Tennessee Criminal Lawyer Blog

In what is a somewhat bizarre case, the Tennessee Supreme Court will decide soon what type of speech qualifies as a request for an attorney. A defendant is constitutionally guaranteed the right to an attorney but in order to exercise that right, the defendant must make a clear and unequivocal request for an attorney so that law enforcement officials know that an attorney is being requested. In State v. Turner, the Tennessee Supreme Court will take a look at just how clear and unequivocal that request has to be.

In Turner, the defendant was arrested for murder and robbery and taken into custody. While in custody, he gave a statement to police admitting his involvement in the crimes. However, defendant apparently made several different statements indicating his desire for a Tennessee criminal defense attorney during the interrogation process, which seemed to indicate that he was asserting his Miranda right to counsel and did not wish to proceed further into the process without an attorney. The defendant made statements such as “Are you my lawyer?”; “How quick will my lawyer get here?”; Will my lawyer get here today?”; Do I need to get a lawyer?”; and “Get me a lawyer.”

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Cases that deal with constitutional rights are often some of the most difficult to analyze and thus often find their way to the highest courts. As such, it is no surprise that a case dealing with a defendant’s constitutional right to confrontation would make its way to the Supreme Court in a case on its upcoming docket styled State v. Franklin, especially considering that what is at stake may be a prison sentence in excess of a decade. To quickly summarize the constitutional right at issue in this case it is sufficient to say that when a witness offers important testimony or evidence against a defendant in a criminal case, that defendant has a constitutional right to confront the witness. This does not mean that the defendant gets to personally confront the witness like the witness said something about the defendant’s mother, but rather that the defendant gets the opportunity to cross-examine the witness at trial rather than just having to accept the damaging testimony or evidence without further questioning.

In the case detailed above, the state introduced testimony from a gas station clerk stating that after the gas station had been robbed, the clerk had went to a nearby witness and asked him to write down the license plate number of the van he had seen the suspect drive away in. The clerk then testified to the license plate number she had seen the witness write on the piece of paper. This raised an obvious confrontation issue because the defendant would thus have been forced to accept the facts that the witness had seen the defendant get into the van and had seen the license plate number of that van accurately without being availed of any opportunity to cross-examine the witness to see if he or she was actually in a position to see the license plate, was able to see well enough to make out the license plate from that distance, etc. The trial court allowed the testimony, but it was overruled by the intermediate appellate court. The Tennessee Supreme Court will now have to decide which one of those courts made the correct holding.

Source: State v. Franklin, 34 TAM 5-23 (Tenn.Cr.App. 2009), appeal granted 6/15/09, oral argument 2/12/10.

The right to privacy is one of the most important rights guaranteed to Americans by the United States Constitution, and implicit in that right are many constitutional guarantees that are protected by the courts. One such right is the right to be free from unreasonable searches and seizures at the behest of law enforcement. The right to privacy in this context basically guarantees that in most situations a law enforcement official cannot make a warrantless entry unsupported by probable cause into a person’s home for the purposes of searching for or seizing evidence.

The right to privacy, however, does have some limitations. One of those limitations is that the right does not exist where the person has no reasonable expectation of privacy. There can be a plethora of reasons for why a person may have a diminished expectation of privacy, and one of those reasons is set to come before the Tennessee Supreme Court on its upcoming docket. In an upcoming case styled State v. Talley, the Court will decide if the defendant had a reasonable expectation of privacy with regard to the common areas of his condominium complex, a common area to which many third parties had unrestricted access. In this case, detectives had performed a warrantless search of the common areas by asking a third party if they could come inside the condominium and look around and obtaining consent to do so. They then gathered evidence that was in plain view in order to provide them with probable cause to execute the search later. The defendant contended that the search was unconstitutional, but his motion was unsuccessful.

