Currently, there are three driving under the influence (DUI) cases pending at the Tennessee Supreme Court. Two cases have similar issues and one may have the Court adopt the good faith exception. Here is my take on the two traffic stop cases.

In State v. Linzey Smith and State v. William Davis Jr. both address traffic stops. In each case, the probable cause was failure to maintain lane under T.C.A. 55-8-123(1). One bright spot was the ruling in State v. Binnette, which lead to a flood of motions to suppress based upon the ruling that it was impossible to drive a car in a perfect straight vector. In Smith, the court denied the motion to suppress. The court held "a showing of reasonable suspicion does not require an actual violation of the law because Terry accepts the risk that police may stop innocent people". I expect the court to adopt the lanquauge that reasonable suspicion is enough for a valid traffic stop and Binnette will be overruled. Here is a link to a News Channel Five story where I was interviewed on the cases.

What does this mean for Tennessee motorists? It means more traffic stops. Police will be able to stop a car for touching a white line anytime anywhere. It will lead to more pre-textual traffic stops. The police will have the power to make unfettered traffic stops. Melanie Wilson Dean of the UTK School of Law wrote a great article for the Kansas Law Review on the topic that is worth checking out.

The Fourth Amendment will soon take another hit.

 The Tennessee Alcohol Beverage Commission (ABC) have been busy conducting underage alcohol stings in Nashville Davidson County Tennessee this summer.. The ABC and the Davidson County Beer Board have concurrent jurisdiction on enforcement of underage sales to minors. It is also a criminal offense to sale beer or alcohol to minors under T.C.A. 57-5-301 .Here is how the sting works and the consequences of the sale.

First, a ABC agent goes into a bar or restaurant with someone that is under 21. The confidential informant asks to buy a beer. The server or clerk does not ask for a identification or makes a mistake in reading the date of birth. If the sale is made, the officer will issue a criminal citation to the server or clerk for the sale to a minor. It is a Class A misdemeanor which carries a fine up to $2500.00 plus up to 11 months and 29 days in jail.

The permit holder then faces some punishment. You will get a citation from the ABC. The punishment can be a fine or it it lead to a revocation of your ABC permit. Then, one will get a citation from the Davidson County Beer Board. A first offense carries up to a $2500.00 civil penalty.

There are three separate punishments for the sale of one beer to a minor. The criminal citation is usually the easiest to handle successfully. The ABC and beer board are a different ballgame. I was a member of the Davidson County Beer B. since , my term was not renewed by an incoming mayor, I have been handling cases before the beer board and the ABC. It is a maze of administrative laws that is sometimes hard to navigate especially the appeal process. The bottom line is to hire good folks and make sure they are rained to ask for identification from everyone.

I spent part of last week in the Maury County Courthouse in Columbia ,Tennessee. It was built around 1905 and is a reminder of old southern courthouses. It also reminds me of how I hate the modern criminal justice centers that are bland and devoid of any character. The new justice centers remind of a jail. Lessons from the courtroom are important. In this post , I will address one tip and one lesson learned.

I have tried cases all over Middle Tennessee. One tip I have learned is if the courthouse is more than thirty minutes away from Nashville stay in a hotel. I tried this first in a week long murder trial in Gallatin , Tennessee in 2013. No stress with traffic or possible wrecks. Another hour a day you can devote on the case instead of driving. No distractions from your life. The best thing is a total immersion into the case. So for my case in Columbia, an easy drive  after work.Last minute trial preparation. Up early for more case preparation and then a short trip to the courthouse where I was forty minutes early. I highly encourage this approach for trying cases away from home.

The lesson from the courtroom is request the Rule in every case. Rule 615 of the Tennessee Rules of Evidence is the rule that mandates witness sequestration if requested. Basically once the rule is invoked all witnesses must leave the courtroom. Further , no one can communicate what is going on in the trial. There are some exceptions. One exception is a party that is designated by counsel for a party that is not a natural person can remain in the courtroom. Normally in DUI trials , the district attorney asks the arresting officer to sit at counsel table.

The lesson is that f the prosecutor has a police officer at council table that officer must be the first witness to testify. It would be fundamentally unfair to have the main officer hear all the testimony of other witnesses and then let him clean up any problems. It happened in this weeks trial. I anticipated this issue might come up based on the opening statement. so I was ready to make the objection based on the Holding in Mothershed and Collins. However, I made a motion to exclude the arresting officer’s testimony based on a violation of the Rule. After a lengthy argument, the court granted a mistrial rather than exclude the witnesses testimony.

The teaching point is always ask for the rule in all trials. Master the rules of evidence. Be alert and ready to make an objection.

