Immigration Hotline - Why its important for all of us in Sevier County

The Immigration Customs Enforcement Agency (ICE) has created a hotline for anyone who believes that they are being illegally detained as a result of their questioned United States citizenship. This hotline operates 24/7.  Why is this an important step in protecting citizens in Sevier county? You may say "I am a white/black/native american who speaks perfect english and give no indication of being other than a United States citizen -this surly wouldn't be of any interest to me right??"


Wrong. Let me give you a true example of what can potentially happen to you in Sevier County and why having this number may save you an extended stay in jail.


This year 3 black women were stopped by SPD and questioned because they fit the profile of a shoplifter. No person observed these women stealing anything.  Store employees contacted the police because the women were acting suspicious. Interestingly, the suspicious actions were actions the police told the store employees to be looking for in shoplifters.


The women were detained by SPD and asked to produce I.D. When the women stated that they did not have I.D. on them they were told that they could be held for up to three days without being charged with a crime to determine their citizenship.  There was nothing to indicate that these women were anything but United States citizens.


When questioned under oath the officer stated that the law allowing a 3-day detention was "T.C.A." meaning Tennessee Code Annotated. The prosecutor nor the Judge could find such a statute in the Tennessee Code.


I do not know if this remains a practice in Sevier county but I urge each of you to keep this ICE number handy just in case you are ever stopped without your I.D. and hauled off to jail for your citizenship to be confirmed.


The ICE hotline number is (855) 448-6903

DUI: Asleep at the wheel = crime?

Oh if I had a dollar for every time I have been posed this question - “I left a bar and after I drove a mile or so I realized I shouldn’t be driving. I pulled into a parking lot, turned off my car and went to sleep. A cop comes by, wakes me up, and charges me with DUI. Can they do that?”

Under this fact pattern they most certainly can. The accused need only be in “physical control” of a motor vehicle to meet the requirements of a DUI. In State v. Lawrence the defendant was found asleep inside a truck in the drivers seat. The engine was off and the keys were in his front pocket. Mr. Lawrence’s conviction was upheld by the Court of Appeals who stated that the vehicle was capable of being immediately placed in motion.

In a similar case, State v. Turner, two good ol boys were observed by the police staggering across a bar parking lot. They get in the vehicle and turn on the ignition but never moved the car. Cop charges Mr. Turner with DUI. Mr. Turner’s defense was that he and his buddie were just waiting in the car for his nephew to come and pick them up. The engine was turned on just to stay warm. The nephew came to court and testified that he was in fact on his way to pick up Mr. Turner.  Unfortunately, Mr. Turner’s conviction was upheld by the Court of Appeals who found that Mr. Turner was in “physical control” of the vehicle. 

 It appears that the Courts look closely at where the defendant was in the vehicle as well as the location of the car keys. While it might not save you from a DUI arrest or even a DUI conviction, if you must pull off to the side of the road to “sleep on off” then you might want to consider getting in the back seat and putting the keys far far away from the vehicle. 

What about if the vehicle has been rendered inoperable  - say a flat tire?  I intend to address that issue in my next DUI blog. Stay tuned!

Immunity from Arrest

Remember that Lethal Weapon movie where the villain did whatever he wanted because he had diplomatic immunity? Yea that was a classic but is diplomatic immunity real?

Before we get to that, there is limited immunity for arrest for non-diplomats. For example, members of the General Assembly have immunity under the Tennessee Constitution Article II § 13. They can still be arrested for treason, a felony, or breach of the peace and this immunity only applies during session of the General Assembly or traveling to and fro.  Members of the National Guard also have the same immunity as the General Assembly but such immunity only applies when engaged in military duties (See T.C.A. 58-1-226). 

But what about the guy from Lethal Weapon??  Ok,ok,  the good ol United States Constitution does  provide for immunity for (ding ding) members of Congress. It also provides for immunity for diplomats of a foreign nation.  I don’t see that in the Constitution you say! Look at the fine print under Article 1 § 6.  The Federal Statute provided for broader immunity for the staff and family members under 22 U.S.C.A. §254(d).

But wait before paying up that $10 bet to your lethal weapon fanatic buddie. It doesn’t work exactly like the movies let on. First of all, the diplomat can still be prosecuted under the laws of its home country for acts committed in the United States. Not to forget the immunity applies to the Country not the diplomat himself. A foreign country can waive its immunity and the diplomat can then be charged under U.S. law. This actually happened back in 1997 when a diplomat drove drunk and killed a 16yr old girl. From what I understand he is serving up to 21 years in federal prison. 