While it is true that defendants do not generally have a reasonable expectation of privacy with regard to places where a numerous amount of third parties have unfettered access, some circumstances in this case suggest that law enforcement officials may have overstepped their constitutional boundaries. For example, they specifically went to the defendant’s condominium and knocked on the door, asking if the defendant was home. Upon learning that he wasn’t home, they asked to be let in anyway while concealing the fact that they were detectives. This was done deliberately in an attempt to gather evidence that would provide probable cause for a more extensive search at a later time. Thus, law enforcement officials here essentially exploited the fact that the defendant was not home to manufacture probable cause without first obtaining a search warrant. The Court’s ruling on this one should be intriguing, as it pits the strength one of the most important rights guaranteed to citizens by the Constitution against the necessity of law enforcement officials having discretion as to how they perform their work.

Source: State v. Talley, 34 TAM 33-16 (Tenn.Cr.App. 2009), appeal granted 11/23/09, oral argument 2/11/10.

The validity of traffic stops is a frequently contested issue in Tennessee criminal law, and with good reason. In many cases, it is the act of initiating a traffic stop that leads to charges of driving under the influence, simple possession, possession with intent to distribute, and many others. The United States and Tennessee Constitutions protect drivers from unreasonable searches and seizures, which has basically been interpreted in Tennessee to mean that a police officer must have “reasonable suspicion,” to believe the vehicle or its occupants are involved in criminal activity in order to stop the vehicle. Such suspicion can be provided by many different circumstances, such as the driver violating a traffic ordinance or driving suspiciously in some cases.

In State v. Brotherton, the Court will decide if a police officer had reasonable suspicion to stop the defendant’s vehicle based on the fact that the taillight was not in “good condition” because it was projecting a glaring or dazzling light. In this case, the defendant had broken the taillight and attempted to repair it with red repair tape. The intermediate appellate court held that the taillight was in proper working condition in that it provided proper warning and safety measures to other motorists and thus was in “good condition.” Thus, it held that the officer did not have probable cause for the stop. As such, the stop would have been illegal and any evidence of criminal activity uncovered during the stop would probably be suppressed.

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When the Tennessee Supreme Court hears a criminal case, it has the ability to redefine, reinterpret or otherwise affect an area of Tennessee criminal law in a substantial way. Thus every case that comes before the Court is worthy of discussion since it may have a lasting impact on the criminal framework. One such case, State v. Brown, will consider two separate issues that are fairly common in the criminal context.

The first issue is that of lesser included offenses. A lesser included offense is an offense of which all the elements are included in a greater offense, but the greater offense has additional or different elements and a more severe penalty (with rare exceptions). In this case, the defendant contended that the trial court erred by failing to instruct the jury as to criminally negligent homicide when the defendant was charged with felony murder. Instruction as to lesser included offenses can be key for defendants in cases like this, primarily because it informs the jury that there are lesser offenses for which the defendant can be convicted. The jury may not be willing to let a defendant walk away without facing some sort of punishment in some situations, so they may be tempted to convict the defendant of a more serious offense than is actually fair in order to prevent the defendant from walking away scot-free. The defendant will try to convince the Tennessee Supreme Court that the trial court erred in failing to let the jury know that a lesser included offense was available rather than just the felony murder charge he was facing.

Continue reading "More on the Upcoming Tennessee Supreme Court Docket" »

The Tennessee Supreme Court has included a case on its upcoming docket in which it will decide whether there is sufficient evidence to convict a defendant of tampering with evidence where there is no eyewitness to the actual act of alleged tampering. The defendant was convicted for tampering after he allegedly flushed cocaine down the toilet when police officers entered his home. No one apparently ever saw the defendant flush the cocaine down the toilet, but the defendant got up and ran from the room when he saw police and then the police heard the toilet flush. Officers testified that when they apprehended the defendant just after they heard the toilet flush, he was not undressed at all and there was water on the toilet seat, leading them to think something had been flushed. Since cocaine was found throughout the house, the officers concluded it was likely cocaine.

