Tennessee Criminal Lawyer Blog

Misdemeanors are offenses that are punishable by less than a year of incarceration. Misdemeanors comprise the least serious of the criminal offenses and consequently are committed more frequently than felonies, which comprise more serious criminal conduct which a smaller number of people seem willing to engage in. Misdemeanors in Tennessee range from Class C misdemeanors, such as using a radar jamming device in your car, which carry a maximum penalty of thirty days in jail to Class A misdemeanors, such as reckless endangerment, which carry a maximum penalty of eleven months and twenty-nine days in jail.

Misdemeanors differ from felonies in other ways besides merely the severity of the punishment. One significant way is the way in which arrests can be made for misdemeanors as opposed to felonies. For both types of offense, a police officer may arrest a suspect if authorized by statute or if the officer has a properly-obtained arrest warrant. Where the two differ, however, is that where the officer does not have a warrant or statutory authorization she can only arrest a suspect for a misdemeanor where the violation occurred in her presence or the offense involved domestic violence.

This requirement gives an advantage to defendants who may want to contest their misdemeanor conviction in court. If the defendant can prove that the officer did not actually see the defendant commit the misdemeanor or, for some types of misdemeanors, if the officer does not show up to court on the date the case is heard, the defendant may be able to avoid conviction for the offense altogether. Unfortunately misdemeanors do carry the risk of jail time, so Tennesseans would be wise not to try to contest these issues on their own. Use of a skilled criminal defense attorney can enable the defendant to present the strongest possible defense against a misdemeanor charge and work for the most lenient punishment possible.

The insanity defense is perhaps the most famous defense in all of criminal law. It is frequently used in capital murder cases and with good reason. Jurors are more willing to buy into an insanity defense if the crime for which the defendant was charged seems like a crime no sane or rational person could commit (for example, an especially heinous murder or the murder of a young child). Also, it may quite simply be the only defense that is available to a defendant who seems to have been caught red-handed and has a mountain of evidence piled up against him.

The insanity defense is also a tough defense to raise successfully. Tennessee law places a heavy burden on defendants by requiring them to prove by clear and convincing evidence that they were in such a state of mind that they did not know the nature and quality of the acts they committed or did not know that their actions were wrong. This is made even tougher by Tennessee’s requirement that the defendant must prove that he or she was insane at the time of the offense in question, meaning a prior or subsequent history of mental defect may be irrelevant for all intents and purposes if the defendant cannot prove his or her state of mind at the time of the offense.

While these legal hurdles are tough, there is also one huge practical hurdle to raising an insanity defense: juries are skeptical of the defense because it is used so often. Legal news outlets and television shows make it seem as if every person who is charged with a serious crime in the United States falls back on the insanity defense, and in truth a lot of defendants do. Therefore jurors tend to think that it is a type of catch-all defense that guilty people generally use as a last resort. This is not the case, but it does lead to a skewed perception of the defense of insanity. This does not mean, however, that an insanity defense is not the appropriate course of action for a particular defendant given the facts and circumstances of his or her case. What it does mean is that defendants should hire skilled criminal defense counsel who can expertly present the defense to the jury in order to maximize its effectiveness.

Effective consent is a term used by Tennessee law that allows a person who is charged with causing or threatening to cause bodily injury to another person to use as a defense the fact that the alleged victim effectively consented to the conduct. This defense is allowable under Tennessee law where the conduct in question did not actually cause or pose the risk of serious bodily injury or where the conduct and the harm involved were reasonably foreseeable hazards of any kind of planned or arranged activity not forbidden by law. For example, if Steve decides to play tackle football with his friends he can’t later go to the police and report that his friend assaulted him by tackling him and causing him injury. This is so because under the principle of effective consent, being tackled and injured as a result is a reasonably foreseeable consequence of playing tackle football. The situation might be different if Steve’s friend committed some physical act against him that was outside of the scope of the game, but if the injury and conduct naturally flowed from the game itself, the person who injured Steve could not be charged with assault, reckless endangerment, or any such crimes under Tennessee Law.