Why would we allow immunity like this? Simply put - we want our diplomats treated with the same protocols. Some of our laws are strange and go against long standing traditions of some of our diplomats. For example having multiple wifes or sex with a willing 12 year old in many countries is completely legal and moral. We would hate to think of sending one of our diplomats to a foreign country and him be sentenced to 40 years of hard labor because he smoked a cigarette in a public place right?

Its not a perfect system but overall I believe it works pretty well. In any case it makes one heck of a great movie theme!

BLOGS/FACEBOOK/TWITTER

Friends/Followers,

I wanted to take a moment and define what exactly I want to accomplish by having my firm on social networking sites. While it is true that I “jumped on the bandwagon” in some of my earlier blogs to somewhat direct clients to my business, that is no longer going to be our practice. 

As I search the social media sites i have found that nothing seems more disingenuous than a “legal” blog or post that does nothing more than cite a statute then directs the reader to hire that firm. To me thats kinda like a stock broker having a “financial” blog then just posting stock prices.

With my blogs and posts id like to generate meaningful thought about issues of law. Sometimes i post my opinion, other times i post the opinion of others. In either event the purpose is to drive one to meaningful reflection on the law - not to my office. 

Of course some posts will focus on legal definitions and hard to understand statutes but the main course will be about educating and teaching the lay person on different aspects of the law. 

I also wish to encourage discussion. In one of the blogs i found similar to the ones mentioned previously, an attorney had completely posted the wrong law. A new law had just recently changed the law he/she had blogged about and i attempted to comment on his blog post. However, when i went to post a comment i was prompted to give all sorts of contact information before i would even be allowed to post a comment. That being said, i encourage those who read my blogs/posts to comment freely on them. Positively or Negatively. Feel free to “like” or “dislike” as well. On that note, facebook does some sort of tracking that i do not fully understand and i look at it from time to time. There is one follower (identity unknown) who sees fit to “dislike” every single blog or post. That is fine too but if you are “disliking” my explanation of what the definition of being disabled is then you probably are just doing so to try and drive traffic away from my blog or website.  So please lone “disliker” go do something more productive with your time. Rather, you should post why you dislike.

Also, please do not expect perfect or even nearly perfect grammar in my posts. I usually type these up early in the morning or late at night when the inspiration hits me. As long as its readable im not going to proofread for the appropriate participle. 

Questions? Comments??

ok then,,, lets go!

Why I defend DUI's

I often get asked the question – how can you defend drunk drivers? The question mark is often turned into an exclamation point when the person posing the question is in law enforcement. For an answer to this question, lets look at some common misconceptions about the DUI charge.

Most people wrongly believe that the punishment for a DUI is relatively minor. Heck, its barely  more than a speeding ticket right? Wrong.  Let take a person charged with say assault. That would most likely be a first time offender who, up until the assault, had led a jail-free lifestyle. The person charged with assault would most likely not receive any jail time and be placed on some type of unsupervised probation. He might also have to pay a small fine. But in the end that person could probably return to court after he completed his probationary time and ask that his arrest record be expunged.  A few hundred dollars, inconvenience, and attorneys fees and that’s about it.  In fact, statistics show that most defendants convicted of felony’s serve no jail time!

Now lets look at a first time DUI offender.  Even though this person had led a sterling lifestyle up till being arrested this person will face a mandatory 48 hour jail sentence. His conviction will automatically be a 100% sentence of 11months and 29 days to be served on supervised probation after he or she completes the required 48 hours in jail. His license would be suspended for an entire year. He would most likely have to attend a DUI school and be required to pay a mandatory fine.  His conviction can never be expunged from his record.

Oh but there’s more!  His auto insurance premiums will sky rocket as he is now in a “high-risk” category. Since he could and most likely is suffering from alcoholism he is prosecuted and punished for having a recognized medical condition.  Did you know that if you have a DUI conviction you are prohibited from entering Canada?? See the Immigration and Refugee Protection Act under Canadian law.

Another misconception about DUI is that the DUI defendant gets a “fair shake” from the justice system just like every other defendant. This is simply not the case.  Lets say someone accuses you of trying to extort them and they have a recording of an alleged phone call. At trial the prosecution uses a voice analysis machine and that machine says its your voice. The Judge then tells the jury that they must  convict you unless you prove your innocence!  That hardly sounds right in our American system of justice does it?? But when a Breathalizer machine in a DUI case shows results over the legal limit the judge tells the jury that the defendant is presumed to be under the influence!  In a DUI trial this type of instruction from the judge is not only legal, its required. 