This case presents a complex issue, because arguments for both sides have some merit. From the point of view of the state, tampering with evidence will almost always be out of view of authorities, and its goal is to be undetectable. Thus, it will often be necessary to draw inferences from the surrounding facts to prove tampering rather than requiring an eyewitness every time.

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DNA evidence is a critical component of some criminal investigations, and it is an essential component of most criminal investigations that take place on many popular network television shows. The acquisition of DNA evidence is often key in many criminal cases because the composition of the DNA in an individual is a combination of the DNA of that individual’s parents, and, unless that person has an identical twin, his or her DNA is unique. Thus, DNA evidence has been used not only to prove that persons were guilty of crimes but also that many individuals who were wrongly convicted in the past were actually innocent all along. Despite the advances DNA technology has offered to the world of criminal investigation, it is often not a foolproof method for determining whether someone committed a crime. The Tennessee Supreme Court has a case on its upcoming docket in which it will hear an issue regarding the strength of DNA evidence.

In the upcoming case styled State v. Lewter, the Tennessee Supreme Court will decide if the evidence was sufficient to convict the defendant of burglary and theft where the only evidence linking the defendant to the offense was a shirt that was left behind which contained skin cells matching the defendant’s DNA. The defendant was obviously convicted of the offenses based on this evidence at the trial court level or he would not have appealed. On appeal, the intermediate appellate court ruled that DNA is not like a fingerprint or blood sample in that its presence alone cannot prove that the defendant was present at the time of the theft and overturned the conviction. The Tennessee Court of Criminal Appeals agreed, and the case now comes before the state’s highest court.

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The Tennessee Supreme Court is set to hear a case that could significantly expand the scope of the crime of theft in the state. In a case styled State v. Butler, the defendants are charged with theft of services for allegedly underreporting their income in order to obtain cheaper public housing. The trial court dismissed the indictment based on the fact that the public housing obtained by the defendants does not fall within the definition of “services” under the theft of services statute.

The Tennessee Code Annotated defines “services” for the purposes of theft of services in T.C.A. section 39-11-106(35). The term “services”:
“includes labor, skill, professional service, transportation, telephone, mail, gas, electricity, steam, water, cable television or other public services, accommodations in hotels, restaurants or elsewhere, admissions to exhibitions, use of vehicles or other movable property, and any other activity or product considered in the ordinary course of business to be a service, regardless of whether it is listed in this subdivision (35) or a specific statute exists covering the same or similar conduct”

Continue reading "State's Highest Court to Hear Theft of Services Case" »

It seems schools these days are more dangerous than ever before, with stories of school-related violence constantly finding a place on the news and in the headlines. Such violence comes in many different forms, whether it be by a student or a student’s parent against a teacher, by a teacher against a student or another teacher, or often even by a student against another student. Many states have laws that specifically target school-related violence, and Tennessee is one of them. One specific law Tennessee has enacted with this goal in mind can be found in T.C.A. section 39-13-114 which concerns communicating a threat concerning a school employee.

The above-referenced statute applies to basically any institution that could be considered a “school,” including colleges and universities. It essentially has four elements:

• “ (b) A person commits the offense of communicating a threat concerning a school employee if:
  
  1. The person communicates to another a threat to cause the death of or serious bodily injury to a school employee and the threat is directly related to the employee's scope of employment;
  
  
  2. The threat involves the use of a firearm or other deadly weapon;
  
  
  3. The person to whom the threat is made reasonably believes that the person making the threat intends to carry out the threat; and
  
  
  4. The person making the threat intentionally engages in conduct that constitutes a substantial step in the commission of the threatened act and the threatened act and the substantial step when taken together:
  
  
  • (A) Are corroborative of the person's intent to commit the threatened act; and
  
  
  • (B) Occur close enough in time to evidence an intent and ability to commit the threatened act”

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One of the most difficult things about the practice of law is that the law is constantly evolving. Even laws that have been worded exactly the same way for hundreds of years are always being reinterpreted and laws that seem to have plain meaning can be a source of controversy when they are applied to complicated or novel factual scenarios. Some such controversies make their way to the Tennessee Supreme Court, which has several notable criminal cases on its upcoming docket.