Is it time to abolish the habitual motor vehicle offender law in Tennessee. the habitual motor vehicle offender law was enacted to prevent people with qualifying  criminal convictions from driving. A petition to declare one a habitual motor vehicle offender based on the number of DUI convictions as well as other driving offenses such as driving on a revoked driver’s license. Once you were declared a habitual motor vehicle offender, it was a Class E charge if you got caught driving. A Class E felony charge carries one to six years in jail.

Why should Tennessee abolish the habitual motor vehicle offender law ? The answer is easy. Require ignition interlock devices. Several years ago the Tennessee state Legislature passed one of their better laws allowing anyone with a revoked license to apply for a restricted driver’s license with an ignition interlock device (IID). The benefit is twofold. First, people would be driving legally and with the IID. It would prevent more DUI arrests. It would also promote sober driving. Studies show the use of the IID have a lower recidivism rate than those that don’t use the IID. Secondly, It would decrease incarceration rates and save those jail cells for those of convicted of crimes.

I would invite my friends at the state legislature to look into the issue. Would we rather ban someone from driving for three years in Tennessee when we know they are going to drive anyway or should we make the roads safer ? Give me a call. I would be happy to make some suggestions. Some progressive district attorneys are working with defense lawyers to solve the problem. It is time to revisit the habitual motor vehicle offender law.

In Harris County Texas, sheriff’s deputies searched a woman’s vagina recently. Radley Balko reported the story in the Washington Post. The deputies searched Charnesia Corley’s  car for almost an hour then brought a female officer to the scene for a body cavity search. Ms. Corley refused. More backup officers were requested. Backup arrived and they grabbed her legs and spread them apart so the female officer could search her vagina.. No search warrant was obtained nor is it required under Texas law. Ms. Corley did not consent to the search. When I read Mr. Balko’s post I was horrified. I am just glad that could not happen in Tennessee.

In order to conduct a body cavity search in Tennessee, one of two things must happen under Tennessee Code Annotated 40-7-121. First , police must apply for a search warrant to be able to conduct a body cavity search or a person can give consent to a body cavity search. One interesting aspect of T.C.A. 40-7-121 is that the consent must be in writing and contain certain language advising the person of their rights. Under Tennessee, consent to search usually does not have to be in writing.

Incredibly, a spokesman for the Harris County Sheriff’s office stated  the officers conduct was appropriate. according to the statement police could strip search a suspect if they wanted. It seems to be a sad state of affairs in the Lone Star State. Thanks to Deandre Grant for alerting me to the story.

Memories of Judge Tom Shriver came back to me over the past several days. Judge Shriver was the long time District Attorney General for Davidson County, Tennessee. Later , Judge Shriver became a criminal court judge in Davidson County. I have been working on a case and thought about some advice he gave me years ago.

Judge Shriver taught criminal law and procedure at the Nashville School of Law. He ran his courtroom like a classroom. Discussions on the law were commonplace during court rather than just deciding the issue. One day Judge Shriver wanted to tell me the rules on when a client should testify. Deciding whether your client should testify in his case is one of the hardest decisions for a criminal defense lawyer. The decision to testify is that of the client, however they always want your advice. Since he was going to share his wisdom of years in the criminal courts of Nashville , I drew near so as not to miss a word. Here are his five rules on deciding whether you should have your client testify.

  1. Never put your client on the witness stand.
  2. Never put your client on the witness stand.
  3. Never put you client on the witness stand.
  4. Never put your client on the witness stand.
  5. See rule one.

I was thinking about that advice on a case where a client made some statements to police that contradicted the theme of the defense. The police have the advantage where they get statements before an attorney is involved. This is another reason no one should speak to police. Remember all rules have exceptions . here is one example of the rule. I had a first murder case in Sumner County, Tennessee. Our plan all along was to have the client testify. As trial neared, we had a practice direct examination and I hired an attorney to cross-examine my client. He wilted under cross. We changed our strategy and he was convicted of reckless homicide rather than first degree murder.

Make sure you never give any statements to police that can later be used against you in court. Secondly, practice your testimony prior to trial and be prepared to be cross-examined.

One final thought. I wish I would have written down all the great advice that has been given to me over the years.

 

Two recent cases in the news confirms the role that cell phone evidence is playing in cases around the country. First , Tom Brady destroyed his cellphone in March of this year right after the folks investigating asked for the cell phone. Mr.Brady claimed it was his routine practice to destroy his old cell phone even though two of his old phones were still around.It appears there were a high amount of texts between Mr.Brady and equipment manager John Jastremski days after deflategate was discovered. Mr.Brady was lucky it was just a NFL investigation. Under Tennessee criminal law. Mr. Brady would be facing a felony tampering with evidence charge. The second case is an opinion for the 6th Circuit Court of the U.S. Court of Appeals. a man inadvertently  pocket dialed a person. The court held there was no expectation of privacy during an accidental cell phone call.

