I was reading an article today by Mark Fulks of the Tennessee Attorneys General’s Office on his thoughts of the Confrontation Clause and DUI evidence. Mr Fulks makes an argument that DUI evidence such as the breath test printout and the breath test machine calibration certificate does not fall under the Confrontation Clause as set out in Crawford v. Washington and Melendez-Diaz .Crawford identified when evidence was testimonial which triggered a Confrontation Clause analysis.Fulks points out the calibration certificates should be admissible because they are not testimonial in nature.

Respectfully , I disagree.

 

 

In State v. Sensing, 843 S.W.2d 412 (Tenn. 1992), the Tennessee Supreme Court set forth

the proper “foundation to be laid for the admission of evidentiary breath tester results.” Id. at 416.

The court held that a testing officer must be able to testify

(1) that the tests were performed in accordance with the standards and operating

procedure promulgated by the forensic services division of the Tennessee Bureau of

Investigation, (2) that he was certified in accordance with those standards, (3) that the

evidentiary breath testing instrument was certified by the forensic services division,

was tested regularly for accuracy and was working properly when the breath test was

performed, (4) that the motorist was observed for the requisite 20 minutes prior to the

test, and during this period, he did not have foreign matter in his mouth, did not

consume any alcoholic beverage, smoke, or regurgitate, (5) . . . . evidence that he

followed the prescribed operational procedure, and (6) be able to identify the printout

record offered in evidence as the result of the test given to the person tested.

 

Here’s the point.Sensing requires the machine be tested for accuracy. The 90 day accuracy checks are not routine maintenance , but are conducted to comply with the holding in Sensing when the evidentiary threshold was lowered to not require expert testimony by police officers in DUI breath test cases.

Right now there is no clear decision , however the U.S. Supreme Court is taking up another Confrontation Clause up this term. Stay tuned.

Two stories from the news bears commenting on today.One of the guiding principles of our court system is a fair trial , an unbiased judge , and a right to appeal. Those principles were addressed in two separate reports today.

First , a  Nashville Circuit  Court Judge has ruled in favor of a defendant in a medical malpractice case. The problem is that the judge sits on the board of the defendant. One of the major ethical rules is to avoid any appearance of impropriety.For example , a person on trial for a DUI in Nashville would not want the judge to be a member of Mothers Against Drunk Driving (MADD).

Secondly , three Iowa Supreme Court Judges  were removed by voters after they ruled on the constitutionally of same sex marriages.We need an independent judiciary to decide tough cases. The founding fathers recognized that when the U.S. Supreme Court Justices and federal judges were given a lifetime appointment. The question raised in this story is will there be a chilling effect on judges to make the right call when public sentiment is otherwise. For example , a tough stance on crime equals going to jail rather than a shot at probation.

It will be interesting to watch the fall out from the Iowa elections as it deals with issues on the independence of the court.

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

One of the first things I normally cover with a client is to ask about certain medical issues.Medical issues are  a great defense in drunk driving  (DUI) cases.

First , medical conditions effect the standardized field sobriety tests. According to the National Highway Traffic Safety Administration ( NHSTA)  2006 manual people with back leg or inner ear problems have difficulty performing the test.

Secondly , diabetes and acid reflux can cause false readings in the breath test machine.

This video discusses the medical issues in a DUI testing report used by Nashville police officers.

Remember medical issues are important in defending your DUI case.

                                             

 Lawrence Buser of The Memphis Commercial Appeal recently added up the costs of the death penalty trial of Jessie Dotson.Jury selection took place in Nashville,Tn. and the jurors were taken to Memphis for the trial.Mr.Dotson was convicted in the first degree murder of six men , women , and children . The trial is believed to be the most expensive trial in Shelby County history totaling over $ 450,000.00 so far.Years of appeals and related proceedings lay ahead.So what is the cost of the death penalty ?

Shelby County Sheriffs Office’s part of the tab was $167,310 which included security , overtime , and expenses of the sequestered jury. Over $250,000.00 was paid for defense counsel , a private investigator , a mitigation expert , and another expert witness.Also , the District Attorney , Judge , and court personnel were employees of the state and not included in the dollar amount.The cost will climb after appeals , post conviction hearings, and numerous trips to the federal courts and maybe even the U.S. Supreme Court.

Does the expense of a death penalty trial make economic sense ? One option is to offer a plea to murder with life without parole in lieu of the death penalty.Knowing you are going to die in prison has to be a powerful punishment.I understand from the family’s perspective that a horrific crime deserves big punishment. How do we balance justice with cost effective punishment.Mr. Dotson’s bill is close to a half a million and the other mass murderer on death row Paul Dennis Reid bill is at $ 420,000.00 and counting.

Some people might think that we just need to eliminate the lawyers and the appeals.The ultimate penalty deserves the ultimate defense as mandated by the U.S. Constitution.

"People will say there was an eyewitness, why have a trial, but what if the guy’d been found innocent?" said Criminal Court Judge James Beasley Jr. "Do we put a price tag on the freedoms we have in our country? Is there a price tag for the justice system? When do we say that’s too much?"

I think Judge Beasley’s commentary bears some discussion . However , it’s still cheaper than the lawyers charged the City of Nashville  for the convention center.

