Tennessee Criminal Lawyer Blog

Understandably, one of the most pressing questions facing any person convicted of a criminal offense is some version of “How can I avoid jail time?” The unfortunate truth for many of those convicted of a criminal offense is that jail time is sometimes impossible to avoid. Luckily, the State of Tennessee recognizes several mitigating factors that can serve to aid defendants in obtaining shorter sentences or possibly even qualify for an alternative sentencing method and avoid jail time altogether. One such mitigating factor recognized by Tennessee is that the defendant had a mental or physical condition that significantly reduced his or her culpability for the offense. It should be noted that the voluntary use of intoxicants does not qualify under this factor. Thinking that you are a werewolf, however, probably does.

A girl from San Antonio, Texas is under investigation by authorities after she admitted to decapitating a dog, boiling its head, and mounting the head on her wall. The girl, who literally claims to be a werewolf, and goes by the name Wolfie Blackheart, told the authorities that she only took the head after finding the dog dead and that she would never hurt the dog because she herself is a canine. This is important because in Texas, just as in Tennessee, the statutes pertaining to animal cruelty and intentional killing of an animal apply by definition only to living creatures. It is unknown whether Wolfie will be charged at this time.

Continue reading "Mitigating Factors: "I'm a Werewolf"" »

For many people, the phrase “you have the right to remain silent…” is just a snazzy saying they hear on police dramas. For others, however, it is an important reminder of a Constitutional right that can be extremely beneficial if invoked when necessary. The right to remain silent derives from the Constitutional protection against self-incrimination afforded to criminal suspects. In its simplest form, it is the right to refuse to say anything that may implicate oneself as being involved in criminal activity. While the famous phrase quoted above is part of a standard Miranda warning that is typically given when a suspect is being arrested, the right to remain silent extends farther than that and can be invoked at routine traffic stops if necessary.

A good example of how this right may be beneficial comes from Crestview, Florida, where a twenty-five year-old man was recently arrested for possession of marijuana with intent to distribute. The man was pulled over for speeding, at which point the officers noticed that the man seemed nervous and that there was a strong odor emanating from his vehicle. When police asked the man if he had anything illegal in the truck, he replied with an ill-advised “I got $2,000 worth of weed in the truck,” immediately putting an end to the suspense and giving the officers probable cause to arrest him. He also admitted to selling marijuana on the weekends. Needless to say, there will be little trouble convicting the man on the charges unless there is some constitutional error with the stop.

Continue reading "The Right to Remain Silent" »

A New Jersey man pleaded guilty today to assault by automobile, two counts of aggravated assault and driving while intoxicated stemming from an accident in which the man’s drunk driving was responsible for seriously injuring three women. At the time of the wreck, which occurred on April 18, 2009, the man’s blood-alcohol content was reportedly twice the legal limit. According to his plea deal he will be facing up to five years in prison, a far cry from the decades of prison time he would have been facing had he gone to trial. The injuries to the victims in his case were severe. One victim in particular had her skull detached from her spinal column and miraculously survived. She also suffered brain trauma and has undergone fifteen operations as a result of the accident. The personal injury ramifications of this incident are discussed here.

This situation is a perfect example of how plea bargaining can aid defendants in avoiding lengthy sentences. In situations like this one, where the defendant will almost certainly be found guilty considering all the circumstances, the defendant may be better off pleading guilty and foregoing the trial process. The downside of pleading guilty is that the defendant waives several constitutional rights that are generally available to them, such as the right to a trial by jury, the right to present witnesses in their favor, and the right to confront witnesses against them.