One case, styled State v. Swift presents an interesting fact situation that calls for an interpretation of Tennessee’s aggravated robbery statute. The issue presented in this case is whether the evidence is sufficient to justify convicting the defendant of aggravated robbery where the violence or intimidation occurred after the taking that constituted the robbery was complete. If the evidence is insufficient, the defendant seems likely to be convicted of theft and aggravated assault, which could potentially result in a much lower sentence for the defendant than would the aggravated robbery charge.

Continue reading "Tennessee Supreme Court Has Several Criminal Cases On the Docket" »

A Pennsylvania prosecutor is reportedly struggling with how to charge a boy suspected of murdering his pregnant stepmother when he was eleven. The woman was apparently shot in her own home last February, and investigators began to suspect the boy of being shooter when their investigation revealed no signs of forced entry or burglary. Authorities reportedly believe that the boy was jealous of his stepmother and the other children that had moved into the house with her, as well as the child that was on the way. Detectives apparently found gunshot residue on the boy’s clothing and his shotgun seemed to have been recently fired and looked to have burned a hole in a blanket that was covering it. The boy’s family, however, disputes these conclusions and says that his clothes would likely have gunshot residue anyway because he hunted frequently.

The boy has been in juvenile lockup for nearly a year while the prosecutor tries to decide how to charge him. Pennsylvania law apparently forces the prosecutor to either charge the boy as an adult or not charge him at all. Tennessee criminal law is much different in that it gives the prosecutor more leeway as to how to charge the suspect.

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One of the great things about baseball is that you can play it anywhere. All you need is a bat and something to use it on and you can play baseball in some form. A good example of this is provided by a Georgia man who walked into Lilburn, Georgia Wal-Mart on Wednesday, grabbed a baseball bat and smashed up twenty-nine flat screen televisions. He was reportedly arrested soon after he had finished teeing off on the televisions and authorities are still trying to discover his motive. The televisions are reportedly valued at over $22,000.

Under Tennessee law, the man would most likely be charged with vandalism, which can be charged against “[a]ny person who knowingly causes damage to or the destruction of any real or personal property of another or of the state, the United States, any county, city, or town knowing that the person does not have the owner's effective consent.” The destruction of Wal-Mart’s televisions with Wal-Mart’s baseball seems to clearly qualify.

Under Tennessee’s vandalism statute, vandalism is punished like theft. This basically means that the value of the property is determined according to either the fair market value of the property, or, if the fair market value cannot be determined, the cost of replacing the property. Once the value of the property is determined, the amount of value of such property that was lost due to damage or destruction of the property is determined. The offense is then graded according to the amount of property damage that occurred under the same grading system as theft. This is found in T.C.A. section 39-14-105 and classifies theft offenses according to the value of the property obtained, with the harshest possible penalty being a Class B felony for thefts over $60,000. In the case discussed above, the man would likely be looking at a Class C felony because the property’s value is between $10,000 and $60,000. A Class C felony is punishable by up to fifteen years in prison.

Source: http://www.ledger-enquirer.com/news/breaking_news/story/1008898.html

Intoxication often leads individuals to make less than optimal decisions, which is exactly what an Indiana man did early Sunday morning when he decided it might be a good idea to try to steal a backhoe. The man apparently climbed over a fence to get to the backhoe and then crashed the backhoe through the fence to make his escape. A host of witnesses reportedly saw the man try to make his escape and called the police, with one even following him down the highway while talking to police on his mobile phone. To make matters worse for the man, he reportedly attempted to make his escape by zig-zagging between his own lane and oncoming traffic on the backhoe. Police said he showed signs of intoxication. The personal injury consequences of this situation are discussed here.