Folks use cell phones for a variety of purposes. texts messages come up in all types of cases from drug cases to domestic violence cases. If you put incriminating evidence on your cell phone , expect the police to get a search warrant for your phone.

Here is some tips;

  • Don’t store anything on your phone you would not want your mother to see.
  • Password protect your phone.
  • Don’t text message threats of violence.
  • Just because you delete the text , it is still there.

One last thing , just because Tom Brady destroyed his phone does not mean the evidence is gone. The chips might still be around. I think I am going back to a rotary phone.

Sandra Bland was laid to rest this past weekend . Ms. Bland’s arrest and death has been widely reported in the media. Questions linger on why she was arrested and the circumstances leading to her death. Coming back from court her story was featured on the radio program On Point . CNN ran a  video on a citizen’s rights during a traffic stop. What are a citizen’s rights during a traffic stop in Tennessee ?

Once stopped for a traffic violation a citizen must display the following;

  • A driver’s license.
  • Proof of vehicle registration.
  • Proof of automobile insurance.

Can the police order you out of your car ?

Under the U.S. Supreme Court case of Pennsylvania v. Mimms,  the court embraced the concept that a officer could order a citizen out of a car . The Tennessee Supreme Court in Donaldson ruled that a police officer could order a citizen out of their car during a traffic stop.

Can a Tennessee police officer arrest you for a traffic offense ?

The quick answer is yes. All state traffic citations are Class C misdemeanors . Class C misdemeanors are punishable by up to 30 days in jail. In reality , most police officers in Tennessee will issue a criminal citation in lieu of an arrest. Criminal cases may be dismissed if a police officer issued an arrest warrant instead of a criminal citation.

Here is the teaching point. Don’t fight your case in the street. Police have an advantage on the street. No pesky criminal defense lawyers are present. No judges are present. The police have weapons, tasers, and handcuffs. police are always worried about their safety. Treat police officers with respect. Most of the police officers will treat you with respect if you do likewise.

Rest in peace Ms. Bland.

 

After California enacted a new law earlier this year, illegal residents became eligible to obtain a driver’s license. The California Department of Motor Vehicles reported over 397,000 drivers licenses were issued to illegal residents for the first six months of this year. In Tennessee , a illegal resident is prohibited from obtaining a Tennessee driver’s license.

Tennessee needs to follow California’s example. Thousands of illegal residents live and work in Tennessee. There exists a double standard. Businesses hire illegal residents to work. Yet, it is not acceptable to allow them to apply for a license. Take a visit to Court Room 1A in the A. A. Birch Building in Nashville where the criminal citations are handled.. You will see the courtroom flooded with folks. Their only crime is driving without a valid Tennessee license. Police officers issue criminal citations. Judges, public defenders , prosecutors , and translators work to process the cases. Resources wasted.

Supporters of the California law argue that allowing illegal residents to apply for a driver’s license makes the roads safer. One has to pass a test and take a driving test. Now, folks drive without any testing. If one had a license , maybe the streets would be safer.

I know it is just wishful thinking, but it is time the Tennessee Legislature tackles this issue. I know it is unpopular with certain segments of the population. It is the right thing to do.

 

Last week , I was returning from Chicago where I gave a presentation to the folks that attended the DUIDLA summer session. Here is a short listing of some of the  topics that were presented.

  • Cross-examination
  • Canadian Travel When One has A DUI Conviction
  • FAA Reporting and Pilot Medical Clearance Issues
  • Crime Lab Discovery
  • Blood Alcohol Defenses
  • Challenging Breath Test Results

These were just a sampling of the topics presented. The point is does it matter what continuing education courses (CLE) that your DUI lawyer takes. All lawyers in Tennessee are required to take 15 hours of CLE each year.  Some lawyers take what ever course is the cheapest. It does not make any difference what course they take. It could be divorce law , probate law or any other course. Another method of taking classes is to take any class in order to meet the deadline. I knew of one lawyer who took an Admiralty course just to comply with the deadline. Some lawyers take CLE courses strictly in their field of practice in order to keep abreast of the changes in their field.

Hiring the right DUI lawyer is an important decision. One of the questions you might ask is what course do you take to satisfy your CLE. Do you want a DUI lawyer that takes courses that keep them up to date on the new trends in DUI defense or do you want a lawyer who takes courses in some random area of the law. One thing is certain , the assistant district attorneys who are prosecuting DUI cases across Middle Tennessee are being trained in DUI prosecution. Maybe you should hire a well trained lawyer as well.