Continue reading "Plea Bargaining Helps Man Avoid Lengthy Sentence" »

The scope of Minnesota’s DUI statute was extended substantially last Thursday when the Supreme Court of Minnesota upheld a DUI conviction for a man who was found intoxicated behind the wheel of an inoperable vehicle. Officers found the man asleep in his legally parked car at his apartment complex. The engine was cold to the touch, giving no indication that the vehicle had been driven, and the keys were in the console instead of the ignition. The man admitted to having consumed a multitude of beers earlier that night. He was arrested and found to have a blood-alcohol content of .18, well over the legal limit. The officers inserted the keys into the ignition and tried to start the car, but it would not start and was inoperable at the time. The defendant was convicted of DUI and appealed at every turn, eventually taking his case all the way to the Minnesota Supreme Court on the argument that he could not be convicted of DUI since he was behind the wheel of a vehicle that could not be driven. With this most recent ruling, the Minnesota Supreme Court has decided that the operability of a vehicle is not a bar to a DUI conviction.

The good news for defendants in Tennessee (assuming the police intervention in this case was legal, which is questionable) is that Tennessee law currently does not recognize that a defendant can get a DUI behind the wheel of an inoperable vehicle. In fact, Tennessee courts have implied in several opinions that the inoperability of the vehicle would in fact bar a prosecution for DUI since a defendant cannot technically “control” a vehicle that is inoperable. It should be noted, however, that the vehicle will have to be literally inoperable; being in park or having the keys lying in the console alone is not enough. Such circumstances merely indicate that the driver was not operating the car at that particular moment. It is thus entirely possible that they have previously been operating the vehicle while intoxicated or were about to operate the vehicle while intoxicated. This law may change some time in the future, but as it now stands, being behind the wheel of an inoperable vehicle is a defense to a DUI charge in Tennessee.

Source: http://thenewspaper.com/news/30/3030.asp

Criminal defendants, for various reasons, are often unhappy with the way at least one issue was handled by the court at trial, especially if the trial results in a conviction accompanied by a lengthy prison sentence. Luckily for criminal defendants they have the right to appeal the trial court’s decision as long as they comply with certain procedural requirements and avoid certain pitfalls that cause them to lose that right. One such pitfall is waiving the right to appeal. A recent case heard by the Tennessee Court of Criminal Appeals illustrates how this works.

The defendant in this case pleaded guilty to obtaining a controlled substance by forgery and received a sentence of three years. The defendant felt that the sentence was too harsh, so he wished to appeal. Unfortunately for him, the judge had presented him with a waiver of his right to appeal at the conclusion of the sentencing hearing, and the defendant was placed under oath, freely and voluntarily asserted that he wished to waive his right to appeal, and signed a written waiver confirming that decision. By waiving his right to appeal, the defendant necessarily waived his right to appeal the sentencing decision reached by the trial court. Thus, the Tennessee Court of Criminal Appeals was unable to consider his contention that the sentence was too harsh.

Continue reading "Waiving the Right to Appeal" »

The mitigating factor discussed in today’s blog can be found in T.C.A. section 40-35-113(10) and reads:

“The defendant assisted the authorities in locating or recovering any property or person involved in the crime;”

This can be a very useful mitigating factor for defendants, and is one that has been extended by Tennessee courts to encompass more than what is revealed in the statute. For example, this factor has been extended to apply where the defendant assists the authorities in locating not only other persons involved in committing the crime but also persons or property who were the victims of the crime. This would technically apply even where the victim of the crime is deceased and the defendant assisted authorities in locating the body.

Continue reading "Mitigating Factors: Assisting the Authorities" »

One potential mitigating factor that defendants can use at sentencing in an effort to get a reduced sentence is where “the defendant, although guilty of the crime, committed the offense under such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated the criminal conduct.” This mitigating factor is one that will not be used all that often because it requires that the circumstances surrounding the conduct be unusual, but when such unusual circumstances give rise to the criminal conduct in question, this factor can be highly effective.

One example of when this factor might be applicable comes from a somewhat bizarre story that took place on Monday in Syracuse, New York, where a man was apparently hanging out on a street corner while intoxicated when he became the victim of a random drive-by shooting. The man, wounded in his shoulder by a single gunshot, then tried to drive himself to the hospital. Unfortunately, he began his trek on the wrong side of the road and failed to correct that mistake, smashing into another vehicle. He was charged with DWI. The personal injury law consequences of this ill-fated decision are discussed here.