What about intent? In all the great TV dramas everyone is asking if the defendant had the intent to commit the crime. Under DUI laws there doesn’t have to be any intent.  The defendant didn’t have to intend to become intoxicated nor did he have to have the intent to drive. 

What is also meant by “under the influence”? Its not illegal to drink and drive (yet) but only to drive while “under the influence”.  How is this mental state determined? Its medically impossible to go inside the brain and directly observe what is influencing it.  Evidence of being “under the influence” can only come from circumstantial evidence, indirect measurements, and opinions.  At this point in the conversation most will respond – that’s why we have the .08 presumption of intoxication! Yes, but how is a person to know what his blood alcohol level actually is? It is impossible to know with any degree of certainty what a blood alcohol level actually is at a given time. The difference between legal and illegal is a hairline. Imagine sitting on a 3 lane highway. The guy to your left is .07 – perfectly legal. The guy on the right is .08 – drunk.  You honestly believe you could tell the difference in the way each of those vehicle was being operated?

So what exactly does “arrested” mean?

While you may think that the definition of an “arrest” is pretty well cut and dry in the practice of law that definition isn’t so well defined. The traditional image of an arrest is your hands handcuffed behind your back while sitting in a police car.  That certainly would meet the definition of arrest in my book! In actuality there are two distinct meaning of an arrest in our justice system.  First is the common law definition of an arrest as “the apprehension or detention of the person of another in order that he may be forthcoming to answer an alleged or supported crime”.  Another common law definition of arrest is “the taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act which indicates an intention to take him into custody and subjects the person arrested to the actual control and will of the person making the arrest”.  While that sounds like a very adequate definition of arrest let’s compare the common law definition to the second definition – The Federal Constitutional meaning.

The Federal Constitutional meaning of arrest has been recognized by the United States Supreme Court and requires a greater degree of restraint than the common law definition. An arrest under the Federal definition requires probable cause to believe that a crime has or is about to be committed.  

Think of the “stop and frisk” that often occurs between citizenry and the police. If a cop stops some suspicious looking thugs outside of a business and pats them down for weapons has the officer effectuated an arrest? Under the strict definition of the common law then yes, the officer has conducted an arrest.  Under the Federal definition this interaction, which is legal under a lesser threshold than probable cause, is probably not a full blown arrest.  The officers need only a reasonable suspicion of criminal activity to conduct a pat down of the suspicious looking thugs.

Why is it so important to know when you’re under arrest exactly? Several constitutional protections kick in once a person is arrested. The admissibility of statements made to the police and even evidence obtained during a search can sometimes all depend on whether a person has been legally “arrested”.  

RIGHT TO RESIST ILLEGAL ARREST

There is no general right to resist an arrest by a law enforcement officer in Tennessee even if that arrest is illegal. The Tennessee Legislature has stated (and I believe correctly so) that the street is no place for determining the legality of an arrest. If a person knows it is a law enforcement officer who has stopped or arrested him, respect for the rule of law requires the submission to apparent authority. (See T.C.A. 39-16-602) Oh, but there is always an unless….

UNLESS  (1) the officer uses or attempts to use greater force than is necessary to make an arrest AND (2) the person reasonably believes that the force is immediately necessary to protect against the law enforcement officers use or attempted use of force greater than necessary. T.C.A. 39-11-611(e)

So officers when making an illegal arrest you should not use greater force than necessary in making that illegal arrest. And for those that are going to be on the receiving end of an illegal arrest remember that BOTH prongs(1&2) of T.C.A. 39-11-611(e) must be met before you have a viable defense to resisting an illegal arrest.

In an interesting side note, resisting arrest is only a class B misdemeanor (unless done with a weapon).   

Right to confront Lab technicians

The United States Supreme Court ruled on June 23, 2011 in Bullcoming v. New Mexico that a Defendant has the right to confront the lab technicians who perform blood analysis. In this case Mr. Bullcoming was arrested for DUI and gave a blood sample to the police. The police had the blood sample sent to their crime lab and determined that the Defendant was over the allowable blood alcohol limit for DUI. Mr. Bullcoming was about to have a trial on his case when the prosecution announced that they would not be calling the lab technician who performed the analysis at trial. The prosecution would be calling another lab technician who was familiar with the lab's testing procedures. The judge allowed the non testing lab technician to testify and Mr. Bullcoming was  ultimately found guilty of DUI.

The United States Supreme Court reversed Mr. Bullcoming's conviction stating that the Defendant has the absolute Constitutional right to confront the person who performed the testing on the Defendant's blood. This right is guaranteed by the Sixth Amendment of the Constitution. The wording in the Sixth Amendment stating "in all criminal prosecutions...the right...to be confronted with the witnesses against him." is commonly referred to as the "Confrontation Clause".