The principle of effective consent thus helps to ensure that people aren’t charged with crimes for engaging in what is essentially legal, although sometimes dangerous, conduct. Fairness is a basic principle that underlies the American judicial system and there would be nothing fair about allowing a person to consent to facing the risk of injury and then punishing the other participants when that person is in fact injured. Unfortunately, however, many Tennesseans find themselves in just such a situation when someone with whom they have participated in a planned or group activity is injured and seeks to hold them accountable. As explained above, assault or any other charges would be wrongful in this situation. Persons who are facing wrongful charges should contact an experienced criminal defense attorney who can assist them in contesting the charges and avoiding punishment.

There are certain vocations that are only suited for those who like to live dangerously; astronaut, matador, assassin, and Chicago Cubs fan to name a few. Well, now that “the ice cream wars are heating up” in Washington state according to Marysville police Commander Robb Lamoureux, you can add ice cream vendor to that list. The latest incident to plague the mean streets of Everett, Washington came two Sundays ago when one ice-cream vendor threatened the life of another vendor with a steak knife, letting her know that if she brought her truck on his turf again he would kill her. The man cited an unwritten code that exists among ice cream vendors about where they sell their product as the cause of his frustration. The source article cited below was sure to note that the man was arrested, charged with second-degree assault, and did not seem to be in Good Humor about the situation. (insert rimshot)

In Tennessee, the offending vendor would likely be charged with aggravated assault because he intentionally caused the victim to fear death or bodily injury by using or displaying a deadly weapon. This offense constitutes a Class C felony in Tennessee and is punishable by three to fifteen years of incarceration.

Although this blog article is mostly humorous, things can become serious pretty quickly when a defendant faces a charge as serious as the one described. When facing such a charge, a defendant will need the assistance of a capable criminal defense attorney who can work to help the defendant prove that such an assault never occurred or possibly arrange alternative forms of sentencing for the defendant should he or she could be convicted of the charge, possibly enabling the defendant to avoid incarceration.

Source: http://www.heraldnet.com/article/20100615/NEWS01/706159908/0/FRONTPAGE

Criminal trials are often long and complicated and present many confusing issues for defendant, lawyer, and judge alike. It is unavoidable, then, that mistakes will be made at some point along the way with regard to how the trial is conducted, which evidence is admitted and how it is used, or at various other stages of the trial. It is no surprise, then, that a defendant who is found guilty of a crime will often seek to be granted a new trial on the basis that such error prejudiced the defendant at trial and skewed the outcome of the case. Many states, Tennessee included, will only grant a new trial under these circumstances if the error was “harmful” to the defendant. Harmless error, which is basically error that does not negatively impact the defendant in a substantial way, is not a sufficient basis for a new trial in Tennessee. Error that is sufficiently harmful to the defendant as to warrant a new trial is known as “reversible” error.

Reviewing courts in Tennessee basically look at five factors to see whether or not an error is reversible: (1) The error complained of viewed in context and in light of the facts and circumstances of the case; (2) the curative measures undertaken by the court and the prosecution; (3) the intent of the prosecution in undertaking the improper conduct; (4) the total effect of the improper conduct and any other errors in the record of the trial; and (5) the relative strength or weakness of the defendant's case. These five factors essentially work together to measure how severe an error occurred at the trial level and how harmful that error was to the defendant. When an error has occurred at the trial stage, it is imperative that a defendant be represented on appeal by a competent criminal defense attorney who can argue these five factors in the defendant’s favor and then expertly represent the defendant should a new trial be granted. This may enable the defendant to avoid the sentence that was handed down at the first trial or possibly conviction altogether.

Source: State v. Francis, 669 S.W.2d 85 (Tenn. 1984)

It is one of life’s unspoken rules that you don’t just take the “last one” of something without asking. For example, you don’t take the last slice of pizza or the last dinner roll without asking around to see if anyone else wants it. Failure to do so may earn you some nasty glares and snide comments, or, if you are in the company of forty-one year-old Elizabeth Breeden from Land O’ Lakes, Florida, a good old-fashioned beat down. Ms. Breeden made the news recently when a dispute between her and her boyfriend over who would get the last Natural Light beer turned physical. The boyfriend reportedly opened the beer (without asking it seems) and was immediately swarmed by his girlfriend who was attempting to get the beer out of his hand. She was eventually able to gain some control over the prized beverage and ripped the can in half, spilling its contents on the boyfriend which caused him to stand up. This proved to be a mistake, however, as he was reportedly met with a slap to the face and swift kick to the groin for his efforts. Eventually the police were called and she was charged with domestic battery.