Continue reading "Mitigating Factors: Unusual Circumstances" »

Today’s blog unsurprisingly continues with the recent focus of our criminal blogs on the mitigating factors defendants may be able to use to receive a more favorable outcome at sentencing. These mitigating factors are recognized by the laws of the State of Tennessee as factors that tend to mitigate a defendant’s responsibility for a crime and may lead to the defendant receiving a less severe sentence following a conviction.

One such mitigating factor is explained as: “Before detection, the defendant compensated or made a good faith attempt to compensate the victim of criminal conduct for the damage or injury the victim sustained.” This could occur in a myriad of ways. For example, someone could have stolen a significant amount of money from a friend or employer and went back to that person before being discovered by the authorities and offered to pay them back the money or set up some sort of payment plan. It could also happen if a person was driving while intoxicated and crashed into another person’s home, causing damage to the structure, and before being discovered by authorities, the offender went to that person’s house and offered to pay for the necessary repairs or offered to make the repairs himself. Basically, this mitigating factor is pretty straightforward: if the offender offers to make amends or repay the victim somehow before being discovered or detected by the police, then the offender may be able to use this factor to obtain a more lenient sentence following conviction.

Continue reading "Mitigating Factors: Righting the Wrong before Detection" »

Our blog has recently focused on mitigating factors and with good reason. Statutorily-recognized mitigating factors are a tremendous tool that defendants can use in Tennessee to obtain more favorable treatment at sentencing. Sometimes this means a defendant can obtain a sentence below the presumptive sentence, and sometimes mitigating factors simply serve to counteract the effect of enhancement factors, allowing the defendant to avoid a sentence harsher than the presumptive sentence.

One of the mitigating factors that is especially applicable today can be found in T.C.A. section 40-35-113(7) and reads that one mitigating factor can be that “the defendant was motivated by the necessity to provide necessities for the defendant’s family or the defendant’s self.” The applicability of this factor, however, will be largely dependent on the circumstances. For example, a defendant who breaks in to an electronics store and steals a plasma TV will have a harder time convincing the sentencing judge that this factor should apply than will a defendant who is caught shoplifting baby food or diapers. That is not to say that the former defendant would never be able to convince the judge that this factor applies to the crime they committed, but judges will clearly be more accepting of the latter.

Continue reading "Mitigating Factor: Necessity" »

Over thirty years ago, the United States Supreme Court decided the case of Delaware v. Prouse, where they tackled the issue of arbitrary traffic stops of drivers by police officers or other similar government officials. Although over three decades have passed since the decision, the ramifications of the case are still extremely pertinent today. In Prouse, the Supreme Court held that police officers cannot arbitrarily or randomly stop vehicles in order to check whether the driver is licensed and check the registration status of the vehicle. Such a stop violates the right to privacy guaranteed by the United States Constitution.

The Court refused to give law enforcement unbridled discretion to pull vehicles over on a whim or a hunch. This has been extrapolated to mean that officers must have probable cause to initiate a traffic stop of a vehicle. The rule in Tennessee that flows from this reasoning is that a police officer wishing to make an investigatory stop (meaning a stop where the officer has not witnessed the vehicle commit a traffic violation) must have reasonable suspicion, supported by specific facts, for making the stop or else the stop is illegal.

Continue reading "Arbitrary Traffic Stops in Tennessee" »

Our blog today once again delves into the mitigating factors that are available for use by a criminal defendant at sentencing by exploring the mitigating factor of provocation. Tennessee law provides that the fact that “the defendant acted under strong provocation” can be used as a mitigating factor by the sentencing court when determining a defendant’s sentence. Basically, this factor allows the defendant to claim that he or she would not have committed the offense if not provoked by another person or factor. Note that the provocation must be “strong,” meaning the defendant will not be able to claim he or she was provoked if the defendant beats someone to death with a tire iron for cutting line at the movies.