Prior to the Supreme Court's ruling a certified document or lab result from a reliable laboratory  could be admitted into evidence without the lab technician testifying as a "business report" which would not engage Sixth Amendment protections.

DUI - Double the legal limit. Can it be beat?

The Tennessee Legislature has created a presumptive level of intoxication when determining if a person is under the influence of alcohol while driving. The level is currently set at .08%, meaning eight-hundreths of one percent by weight of alcohol in the persons blood. The level of the BAC (Blood Alcohol Content) is determined by the accused submitting to a breath, blood, or urine test. The intricacies of each of these tests will be discussed in a separate post.
I often have potential clients come to me with blood or breath tests over the presumptive legal amount. Sometimes even twice the legal amount. The question  - can these types of cases be beat?

Short answer - yes. But it takes a skilled attorney to even recognize the potential problems and errors that are accompanied by these tests.

First it is important that the law only creates a rebuttable presumption. This means that even though the prosecution can introduce proof of the level of your BAC, the defense is free to also put on proof (evidence) that the test is inaccurate. A jury is always free to disregard the presumption if they believe the test is not accurate.

In blood and breath tests there are a wide variety of factors that come into play as to the accuracy of the tests. A skilled DUI attorney has spent countless hours reading and studying medical journals, instruction manuals, hospital policies, and even microwave particle analysis.

For example, in my last trial the prosecution called the hospital nurse who extracted the blood sample from my client. The nurse testified that the blood kit used came with two tubes in which the blood was to be placed. The nurse testified under cross examination that the tubes were equipped with grey top stoppers. His testimony was that it was VERY important to use tubes that had grey tops for blood analysis. The grey top tubes come with certain preservatives and anticoagulants that are necessary for storage of the blood. Next the officer testified for the prosecution. The officer testified that the color of the tube tops was orange.

As you can see, it is very important to hire a skilled DUI attorney who would even know to ask witnesses about the color of the tube tops. There are many attorneys who practice DUI defense who do not wish to educate themselves on the various blood testing techniques. Many begin advising their clients to plea guilty when they receive a BAC result over .08 without even investigating the facts.

On May 26,2011 a jury heard proof of a .16% BAC and returned a verdict of not guilty as to the charge of Driving Under the Influence. While I will never know why the jury chose to find my client not guilty, I like to believe that I was able to expose the errors that can and do occur.

Remember, any test is only as accurate as the way it was administered and scored. If you do not properly administer the test - the results are not valid. If you improperly score or evaluate the test - the results are invalid.  If you have been charged with DUI and your BAC is .08% or greater, don't just throw up your hands and give up. Hire an experienced attorney and evaluate the test.

Fourth Amendment Rights against search and seizure limited by Supreme Court

On May 16, 2011 the United States Supreme Court delivered an opinion that drastically changes the rights afforded to citizenry under the Fourth Amendment. The case, Kentucky v. King, involves officers smelling marijuanna inside a home and entering the home (forcefully) without a warrant. The officers entered the home under the guise that they believed that they heard sounds indicative of evidence being destroyed. While there are several legal issues present in the case the crux of the case is - did the police have exigent circumstances to enter the home without a warrant?
The majority of the Supreme Court Justices said yes. Only one Justice, Justice Ginsberg, dissented saying that the actions of the officers violated our rights to be free from search and seizure under the Fourth Amendment.
One of the most distubing points of the opinion to me was that the Court acknowledged that many states hold that even with exigent circumstances, the officers cannot circumvent the Fourth Amendment if the officers acted in bad faith and actually created the exigent circumstances.
Let me give an example of an exigent circumstance. Say an officer runs upon a burning building and believes that someone is trapped inside. The officer can legally enter the home without a warrant to save the unlucky occupant. In addition, since the officer has legally entered the home to save the occupant, any evidence the officer sees or obtains while inside the burning building can be used against the occupant (or whomever) in Court. I doubt that any legal scholors would say that the officers entry into the buring building under these circumstances could be considered "unreasonable".
Lets take it a step further now. Say an officer has been observing a suspected criminal for some time and cannot seem to get enough evidence to obtain a search warrant for the suspects home. What if the officer sets the suspects house on fire then enters the residence under the 'exigent circumstances" rule, saying that he believed that someone was inside the buring building. This extreme example is clearly a case of "bad faith" on the part of the officer.
The Supreme Court's decision in Kentucky v. Harris does away with the "bad faith" precautions. Under the decision in Harris, the intent of the officers in the creation or explotation of the exigent circumstances are not relevant in determining the validity of the warrantless entry.
In 2009, the Supreme Court said that search incident to arrest were limited to 'searching for furtherance of the crime committed" (see Arizona v. Gant). Having been in law enforcement for over a decade, prior to the decision in Gant, you never heard of officers testifying that they searched 'for evidence in furtherace of the crime committed". Since the Gant decision it seems like I hear officers testify to that rational weekly.
So after todays decision I fully expect to see more cases of warrantless entry into private residences without a warrant under the guise of "belief that evidence was being destroyed". You can mark my words on this one....