 

 

 

                                 

Why am I showing a image of someone rolling a joint when the title is " Tennessee Sentencing Hearing Tips". Simple. Avoid drug use when facing a criminal charge.Okay , I know drugs are illegal .However , I do realize some individuals use recreational drugs. It creates problems if your charged with a crime.Increasingly , some courts order drug tests at plea or prior to sentencing.A hot drug test spells doom and gloom for my clients.Conversely, it speaks well if one can pass a drug test.Here is a short list from my experiences of Tennessee criminal courts that request a drug test:

  • Division III of the Criminal Court of Davidson Tennessee orders a drug test on the defendant on the day of sentencing.I think this is fair use of a drug test.
  • The General Sessions Court of Sumner County in Gallatin , Tennessee often orders a drug screen after a plea on simple possession.If you fail , a trip to the jail may be in your future.
  • The Criminal Court  in Williamson County , Tennessee at Franklin sometimes orders drug tests at plea but prior to a sentencing hearing.

So , my tip for a successful sentencing hearing in Tennessee is don’t use any drugs for your case is pending.

 

How do you get out of a federal prison after being sentenced to life for participating in 11 murders ? You snitch. Salvatore Vitale was convicted in 2003 of racketeering , murder in aid of racketeering , and admitted to being involved in over 11 murders. Yesterday , a New York federal judge released him from prison and was given a time served sentence. How did he escape a life sentence ?

Mr Vitale testified against his former cronies in the Bonnanno crime family. Mr. Vitale was the key person who brought down several of the members of the crime organization over a series of trials.Vitale told prosecutors of arson , burglary, hijacking, money laundering , and a host of other crimes since his incarceration. In exchange , prosecutors filed a motion in federal court to reward him for his help.Mr. Vitale took advantage of a rule in the Federal Sentencing Guidelines that allows a departure in sentencing. Under the Federal Sentencing Guidelines , the government can file a 5K.1 motion for a departure from his sentence for helping criminal prosecutions. Mr. Vitale took advantage of that get out of jail free card by testifying in six trials over the years.

The government asked the court to release a confessed murderer which the court granted the motion.Mr.Vitale will resume life in the free world soon.

Here is what the law is on a 5k departure;

CHAPTER 5 – PART K – DEPARTURES

 

1.      SUBSTANTIAL ASSISTANCE TO AUTHORITIES

 

§5K1.1.      Substantial Assistance to Authorities (Policy Statement)

 

Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.

 

                   (a)       The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:

 

                               (1)       the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;

 

                               (2)       the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;

 

                               (3)       the nature and extent of the defendant’s assistance;

 

                               (4)       any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;

 

                               (5)       the timeliness of the defendant’s assistance.

 

I have been writing The Nashville Criminal Law report for ten months. In April of this year the Nashville Criminal Law Report was the blog of the week by Techno lawyer.This month the Nashville Criminal Law Report was named the blog of the day by Tom Mighell of Inter Alia.

When I started writing , I just thought my observations would just go to cyberspace. I would like to thank Tom for his recognition.

In Tennessee , it is unlawful to violate an order of protection issued by a court. A violation of  an order of protection is governed under Tennessee Code Annotated 39-13-114.A violation of this section is a Class A misdemeanor. The legal twist with this law is it requires it to be served consecutively to to the sentence for any other offense that is based upon the same factual allegation.

The teaching points are ;

  • Contest the order of protection.
  • Obey the order if the court grants it.

One of the basic tools in DUI cases in Nashville , Franklin , And Gallatin are the Standardized Field Sobriety Tests. What is the definition ?

Standardized Field Sobriety Tests are a battery of three tests , Horizontal Gaze Nystagmus ,Walk and Turn , and One Leg Stand , administered and evaluated in a standardized manner to obtain validated indicators of impairment based research by the National Highway Traffic  and safety Administration. (NHSTA).

By the way , the photo above is not how you do it correctly. This guy is going to jail.

The Tennessean ran a story recently on drugged driving in Tennessee.Here are some take away facts from the story;

  • The Tennessee District Attorneys Conference will ask state lawmakers to strengthen DUI laws to make it easier to convict drugged drivers.
  • Prescription drugs have grown to the second most abused drug in the country after marijuana according to the 2008 National Survey on Drug Use and Health.
  • A 2007 study by the National Highway Safety Administration (NHSTA) reports that 3.9 % of weekend drivers tested positive for medications such as Loratab,Hydrocodone,Soma,Xanax,and Valium.
  • One proposal being pushed is allowing officers to take a check swab drug test at roadside.
  • Secondly , there may be an effort to take away the right of citizens to refuse a blood or breath test.

Also , the article states the need for more drug recognition experts. However , it appears that science is not been studied in depth.The same folks that did the NHSTA field sobriety studies also studied Drug Recognition Expert  (DRE)  procedures also performed a study on DRE . It appears that DRE is not the magic bullet to detect the presence of drugs .

More troubling is the move in to lawmaking by the Tennessee District Attorneys Conference. It appears they will be actively lobbying the Tennessee State legislature this coming session. It appears they have moved their focus to make convictions easier.It appears it is another attack on a citizens right not to be compelled to give evidence against one selves and a move for a zero tolerance of alcohol and drugs on the road. Nashville criminal lawyer David Brandon commented  that these proposed laws may encourage police officers to abuse their powers against drivers using their medications legitimately.

Who’s at the root at the problem. Doctors that over prescribe and pain management clinics that write a prescription to anyone with no consequences from the law.