The reaction will have to at least seem proportional to the provocation for this mitigating factor to legitimately apply. This, of course, will depend on both the offense for which the defendant has been convicted and the strength of the alleged provocation. One type of case where you could probably expect to see this factor used would be where one spouse attacks or kills another spouse or their paramour after discovering an affair. The defendant in such a situation would undoubtedly try to say that he or she experienced something so angering or upsetting, like catching the illicit lovers in the act or maybe just discovering the affair, that it was not at all unreasonable to believe that someone who had such an experience could be driven to commit the offense of murder. This mitigating factor will frequently be used in cases involving violent crimes, as defendants often feel they were provoked by someone or something. The bad news for defendants attempting to rely on this factor is that the provocation will have to be extreme in order to be considered sufficient to provoke a serious offense like murder. However, like all mitigating factors, provocation should be argued at sentencing whenever possible in the event that it serves to reduce the defendant’s sentence, even if it seems like a long shot.

Many of our previous blogs have discussed mitigating factors that may be useful to defendants in the sentencing phase of their criminal trials and this one continues that trend. The fact that the defendant played a minor role in the offense for which he or she was convicted is a useful mitigating factor recognized by the State of Tennessee that may serve to reduce the defendant’s sentence. To make use of this factor, the defendant simply needs to prove that he or she was convicted of an offense in which he or she played a minor role as compared to others who may have played a more significant role in the offense. Basically, the defendant is saying that other people were more responsible for, or played a bigger part in, the commission of the offense than the defendant.

A good example of this is provided by a botched robbery attempt that occurred in Conroe, Texas recently. The robbery was initially scheduled to be a four-man operation, but all four did not participate. The suspected getaway driver, exhibiting the kind of calm under pressure that most only dream of, was found by police sleeping soundly a couple of blocks from the jewelry store that was the target of the robbery attempt. Evidence in the car reportedly linked him to the robbery. His services, however, were not needed as the other participants failed to disable the alarm and were apprehended before they could execute the burglary.

Continue reading "Mitigating Factors: Minor Role in the Offense" »

Statutorily-recognized mitigating factors are among the most powerful tools available to a defendant seeking to argue for a reduced sentence. These factors allow the defendant to claim that certain aspects of his or her alleged criminal activity fits into one or more categories recognized by the State of Tennessee as behavior or circumstances that make an offense less serious than it otherwise would be. One statutorily-recognized mitigating factor is that the offense did not threaten or cause serious bodily injury. Stated another way, one could simply say the crime was one of non-violence.

It is not difficult to deduce the reasoning behind the recognition of non-violence as a mitigating factor. Offenses are clearly more serious where they endanger someone’s life, put someone at risk of harm, or actually injure or kill a victim. Tennessee thus allows a defendant to use the fact that he or she did not injure, or pose the risk of injury to, a victim during the commission of the criminal activity in question.

Continue reading "Mitigating Factors: Non-Violence" »

Bucking the long-standing tradition of teenage girls asking their parents for money when they needed some, a couple of young girls, one age twelve and the other about fourteen or fifteen, decided to “ask” the bank instead. The two girls walked into an Ohio bank earlier this month around 3 p.m., apparently unarmed, and gave the bank teller a note (which may or may not have been written in bubble letters with hearts dotting the letter “i”) demanding money. The bank teller complied and the girls fled the scene with an unidentified amount of money. Thus far, the girls have been able to avoid an extensive search by law enforcement officials.

While the age of the bank robbers is notable from a publicity standpoint, it is also relevant from a criminal law standpoint. In Tennessee, sentences are determined by starting at the presumptive sentence for a given offense and then using mitigating or enhancement factors to increase or decrease the sentence as warranted. One statutory mitigating factor that can be used to decrease a sentence reads thus: “the defendant, because of youth or old age, lacked substantial judgment in committing the offense.”

Continue reading "Young Girls Suspected in Bank Robbery" »

As discussed in some of our previous blogs, searches of persons or property by law enforcement officials are generally considered to be invasions of privacy and will be considered unconstitutional (meaning evidence gathered from the searches may be inadmissible in court) unless the law enforcement official conducting the search has obtained a search warrant by demonstrating probable cause that the search will uncover evidence of criminal activity. However, there are several legally recognized exceptions that allow searches to be conducted without search warrants where certain conditions exist. One of these exceptions is known as the “vehicle exception” to the search warrant requirement.