Field Sobriety Tests reliable?

Anyone who has ever watched a police based reality type tv show has seen a person accused of driving under the influence be required to perform a battery of tests. But what do these tests mean? i.e. what are they measuring? In my years as a police officer and as a criminal defense attorney I have witnesses officers conduct various types of theses so called sobriety tests. Tests that I have witnessed and have myself administered have included:

• The alphabet test - Requiring the accused to start on a particular letter and continue to another identified letter.

• The finger to nose - Requiring the accused to stand in one spot and touch the tip of the nose.

• Watching the pen - Correct terminology for this test is the 'Horizontal gaze nstagmus' Requires the accused to follow an object with the eyes.

• One leg stand - Requires the accused to stand on one leg for 30 seconds. 

• 9 step test - Requires the accused to walk 9 steps on a straight line.

• Coin pickup - Requires the accused to pick up several coins dropped on the floor.  

The list can go on and on. 

In the 1970's the National Highway Traffic Safety Administration conducted controlled studies to determined what tests were actually true measures of a persons sobriety. The results shocked the law enforcement community. Only three tests were determined to correlate with a persons intoxication.

Those tests are:

1. The Horizontal gaze nystagmus test
2. The one leg stand test
3. The nine step walk and turn test

What this means is that the other tests do not have a bearing on a persons sobriety. In other words, a completely sober person could fail the alphabet test, the finger to nose test, etc. Another shocking revelation of the NHSTA study that even with the three tests that correlate with intoxication, if the officer didn't instruct or administer the tests properly then all reliability of the test is gone. 

Even these three tests are not 100% reliable. The one leg stand test and the nine step test are less than 70% reliable. (Meaning that 30% of the time a completely sober person would fail these two tests). The Horizontal gaze nystagmus test is the most reliable test of intoxication but in Tennessee that test is generally inadmissible against the accused.

In a study conducted by Clemson University in 1994 a group of 21 completely sober individuals were instructed to perform field sobriety tests. Fourteen trained officers watched videos of these field sobriety tests and gave their opinion as to intoxication based on the persons performance on the video. (the officers were not told that the subjects were completely sober).  46% of the officers responded that persons they viewed were under the influence of an intoxicant. 

So, knowing that a completely sober person can ultimately fail these so called sobriety tests we must ask the question - can a citizen refuse to perform these tests when asked by law enforcement? The short answer in Tennessee is  - yes. There is currently no law of failing to do the tests. HOWEVER, this does not mean that the officer cannot arrest you for DUI. In fact, your failure to conduct these tests can be used against you in court as "consciousness of guilt".  I personally feel that the ability of the prosecution to use a refusal to take so called sobriety tests  as "consciousness of guilt" is a terrible tragedy.  I hope that the Tennessee Courts will soon overturn previous rulings allowing this practice.

BUI

This weekend I ran across the TWRA (Tennessee Wildlife Resource Agency) who was patrolling the Lake on boats. It always surprises me that many agents with TWRA do not understand the Boating Under The Influence Laws in Tennessee. While boating under the influence is unsafe and should never be condoned there must be awareness of what actions actually constitute a crime. Especially the serious crime of BUI.

Tennessee 69-9-217 States:

(a) It is unlawful for any person or persons to operate any vessel subject to registration or any commercial vessel as defined in this section on the public waters of the state while under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system.

While this language is very similar to the motor vehicle DUI law there is a very distinct difference which appears in the very last sentence of the statute and is often overlooked by law enforcement.

  The last section of T.C.A. 69-9-217 states:

"(n) The provisions of this section do not apply to any vessel that is moored or anchored."

This means that any boat or "vessel" that is anchored down or is moored at a marina is not subject to BUI enforcement. Despite this being the law I often hear of horror stories of the man fishing off his boat while docked at a marina and being carted off to jail for BUI. I also hear numerous stories of party goers who tie several boats together in a secluded cove and become intoxicated as the day wears on.  However, if these boats are anchored the BUI provisions should not be applied to the occupants.