Nashville Criminal Lawyer Blog

Sweeping changes to Tennessee DUI laws went into effect January 1st which are sure to keep Nashville DUI lawyers busy. One of the new laws may have DUI lawyers down at the courthouse within hours of an arrest fighting for their clients release on bail. A change to one of the bail statutes directs courts not to release defendants charged with DUI who have certain prior convictions "unless the court first determines he or she is not a danger to the community." A Sumner County DUI prosecutor was quoted as saying "If you've got multiple offenses for DUI or you're out on bond for DUI, you no longer have a right to bond," in a recent Tennessean article.

The statute gives no further guidance as to what criteria determine being a "danger to the community." How will Judges make this determination? Will some misdemeanor DUI defendants really be held in custody until trial, which in some jurisdictions can easily take longer than a year?

Tennessee law has long allowed that public safety be considered in setting both the amount of bail and certain conditions to release. Here's a link to the prior statute. But, this represents a significant change which Tennessee criminal defense lawyers are likely to argue violates the state constitution and other prior legal precedents. The Tennessee Constitution, the highest law in the state, has guaranteed any person accused of a crime, other than a capital offense, the right to be released on bail prior to trial for over 130 years.

It is not at all clear how magistrates and judges at the various levels will interpret this statute. Tennessee law provides many avenues of appeal for release orders, and I predict this new statute will quickly become the center of many arguments at courthouses across the state. See Rule 8, Tennessee Rules of Appelate Procedure.

Continue reading "Will Some Tennessee DUI Defendants Be Denied Bail After Arrest?" »

Last month, international headlines were dominated by the story of the arrest, and later release on bail, of the infamous WikiLeaks founder Julian Assange. The recent events of this news story are instructive to illustrate two decisions that are important when facing a criminal charge: (1) hiring a lawyer, and (2) turning yourself in on an outstanding arrest warrant. Before his arrest, Mr. Assange retained counsel who negotiated his surrender to authorities and soon thereafter secured his release from jail while the case is pending. Of course, in many instances, individuals are unaware of pending criminal charges against them before they are arrested, but often there is some advance notice of imminent arrest.

Usually within hours of arrest, an initial determination will be made regarding the conditions of pretrial release, such as setting bail. In Nashville, as soon as someone is arrested and booked they appear before a judicial commissioner who will review any information relevant to these initial determinations and make a ruling. The commissioner will decide what dollar amount at which to set bail and whether any other conditions of release should apply. Here's a link to the statute regarding general bail considerations. For example, some statutes authorize a defendant to be held in custody for 12 hours before being released even if bail has been posted. Other conditions may include orders for defendants to stay away from certain people or places, place limitations on travel, place limitations on firearm possession or consumption of alcohol. If a defendant retains a lawyer before arrest, that lawyer can accompany them while turning themselves in to authorities and present relevant information to the commissioner or judge making the initial pretrial release determination that could greatly influence their decisions. Otherwise, a judge is left only with information about the allegations against the defendant and possibly information about any prior criminal history. Voluntarily turning oneself in can be a persuasive reason for the judge to consider you likely to appear in court. The judge might also look favorably on the fact that you have already hired a lawyer as further evidence that you will be responsible in cooperating with the court process. On the flip side, if a person is arrested after a police chase, violent confrontation with the police, or extended evasion of arrest, that will likely serve as the basis for the setting of bail in a high amount.

If the initial bail setting is not favorable, under Tennessee Law a defendant may make a motion for a judge to review bail, and again, the fact of having voluntarily turned oneself in can be persuasive to support an argument that the defendant will be likely to appear in court. There may be other times throughout a court case in which this could be helpful - such as a showing of good faith during plea negotiations, judicial consideration of acceptance of responsibility, cooperation for pretrial diversion, or during a later sentencing hearing.

Continue reading "Turning Yourself In for an Outstanding Warrant Can Have Several Advantages" »

Tennessee has beefed-up a weapon in its arsenal of DUI prevention: the interlock system. An interlock device is a dashboard breathalyzer installation that requires a driver to blow into the device and demonstrate to the computer that he or she is below the legal limit. They cost approximately $100 per month to operate and must be installed by a professional.

Although the interlock device has previously been an option for some DUI defendants, it has not been a mandatory part of a DUI or implied consent sentence until now. After January 1, a person convicted of a first offense DUI with a blood alcohol content of .15 or above (almost twice the legal limit) will be required to install an interlock device at his or her expense. Mothers Against Drunk Driving lobbied for a harsher law mandating interlock installation for offenders who registered over .08, similar to the laws in New Mexico and Arizona.

Defendants who refuse a breathalyzer test at the scene of the arrest will also be subject to a mandatory interlock installation as part of the implied consent violation, as will those convicted of DUI with a minor in the car.

The interlock system will also allow defendants whose blood alcohol level registered below .15 who get an interlock device to have much more flexibility in the conditions for a restricted driver's license - basically unlimited travel-as opposed to the former restricted license that only allowed limited travel to work, school and church.