The vehicle exception allows a law enforcement official to conduct a warrantless search of a vehicle if the officer has probable cause to believe evidence of a crime will be found in the vehicle and external circumstances exist that necessitate an immediate search of the vehicle. Such external circumstances usually exist due to the very nature of automobiles, because an officer who lets the vehicle drive away will more than likely never see the vehicle or the evidence inside it again. To have probable cause to search a vehicle in Tennessee, a law enforcement officer must have reasonable suspicion that evidence of a crime will be found in a vehicle. This suspicion must be based on a specific factual basis, however, and cannot be based solely on a hunch or “gut feeling” of the officer. The factual basis for a search must also exist before the search is conducted, meaning an officer can’t search a car based solely on his or her gut feeling that drugs will be found in the car and then use the fact that drugs were found in the car as the basis for the initial search.

Criminal defendants who have had their vehicles searched without a warrant may be able to get the evidence uncovered during those searches suppressed if the search was not conducted in compliance with the vehicle exception. If the officer lacked probable cause to initiate the search or if the external circumstances described above did not exist at the time of the search, the search may be unconstitutional, meaning the fruits of the search may be inadmissible against a defendant at trial.

Criminal sentencing can be a confusing issue for many defendants. For example, if a defendant is looking at a Class B felony conviction, he or she will be looking at eight to thirty years. Obviously there is a huge difference between serving eight years in prison and serving thirty years in prison, meaning the decision-making process behind determining where in the range of possible sentences to sentence a defendant is of primary importance in criminal cases.

Tennessee law sets forth a “presumptive sentence” for each of its five felony classifications. Being the “presumptive sentence” means that sentence is the appropriate one for that felony classification in the absence of mitigating or enhancement factors. Most importantly for criminal defendants, the use of a presumptive sentence forbids the court from imposing a higher sentence unless the sentencing court determines that enhancement factors exist by a preponderance of the evidence. For Class B, C, D, and E felonies, the presumptive sentence is the minimum sentence in the applicable range, meaning:

• For Class B felonies, the presumptive sentence is eight years


• For Class C felonies, the presumptive sentence is three years


• For Class D felonies, the presumptive sentence is two years


• For Class E felonies, the presumptive sentence is one year

Continue reading "Presumptive Sentences in Tennessee" »

A fifty-five year-old bus driver from New York recently pleaded guilty to child endangerment and driving while intoxicated after she took students on a terrifying bus ride while reportedly driving a school bus while intoxicated. Students apparently begged the driver to stop because she was in no condition to operate the school bus. The driver felt that the students were overreacting and continued to drive, reportedly speeding, running over a mailbox, and rolling backwards down a hill. Some students finally opened the emergency door at the back of the bus so they could get out, putting a stop to the incident. Luckily, neither the bus driver nor any of the passengers suffered any injuries. The bus driver’s attorney said that her actions were caused by a bad reaction between alcohol and some prescription medication she was taking. The personal injury issues concerning her conduct are further discussed here.

DUI has been discussed at length in some of our previous blogs, so this blog will take an alternate path and deal with child endangerment. Tennessee’s codification of the crime of child endangerment can be found in T.C.A. section 39-15-401(c). This statute deals primarily with child abuse cases, but the statute is constructed in such a way that it could technically be applicable to the bus driver’s situation. The most interesting thing about this statute from a criminal defense standpoint is its requirement that a person “knowingly” expose a child to personal injury in order to be convicted of the offense of child endangerment.

