Probable Cause to Arrest

by Bell Law Firm

In Baltimore Maryland, the chief prosecutor for that state judicial district held a press conference and announced the state had “probable cause to make an arrest” of the law enforcement officers connected with Freddie Gray’s death. The anticipated charges are homicide and related lesser offense such as misconduct. According to reports, Mr. Gray died after sustaining a spinal cord injury while he was in police custody. The prosecutor cited repeated mistreatment of Mr. Gray. During Mr. Gray’s initial arrest, seizure and custody transport. Mr. Gray was abused, was arrested without probable cause, and the officers involved violated numerous police procedures. Moreover, the officers neglected to seek medical treatment at all after Mr. Gray was injured. You can view a full timeline of the events as compiled by the New York Times here.

Two important legal questions have surfaced as a result of this announcement. One, what was the basis of Mr. Gray’s initial arrest, and did that basis amount to probable cause to seize and detain him? The answer is very simple: No. Mr. Gray had in his possession a knife, located in his pants pocket. It was not an illegal weapon, prohibited by law. The arrest of Mr. Gray for possession of an unlawful weapon was without probable cause.

The next question is, what is the basis of the officers arrest, and did that basis amount to probable cause to seize and detain the officers? The answer again is very simple: yes. The officers, based upon a review of the film footage, statements of witnesses, review of procedures, and the totality of the circumstances show that they, in connection with each other recklessly failed to safely restrain Mr. Gray during the course of an illegal seizure of Mr. Gray’s person, which resulted in Mr. Gray’s death.

What is probable cause, then, in the legal sense?  It simply means that amount of proof necessary to bring forth charges and set the process for a trial on the issue of guilt for the conduct of the officers in their handling of a person in custody. It does not mean that the officers are guilty beyond a reasonable doubt. It does not mean the evidence is more likely than not that the officers violated the criminal law, or that they are guilty of the crimes charged. It merely means that there is sufficient evidence to initiate the legal process.

A common definition that we learned in law school is that probable cause exists where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed. For example, if you saw me in raincoat and it was wet, you would have probable cause to believe that it was raining outside.

Like the rest of the country, we will continue to follow the Freddie Gray story as the wheels of justice continue to turn.

James A.H. Bell is the founder of Law Offices of James A.H. Bell, P.C. in Knoxville, TN. Mr. Bell has over 40 years of experience in both criminal and civil litigation and may be contacted by calling 865-637-2900 or by email at jbell@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

Thinking of Attending Bonaroo? We Have some Advice.

by Bell Law Firm

For many music lovers from all over the country, a music fest is brewing in Bonaroo. There will be a record attendance by many from the four corners of the United States. Unfortunately, for some, there will be some potential dire consequences with the heightened law enforcement activity that normally accompanies this particular event. This brief article will discuss the most frequent interaction between the attendee and the law enforcement officer(s) (LEO).

First and foremost, if your vehicle is stopped, the police will want to search you and the vehicle for narcotics. You should not consent to a search of your motor vehicle. Also, you should read our last blog on the latest ruling by the Supreme Court on search and seizure of vehicles. You can find the article here. You should not make any statements or try to debate the stop and detention. Simply ask, “Am I free to leave now?”

If your vehicle (car, motorcycle, van, bus, motor home, camper, etc) or other property is seized, please obtain and keep the seizure receipt (usually it’s a green copy) so that the lawyers can take immediate action. The seizure hearing is separate and apart from the criminal case, so there will be a need to contest the seizure of your assets. The LEO will confiscate any evidence of narcotic use, such as scales, rolling papers. The LEO will seize for forfeiture any and all assets, such as vehicles described above, cash, jewelry, and other valuables. The bigger the asset seizure, the more aggressive the prosecution will be is a good rule of thumb to remember.

Once you are on the side of the road with the LEO, do not volunteer any answers to any questions. Provide the LEO with a valid driver’s license, proof of registration, and proof of insurance. Do not agree to do what the officer asks you to do, or request you to do, such as field sobriety tests. If the LEO orders you to do something, such as get out of the car, then obey the order and no further.