One of the most interesting aspects of the new law involving the interlock system is what happens if a person who has an interlock device on his or her car is caught driving another car without an interlock device - that person faces an additional criminal charge that carries mandatory jail time.

The law also makes it important for you to know if your friends have an interlock device before loaning them your car. If you allow someone who is supposed to have an interlock device on their car to drive your non-interlocked car, you are committing a crime, even if neither you nor the driver has been drinking. Think twice before handing over those keys.

Continue reading "Tennessee Has New DUI Laws Regarding Interlocks" »

Could a drug case pending in Knox County successfully bring a constitutional challenge to Tennessee's Drug Free School Zone Act? The Act and similar acts in other states were passed in an effort to curtail drug activity in areas close to school zones, but have met much criticism for encompassing excessively large geographic areas beyond any school grounds. For example, a study of a similar statute in Connecticut showed that virtually all of the city of New Haven fell into a school zone area, as mentioned in a recent City Paper article.

The Act often dramatically increases the actual sentence served by increasing the offense level and limiting parole eligibility. For example, a defendant without any prior criminal history convicted of selling half a gram of cocaine (less than half of the equivalent of a pack of sugar for coffee) in a non-school zone area could be sentenced to as little as eight years of probation with no jail time. The same defendant convicted under the Drug Free School Zone Act faces a minimum punishment of fifteen years in prison without the possibility of parole.

There have been recent multi-state studies indicating that drug free school zones may not very effective in reducing drug traffic or protecting school children, and instead have a negative impact on racial disparity. A case currently pending in Knox County, State v. McDaniel, seeks to raise this issues and challenge the Act on equal protection grounds, i.e., that drug free school zone laws violate the constitutional guarantee of equal protection because the enhanced penalties are likely to apply to African Americans and other people of color who live in urban areas rather than whites who live in the suburbs. The McDaniel defendant's counsel claims that although only nine percent of Knoxville's population is African-American, 82% of the defendants stopped in drug-free school zones are.

Although this argument appears to be the first of its kind in Tennessee, similar arguments have been raised - and rejected - in New Jersey, Alabama, Florida, Indiana, Massachusetts and Ohio. Other cases have presented equal protection challenges that argue that drug-free school zones run afoul of equal protection by arbitrarily subjecting individuals in certain areas to stricter punishments than those outside of the drug free zone.

Defendants in other states have attempted Constitutional arguments other than equal protection. For example, a Washington state defendant presented a violation of due process defense on the grounds that the law does not require the state to prove that the defendant knowingly violated the law, i.e., that he knew that he was engaging in drug activities within a school zone. He contended that he had no way to know that he was within 1000 feet of a school zone, which in actuality was a high school equivalency class without an actual campus. This argument was rejected.

Because of the severity of the application of the law to enhance punishment, criminal defense lawyers will continue to challenge the statute or at least limit its application to its intended purpose.

Continue reading "Challenge Mounted to Drug Free School Zone Prosecutions in Tennessee" »

I came across an article recently that reminded me of a situation that I have seen with increasing frequency in recent years-people being fined or even charged with crimes for minor weapons violations at airports which are the result of absent minded packing rather than any nefarious attempt to use a weapon at an airport or on a plane.

Time.com recounts a recent situation with pop singer Joe Jonas. He was stopped by airport security after they found a set of knives in his carry-on. If he's like me, he probably didn't leave an inch of extra space in his bags before he left and found himself cramming all those souvenirs and gifts he bought on his trip into his carry-on. Well, suffice it to say, any type of knife is clearly a no-no in the post 9/11 security world that we now live in. Depending upon the type of knife, he might also have been afoul of certain criminal weapons statutes. Joe was lucky-security simply relocated the knives to his checked luggage, but many people haven't been so lucky at the Nashville airport.

A little absent minding packing like this at a Tennessee airport could easily have you facing federal fines and possible state criminal charges. TheTransportation Security Administration (TSA) website lists items prohibited for carry-on luggage and checked luggage. The TSA Enforcement Guidance Policy lays out possible civil fines one faces. And, some items may not only violate TSA safety regulations but may run afoul of Tennessee or other states' weapons laws.

I have seen many cases in Nashville General Sessions Court in which people received misdemeanor citations for weapons offenses. Often it's for novelty type items which many don't realize can fall within the category of illegal weapons, e.g., martial arts type items and knives with spring loaded blades. If you have any object that could be considered a weapon when traveling it would be a good idea to check both the TSA regulations regarding weapons and the State and local laws to ensure you are in compliance. Most violations of Tennessee's unlawful weapons statute are class A misdemeanors. In Tennessee, a class A misdemeanor is punishable by a possible sentence of up to eleven months and twenty-nine days in jail and fines up to $2,500.

Continue reading "Absent minded packing can lead to fines and/or arrest at Nashville airport" »