In Tennessee, the woman would be charged with domestic assault. Although the above-described situation is humorous to a point, domestic violence situations certainly are not, and persons found guilty of domestic assault face up to eleven months and twenty-nine days in jail, a fine of up to $200, and loss of the right to carry or even possess a firearm. This is a fairly stiff punishment, and defendants in such situations may need to prove that no assault actually occurred in order to avoid such a sentence. This can be done by showing that the defendant did not intentionally, knowingly, or recklessly cause injury to the victim or that the defendant was actually acting in self-defense. Tennesseans facing such charges would be wise to consult an experienced criminal defense attorney who can assist them in weighing all of their options and defenses.

Source: http://www.aolnews.com/weird-news/article/elizabeth-breeden-jailed-after-police-say-she-fought-boyfriend-for-last-can-of-beer/19524699

Probation is one of a few types of alternative sentencing that is used by the Tennessee Courts when sentencing defendants who have been found guilty of, or plead guilty to, a crime. Simply put, alternative sentences are used when the defendant is able to convince the court that he or she does not deserve to have to spend the entirety of the defendant’s sentence in confinement. This is usually due to the fact that the defendant is a first-time offender or a non-violent offender, or the circumstances of the offense warrant lenient treatment for the defendant. If a defendant can show the court that alternative sentencing is warranted, the defendant may be ordered to do community corrections work or serve all or a part of his or her sentence on probation as an alternative to being incarcerated. Such a sentence is very favorable to a defendant, but does not allow the defendant complete freedom.

Whenever a defendant is placed on probation or community corrections, the court imposes a number of restrictions on the defendant. Failing to abide by those restrictions constitutes a violation of probation. For example, a defendant is almost always prohibited from using illegal drugs or carrying a firearm as a term of probation. If the defendant is found to have engaged in either course of conduct while on probation, he or she has violated the terms of probation and the court will revoke the probation. When this happens, the usual course of conduct for the court is to require the defendant to serve out the remainder of his or her sentence in confinement. This can be disastrous for a defendant if, for example, she is in the first year of serving out an eight year probation sentence.

As discussed above, violating probation can have dire consequences. Therefore, persons who are alleged to have violated probation should seek experienced legal counsel who can assist them in proving to the court that they have not done so. A skilled criminal defense attorney can not only assist the defendant as he or she serves out a probationary sentence but also in contesting an alleged violation, enabling the defendant to avoid confinement if at all possible.

Being subjected to a police search is a harrowing experience. Even if the person who is subjected to the search is completely innocent, it is nerve-racking to have someone sifting through your possessions and looking for any evidence they can find that may lead to your arrest. This is particularly true if the police have already obtained a search warrant, because that generally means that law enforcement was able to provide a magistrate with probable cause to believe that evidence of illegal activity would be found in the home or area that is the subject of the search.

The Constitution provides a variety of different protections for persons who are subjected to searches. In fact, the invasion of a person’s right to privacy in their home has been designated by the United States Supreme Court as the primary evil that the Fourth Amendment is meant to prevent. One way in which this protection takes shape is through the requirement that a search warrant describe with particularity the things or evidence sought to be seized. This means that a search warrant can’t just authorize a general search of a place or dwelling; rather, it must describe with reasonable particularity what those who are performing the search are looking for. This is supposed to prevent those conducting the search from using a general warrant and ransacking the entire house or business in order to find any piece of incriminating evidence that they can. Whether it works this way in reality is sometimes a different story as many motions to suppress are made every year on the basis that the law enforcement agency conducting the search exceeded the scope of the search.

When law enforcement officials overstep their bounds by exceeding the limits of a search warrant, the defendants against whom evidence was gathered may be able to get the evidence suppressed depending on the circumstances surrounding the search and whether or not law enforcement officials were acting in bad faith when they exceeded the search parameters. The likelihood of success of such an argument would depend heavily on comparing the facts of the defendant’s case to those in previous search warrant cases in order to see if the actions taken by law enforcement warrant exclusion or inclusion of the evidence. This can be a complex process, one which would be best-handled by an experienced criminal defense attorney who has the knowledge and expertise to advance the defendant’s best argument to the court.