The Law Offices of James A.H. Bell, P.C. has for years successfully defended young men and women from across the country from various forms of prosecution resulting from the Bonaroo festival. We want you to enjoy your time here in Tennessee, but if the visit results in an arrest, seizure, or confiscation assets, please feel free to contact this office for a consultation.

James A.H. Bell is the founder of Law Offices of James A.H. Bell, P.C. in Knoxville, TN. Mr. Bell has over 40 years of experience in both criminal and civil litigation and may be contacted by calling 865-637-2900 or by email at jbell@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

Supreme Court Strengthens Privacy Protection for Motorists

by Bell Law Firm

Officer conducting a search using a “dog sniff”

Just after midnight on March 27, 2012, Nebraska police officer Morgan Struble watched as a Mercury Mountaineer veered slowly onto the shoulder of State Highway 275 before correcting and moving back. Officer Struble, travelling with his k-9 Floyd, activated his blue lights and proceeded to stop the SUV.

There were two men in the vehicle, one of which was Dennys Rodriguez. Rodriguez, the driver, told Officer Struble he had swerved onto the shoulder to avoid a pothole, and handed the officer the usual information: license, registration, and proof of insurance. Officer Struble conducted a records check on Rodriguez. Finding nothing, he returned to the vehicle and began questioning the two men about where they had been that night. Officer Struble then took the other man’s identification and ran a records check on him. Finding nothing, he returned to the vehicle and returned the license along with a written warning for Rodriguez.

Rather than allowing the men to depart, however, Officer Struble asked Rodriguez if he would wait while Struble conducted a “dog sniff”, a procedure by which the officer walks his k-9 around the vehicle for the purpose of detecting the presence of illegal drugs. Rodriguez refused, at which point Officer Struble told him to turn off the ignition, get out of the vehicle, and stand in front of the patrol car while they awaited the arrival of a second officer. Both men did as they were told, and upon the arrival of the second officer, Officer Struble and his k-9 Floyd conducted the “dog sniff”, and subsequently discovered, “a large bag of methamphetamine.”

All told, the entire stop lasted a period of some thirty minutes, approximately 7-10 minutes of which occurred after the issuance of the citation and before the dog alerted to the presence of drugs in the vehicle. After his arrest, Rodriguez challenged the use of the evidence against him, arguing essentially that the officer had no basis to continue detaining him after issuing the written warning.

After reviewing the evidence, a magistrate agreed with Rodriguez on one thing: the officer had no lawful basis to continue holding the two men after he issued the written warning; he had no reasonable suspicion that the men were travelling with narcotics, and he had no probable cause to believe that they had committed a crime.

Despite this admission, the Magistrate, and later the District Court’s, reaction can be boiled down to: “so what?” The Magistrate found, and the District Court later agreed, that the seven to ten minute extension of the stop was “not of constitutional significance” and refused to suppress the evidence. The Eight Circuit Court of Appeals affirmed the decision and Rodriguez appealed to the only court in the land with the authority to overrule them: the United States Supreme Court.

In a divided 6-3 opinion, Justices Ginsburg, Roberts, Scalia, Breyer, Kagan and Sotomayor ruled that, unless the officer has a “reasonable suspicion”[1] of criminal activity, a traffic stop that exceeds the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.

In this case, the only evidence of the presence of illegal contraband came from the dog sniff. Because the dog sniff occurred after the “mission of the stop” had been completed (i.e. after the driver had been issued a written warning), the evidence was discovered at a time when the driver was illegally seized, and therefore cannot be used against the defendant in court.

To be clear, this decision will not end the practice of overzealous officers prolonging traffic stops for the purpose of fishing for evidence of illegal activity.  Cases involving traffic stops are always fact-specific and, as the dissent points out, the time required to complete a traffic stop can vary depending on the technology available to the officer making the stop, among other factors. Likewise, this case does not stand for the proposition that drug dealers and traffickers are free to transport their wares on our nation’s highways without fear of detection from law enforcement.

