed to detect alcohol from the skin.Lindsay Lohan is the most famous of the Scram users. Here is a picture of her wearing it in a bikini no less.

Tennessee’s new and improved DUI laws go into effect in 2011. Expect to see the use of the Scram device increase in dramatic proportions. I would suggest reading Michigan DUI lawyer  Patrick Barone’s article on the scram device.Mr. Barone discusses the limitations of the alcohol monitoring device which I intend to follow up on the a future post. The price of a DUI conviction is going up. A great DUI defense may get you out of what Ms. Lohan experienced.

 

I wrote this morning on the Kenny Britt bar fight  before I walked over to the A.A. Birch Building for DUI court. The courthouse is always a great place to discover what is really going on in  Nashville . I might be wrong that the Kenny Britt case is dead in the water.  It appears Nashville Metro Police are still actively working the case. I am a little shocked by the delay in making an arrest if there is proof of an assault.Here is one interesting twist to the case , it appears Mr.Britt came to a friend"s aid.It is a defense to  a simple assault to come to the aid of a third person. I will discuss that defense in my next post. The big question is will Kenny be arrested.

It appears Kenny Britt  may avoid any criminal charges from a bar fight that happened on Second Avenue in Nashville a couple of weeks ago.No reports have surfaced from the news media. Lack of comment probably means the case is not going to be prosecuted. In most of these downtown bar fights , someone is going to be arrested on the spot.Since there was a delay in bringing a charge it appears Mr.Britt may skate on this simple assault. The police don’t waste a lot of time investigating an alleged bar fight. I do wonder what happened with the security video from the bar. Was there video and if so what did it show ? If there have been no arrests since October , it’s pretty safe to bet the over and under that no charges will be filed against Mr.Britt.

                                             

What is a grand jury ? A grand jury in Tennessee is made up of a foreperson and 12 members.A Tennessee grand jury’s main duty is to inquire into , consider , and act on all criminal cases submitted to it by the district attorney general.Article I Section 14 of the Tennessee Constitution  provides that no person shall be put to answer any criminal charge but by presentment , indictment , or impeachment. So , a grand jury must authorize any criminal charges to be tried before a jury.

Here are some random facts about the grand jury process ;

  1. The proceedings are secret.
  2. Normally it is not recorded.
  3. No witnesses for the defense are allowed to attend unless allowed by the district attorney.
  4. Hearsay is allowed.

From my perspective , allowing hearsay evidence is the most troubling aspect of the process.The grand jury system was designed to act as a safeguard from abuses of the government.Now , a investigator from the district attorney’s office can just read a report and the arresting officer does not have to testify. So over the years the power of the grand jury has been watered down by allowing hearsay evidence to be admitted.