The man in this scenario is likely looking at a charge of evading arrest in addition to DUI and whatever other charges he may be saddled with. In Tennessee, a person can be charged with evading arrest when he or she intentionally flees from any person that the suspect knows to be a law enforcement officer if the suspect knows the officer is trying to arrest them or if they have already been arrested. This is illegal both if the suspect flees on foot and if the suspect flees in a motor vehicle. Fleeing on foot is a Class A misdemeanor, punishable by up to eleven months and twenty nine days in jail. Fleeing in a motor vehicle after having received any signal to stop from a law enforcement officer is a Class E felony, unless such conduct creates a risk of death or serious injury to a third party (which could have very well happened in the scenario above) in which case it is a Class D felony.

The good news for suspects facing a charge of evading arrest is that it is a defense that the attempted arrest was unlawful. There are many ways an attempted arrest or traffic stop can be illegal, and a skilled criminal defense attorney can assist a suspect in going through those options. It is also a defense that the suspect did not know that he or she was being arrested or asked to pull over for a traffic stop, but that defense is not likely to succeed unless it is very cleverly made.

Source: http://www.azcentral.com/offbeat/articles/2010/02/09/20100209man-flees-in-backhoe.html

The concept of lesser included offenses is one that can at times prove confusing to defendants, attorneys, and, as the case of State v. Wellman shows, the courts. In Wellman, the defendant was arrested after an anonymous phone call informed police that the defendant was selling drugs in the Nashville area. The police investigated and arrested the defendant, and a search of his vehicle revealed a handgun in the automobile. Based on this finding the state charged him with, among other things, felony possession of a handgun, a Class E Felony in Tennessee. After a trial, he was convicted of, among other things, attempted felony possession of a handgun, a Class A misdemeanor.

On appeal, the Court of Criminal Appeals ruled that the evidence was insufficient to convict the defendant of attempted felony possession of a handgun. The court held that an essential element of the attempt offense was that the defendant had previously been convicted of “a felony involving the use or attempted use of force, violence, or a deadly weapon.” The Court found that the prosecution failed to prove this element, meaning that it was not a felony for the defendant to possess a handgun and thus he could not be convicted of the attempt offense of which he had been convicted in the trial court. Furthermore, the Court of Appeals held that there is no lesser included offense for attempted possession of a handgun, because the only possible lesser included offense contained an additional element. Where an offense contains an extra essential element than a more serious offense, the former cannot be a lesser included offense of the latter.

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The word “consecutive” is a word that can strike fear into the heart of any criminal defendant. That single word can make decades’ worth of difference in defendants’ sentencing hearings, transforming multiple convictions into one extended prison term. Where sentences are imposed “consecutively” in Tennessee, they run back-to-back, meaning four sentences of four years each could result in a sentence of sixteen years. When sentences are imposed “concurrently” they all run at the same time, meaning those four convictions would net the defendant four total years of jail time. Since consecutive sentencing is an incredibly harsh punishment in many cases, Tennessee law requires that certain factors be met in order to sentence a defendant consecutively. One such factor is that the defendant is a “professional criminal.”

In State v. Talley, the Tennessee Court of Criminal Appeals upheld consecutive sentences for a defendant who was labeled as a “professional criminal,” by the trial court. In placing this label on the defendant the court looked to the defendant’s prior convictions, the defendant’s work history, and the length of time between incarcerations. Unfortunately for the defendant, none of these categories proved favorable for him and his convictions were affirmed.

The best way for a defendant to fight the label of “professional criminal,” will depend upon the circumstances of the case and the defendant’s history. Obviously the defendant stands a better chance of avoiding the label if he or she has not committed the same offense several times previously. It will also be helpful if the defendant does not have a lengthy criminal history and that the defendant’s criminal history has large gaps between offenses, showing that he or she has not made a career out of criminal activity. Also, since the label contains the word “professional,” it may help the defendant to show that he or she has been able to make a living doing something that is not some form of criminal activity. Which parts of this label a defendant wants to attack will depend on the circumstances of the case and the defendant’s history. A skilled criminal defense attorney will be able to rely on past experience and professional judgment in order to determine how to best avoid this categorization.

