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....