What it does stand for, is the idea that an officer cannot prolong a stop and force passengers and drivers to exit their vehicle, await the arrival of other officers, or wait while the officer conducts a “dog sniff” unless the officer has an articulable basis for doing so.

[1] A reasonable suspicion means a suspicion that does not rise to the level of than probable cause, but is more than a mere hunch based on the totality of the circumstances.

Jacob Feuer is an associate attorney with the Law Offices of James A.H. Bell P.C  in Knoxville, TN. He may be contacted by calling 865-637-2900 or by email at jfeuer@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

Distinctions Make the Difference

by Bell Law Firm

In our previous post, we discussed the importance of understanding and applying scientific and mathematical laws in the context of a civil law suit. In this piece, we explore how and why those skills are just as important, if not more so, in criminal litigation.

Yesterday, in another Internet venue, one of the country’s most respected DUI lawyers in Wisconsin made a reference to the sometimes forgotten Report from the National Research Counsel on the state of Forensic Science in America. “This report was a damning indictment of many standard practices in crime laboratories throughout the country.”^[1] The National Research Council Report found serious deficiencies in various forensic science systems and recommended major reforms and new research.   Unfortunately, none of those reforms have been universally implemented.

My colleague from Wisconsin pointed out that it is essential that a lawyer that tries cases be equipped with a clear understanding of forensic metrology so that the lawyer can present their position to the jury in an understandable manner and identify these serious deficiencies for the benefit of the client.

Knowledge of these concepts is just as necessary in criminal trials as in civil ones. Frequently in criminal cases, forensic evidence is used to support legal theories and conclusions about the evidence or a particular person (usually the one on trial), such as a gun, an article of clothing, hair follicles, and the like. Say, for example, that a hair follicle is found at the scene of a crime and the prosecutor is attempting to establish that the hair follicle “matched” a sample taken from the Defendant.

The informed defense lawyer will be able to point out to the jury what the National Research Counsel’s Report on Forensic Science in America says about attempting to use hair follicle evidence as definitive proof that the follicle came from the Defendant. That committee found no evidence that microscopic hair analysis can “reliably associate a hair with a specific individual, but noted that the technique may provide information that either includes or excludes a subpopulation.” So can these hair follicle test results prove that the particular hair found at the scene of a crime came from the defendant? Because we are familiar with the science involved, we can confidently argue to a jury that it does not; it merely establishes that the hair came from a person that belongs to the same subpopulation as the defendant.

Depending on the size of the subgroup, this could bring in hundreds or thousands of other individuals that are just as likely to have committed the crime based on the presence of the hair follicle. Suddenly, the jury understands that the hair follicle evidence isn’t definitive proof that the Defendant was at the scene, it just means that it is possible that the Defendant was at the scene, but it’s also possible that one of the other members of the subgroup was at the scene. In criminal cases, where the burden of proof is on the prosecution to prove beyond a reasonable doubt that the Defendant was present at the scene and committed the crime, being able to explain why a hair follicle “match” is not conclusive proof can be the difference between a guilty and a non-guilty verdict; it can be the difference between years in prison and going home. Again, to be sure, make sure that the lawyer you choose is one that understands the subject matter of this article.The distinction makes the difference.

James A.H. Bell is the founder of Law Offices of James A.H. Bell P.C  in Knoxville, TN. Mr. Bell has over 40 years of experience in both criminal and civil litigation and may be contacted by calling 865-637-2900 or by email at jbell@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

[1] A PDF is available from the National Academies Press at: http://www.nap.edu/catlog/12589.html.

Does Your Lawyer Understand Metrology, or the Science of Theoretical and Practical Aspects of Forensic Measurements?

by Bell Law Firm

If I told you that a trial lawyer in a criminal or personal injury case must be equipped to understand Forensic Metrology, laymen would look at you as if you had two heads and a lawyer who did not understand it would dismiss the notion entirely.[1]

In our law offices we constantly contend with these issues, particularly in the area of vehicular collisions. I am a Founding Member of the National College of DUI Defense from Tennessee, and as such I occasionally review the listserv on questions about car wrecks and accident reconstruction. However, I am not an engineer, nor have I had any specialized mathematical training other than what I learned in elementary school, high school and college business classes. But, what I learned, I learned well and use it virtually every day. Recently, there has been a great deal of discussion about the importance of being able to explain complex scientific principals involving mathematical formulas in a manner in a manner that allows the juror to apply those principals to the facts of a given case. Of note, those principals apply in both the civil and criminal arena.