Source: State v. Tally, 35 TAM 6-22, 12/8/09, Jackson, Glenn, 7 pages.

An Oregon couple was convicted of criminally negligent homicide on Tuesday after a jury decided that prayer and anointing oils were not sufficient treatment for the couple’s son, who died from a congenital urinary tract blockage. The couple belongs to a church known as Followers of the Church of Christ and as such adheres to the view that doctors are to be eschewed in favor of faith healing. Stories where parents forego medical treatment in favor of faith healing practices have become increasingly common, and such practices have spawned many criminal trials. In fact, this couple’s own granddaughter had passed away under similar circumstances, but her parents were acquitted of manslaughter. The couple in this case was not so lucky. They reportedly face up to sixteen months in jail for the criminally negligent homicide charge under Oregon law. Criminally negligent homicide is a Class E Felony in Tennessee and carries a penalty of one to six years in jail.

The most obvious issue presented by this case is the conflict between protecting and criminalizing legitimately held religious beliefs. However, that issue is extremely complex and could not be treated in a blog format. Instead this case will just have to suffice for our purposes to illustrate the use of a statutorily recognized mitigating factor found in Tennessee Code Annotated section 40-35-113(3) which says that where substantial grounds exist tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense, the defendant can use such grounds as a mitigating factor.

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Parents often talk about how hard it is to see a child through their teen years, and a father from Niceville, Florida would probably agree with that assessment after he had to call the police on his fifteen year-old son after a family dispute became (kind of) dangerous. The two were reportedly arguing about the son being grounded when the father demanded the son hand over his iPod. The kid refused and reportedly grabbed a spoon “in a knife-like hold” with which to threaten his dad. Fearing for his life, the father called the cops. He was charged with criminal mischief.

The notable thing about this story from a criminal law standpoint is that the son was described as grabbing a spoon in a “knife-like hold” according to the arrest report. Tennessee law, and the law of most other states, has not set a bright-line rule that defines exactly what is and what is not a deadly weapon for purposes of the criminal code. The definition of a “deadly weapon” in the Tennessee code includes “[a]nything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Thus, the definition literally encompasses any object in the world, as it is technically possible to kill someone with a piece of paper or a cotton swab if used in the appropriate manner. Whether something actually qualifies as a “deadly weapon” for purposes of the criminal code, then, will often depend on the circumstances.

In this situation, the classification of the way the spoon was held would indicate that the police possibly considered the spoon as a deadly weapon. This classification can be extremely important, because use of a deadly weapon greatly enhances the classification and punishment of certain criminal offenses. For example, robbery is a Class C felony in Tennessee, punishable by three to fifteen years in prison. Use or display of a deadly weapon during a robbery, however, automatically escalates the charge to aggravated robbery, a Class B felony that is punishable by eight to thirty years in prison.

It is clear, then, that whether or not the defendant uses an object that is considered a deadly weapon can play a large role in a criminal trial. The bad news for defendants is that there is no set rule for what specific objects can constitute a deadly weapon. The good news, however, for defendants who use borderline objects, such as forks or spoons, is that a skilled criminal defense attorney can argue from the circumstances surrounding the offense that the object was not intended to be a deadly weapon and was not used as such.

Source: http://www.nwfdailynews.com/news/boy-25379-son-police.html

The criminal process is set up so that defendants have a multitude of options at their disposal for making sure they are able to obtain a fair sentence. One of these options is the right to appeal, and defendants can appeal on a wide range of subjects, one of which is that the defendant received a sentence that was excessive. This will usually be based on the theory that the sentencing court did not take the proper considerations into account before sentencing. State v. Pedigo, a recent case heard by the Tennessee Court of Criminal Appeals, serves to illustrate this issue.