Continue reading "Child Endangerment: "Knowing" Requirement" »

A statute of limitations is a statute that declares a maximum length of time during which a legal claim can be made after which time it is no longer available. For example, Tennessee’s statute of limitations on petitions for post-conviction relief in criminal cases is one year from the date on which judgment becomes final in cases where no appeal is taken. As a general rule, petitions for post-conviction relief that are filed after the statute of limitations has run are time-barred and the court will not consider them. However, there are three statutorily recognized exceptions that can work to defeat the statute of limitations and enable a defendant to bring an untimely petition for post-conviction relief:

1. Claims based on an appellate court ruling concerning a constitutional right not recognized at the time of the trial and given retroactive effect by the appellate courts


2. Claims based upon newly-discovered evidence which establishes that the petitioner is actually innocent of the crime


3. Claims which arise out of a situation where the petitioner received an enhanced sentence for a crime based on previous convictions which were later held to be invalid.

Continue reading "Statute of Limitations: Exceptions" »

In a criminal trial, there is a substantial difference between questions of law and questions of fact. While the issue of what distinguishes the two questions is ultimately more complex than the examination necessary for the purposes of this blog, it will be sufficient here to say that questions of law are decided by the court while questions of fact are decided by a jury. This means that the jury can decide not only whether the fact is true or false, but how much weight should be attributed to the fact for purposes of making a guilt or innocence determination.

One issue that is a question of fact is the result of a field sobriety test performed pursuant to a DUI stop. In State v. Lowe, the defendant was arrested and charged with a DUI for, among other things, failing to perform a field sobriety test adequately. The defendant apparently was administered the “walk-and-turn” test and the “one-legged stand” test and was unable to successfully perform either. The defendant argued that the results of such tests should not be considered by the jury because the police officer responsible for administering the tests testified at trial that the results of both tests are less than 70% accurate. The court correctly ruled that both the evidence regarding the defendant’s performance on such tests and the ability of the tests to measure a driver’s impairment are issues of fact for the jury to decide.

Continue reading "Field Sobriety Test Results are Issues of Fact" »

In a case styled State v. Williams, the Tennessee Court of Criminal Appeals recently overturned a trial judge’s decision to revoke a defendant’s probation by holding that it was based on the wrong standard of proof. The defendant had previously pleaded guilty to being an accessory after the fact and was sentenced to one year in the county workhouse. Rather than being forced to serve the time, the defendant’s sentence was suspended and the defendant was placed on supervised probation. Soon thereafter, the defendant was arrested and charged with being a felon in possession of a handgun and several felony drug offenses. As a result, a probation violation warrant was issued and a trial judge revoked defendant’s probation based on the finding that there was probable cause that the defendant had committed the offenses with which he had been charged. The defendant contended that the trial judge had improperly revoked probation based on the wrong standard of proof. The Tennessee Court of Criminal Appeals agreed.

T.C.A. §40-35-311 provides that a trial court may revoke a suspended sentence and reinstate an original sentence if it finds by a preponderance of the evidence that the defendant has violated the terms of his probation. This means that a trial court must go beyond the mere finding that there is probable cause to believe a defendant violated probation by committing new offenses but must instead determine that the defendant committed the offenses by a preponderance of the evidence. Probable cause basically means that a reasonable person would have cause to believe the defendant committed the offenses, while the “preponderance of the evidence” standard basically means it is more likely than not that the defendant committed the offenses. While the difference between these two standards seems to be minimal, it can actually be significant and is extremely important in situations like probation revocation where the tougher standard must be met.

For example, if a person who had committed several previous drug offenses were charged with a new drug offense, any reasonable judge could believe that the accused had committed the offense based on his history, so probable cause would probably exist. However, without more evidence, it would be impossible to say that it is “more likely than not” that the defendant is guilty of the crime charged. In other words, while you can certainly have a reason to believe someone could have committed a crime based on their history, you cannot say that it is more likely than not that they did in fact commit the crime without further evidence.

Thus, the trial judge in the case above erred by using the wrong standard of proof. Persons on probation in Tennessee cannot have their probation revoked merely because there is probable cause to believe they have committed a new offense, because the Tennessee statute requires that it be shown by a preponderance of the evidence that the defendant committed a crime before probation can be revoked. Attorneys in Tennessee who feel that the wrong standard was used to revoke their client’s probation can look to Williams for guidance.

Source: State v. Williams, 35 TAM 1-38, 10/30/09, Jackson, Glenn, 4 pages.