In Pedigo, the defendant pled guilty to aggravated burglary and theft over $1,000. He was sentenced as a Range III offender to 15 years in jail. He appealed, arguing that the sentence was excessive. During the sentencing phase, the trial court stated that it had considered mitigating factors but did not state which factors it had considered or how much weight each was given. Likewise, the trial court sought to apply several enhancement factors, but the trial court only discussed one of them. The trial court also failed to state the process by which it balanced the mitigating and enhancement factors in determining the sentence. The Court of Criminal Appeals found that due to these factors, the record did not properly establish that the trial court had considered all of the relevant sentencing principles before sentencing the defendant. As a result, the Court of Criminal Appeals ordered that the case be sent back down to the trial court for a more specific sentencing procedure in which the trial court would properly identify all of the relevant mitigating and enhancement factors, discuss the facts supporting each, and outline how the factors were balanced in determining the sentence.

This case demonstrates that defendants can appeal if they think that they were excessively sentenced due to a flaw in the sentencing process. The good news is that if this appeal is successful, the defendant’s case will be re-evaluated, and he or she may receive a new sentence. The bad news is that the new sentence may be a larger sentence than the first one, and if it is properly reached it may not be overturned. Thus, defendants should always seek out the advice of an experienced East TN criminal defense attorney before deciding whether or not to appeal and on what grounds.

Source: (State v. Pedigo, 35 TAM 5-27, 12/2/09, Nashville, Wedemeyer, 6 pages.)

A recent Tennessee Court of Criminal Appeals decision interpreted Tennessee’s DUI statute in a way that may prove confusing in the future. In the case, styled State v. Wright, the defendant was convicted of DUI based on the evidence that the officer saw him swerve over the center line of the road three times, the defendant approached a stop sign and turned left without stopping, the officer detected the odor of alcohol when she approached the vehicle, that defendant needed support when he exited the vehicle, and that the defendant failed all five field sobriety tests. Despite this, the defendant’s BAC level was only .03%, well below the legal limit of .08%. The court held that although the defendant’s BAC level was not sufficient to give rise to the legal inference that the defendant was driving under the influence, the evidence nevertheless supported a finding that the defendant was guilty of DUI. This is probably the right result in the case, as intoxication does not necessarily have any correlation to alcohol or BAC level and the defendant seems clearly to have been intoxicated. However, this case begs the question of what purpose the BAC restriction has at all.

Tennessee’s DUI statute, T.C.A. section 55-10-401, provides that it is unlawful for a person to control a motor vehicle on a public roadway or place while:

1. Under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system; or


2. The alcohol concentration in the person's blood or breath is eight-hundredths of one percent (.08 %) or more.

Continue reading "BAC Level is not Dispositive in Tennessee" »

Self-defense is a theory of defense that is generally available in Tennessee to those who are charged with or accused of crimes involving the use of force against another individual. The basic premise behind the defense is that one person has the right to use a reasonable amount of force against another to prevent the suffering of death or bodily harm. This defense is recognized by statute in Tennessee, which effectively limits its applicability to situations where the elements are met. In other words, for a defendant to properly claim that he or she acted out of self-defense, certain conditions must have existed at the time the defendant committed the act for which he or she was charged. Trying to prove all of the elements of the self-defense statute is tricky in a criminal case and will often require the expertise of a skilled Knoxville criminal defense attorney.

The applicability of this defense will obviously depend on the circumstances surrounding the conduct, but certain basic conditions must always be present. Simply put, the defendant (the person who used force and is now claiming self-defense as a defense to criminal charges) must have reasonably and honestly believed that another person was using or about to use unlawful force that presented an imminent danger of death or serious bodily injury to that person or someone else which would justify the immediate use of necessary force.

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