A common example that arises is when a defendant driver claims they attempted to stop their vehicle before rear-ending one of our clients, when in fact they were texting or were otherwise distracted and never applied the brakes. To prove that the driver never applied their brakes, we would have to explain the principal “coefficient of friction”. If we were to merely read the jury the scientific definition of this principal,[2] most would be instantly confused and we would risk not making our case effectively.

Rather, because the attorneys in this firm are familiar with the scientific concept and the mathematical applications, we can explain the same situation very simply by analogy or example to allow the average juror to understand how the complex scientific principal applies to a regular rear-end collision. Instead of merely parroting the scientific definition, we would explain the concept like this: “When your car is moving at normal speed on the highway, your car creates minimal friction with the road, hence the reason you don’t see skid-marks trailing behind you when driving down the interstate. However, if the brakes are applied suddenly (as happens when someone is trying to prevent rear-ending another driver), the friction between your tires and the road increases because the force of the car’s momentum is confronted by the resistance of your brakes. This confrontation, or friction, is reflected in the skid-marks you see behind your car after a sudden stop.”

So to return to our rear-end collision example, after explaining the relationship between skid-marks and attempting to stop suddenly, we would point to the lack of skid-marks as evidence of the fact that the driver was distracted and therefore never saw our client come to a stop in front of her. In this way, we explain the basic premise of coefficient of friction without getting bogged down in unnecessary scientific jargon.

As my colleague from Wisconsin notes, “we see forensic laboratories fighting against the new paradigm of uncertainty analysis, preferring to admit no possibility of uncertainty, and even confessing margins of error only begrudgingly”. Forensic scientists frequently appear so knowledgeable and official that the average layperson will believe what they are presenting is absolute fact when their conclusion is anything but.  Being able to both use scientific evidence in your favor and confront faulty scientific evidence for the benefit of the client is not only crucial, it is essential. If your lawyer has no experience in these forensic methods of measurements and one item of forensic proof is to be offered, your chances of an effective examination of the scientist witness will be as likely as a “Hail Mary” in a football game.[3] But trials are not games – they are life changers for not only the client, but also their families. In our next post, we will discuss how the same principals and skills are equally or more important in the criminal context as they are in civil suits. We hope you come back to learn a little more.

 James A.H. Bell is the founder of Law Offices of James A.H. Bell P.C  in Knoxville, TN. Mr. Bell has over 40 years of experience in both criminal and civil litigation and may be contacted by calling 865-637-2900 or by email at jbell@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

[1] My three hour presentation on accident reconstruction covers all the geometry, physics, and other mathematical equations that a lawyer would need to know in civil and criminal cases. That presentation has been presented to numerous state and national bar association groups and has been very well received, despite its seemingly boring subject matter

[2]The coefficient of friction is a dimensionless scalar value which describes the ratio of the force of friction between two bodies and the force pressing them together.

[3] And Doug Flutie ain’t walkin’ through that courthouse door.

Zealous Advocacy for Clients

by Bell Law Firm

Recently, a good lawyer friend of mine had a series of legal events in a criminal case that would make a layman scratch his head and say, “how can that be?” The client was charged with DUI. He passed all the field sobriety tests. After a full blown preliminary hearing, the case was dismissed for lack of probable cause to take the client into custody. Score: Defense 1, State 0. The State, being somewhat aggressive, indicted the case in criminal court. A motion to suppress the evidence was filed, and the trial court likewise dismissed the case. Score: Defense 2, State 0. The State appealed to the Tennessee Court of Criminal Appeals. They too, upon a review of the existing law, dismissed the State’s appeal. Since the Tennessee Court of Criminal Appeals is comprised of three judges, the record is now 5 for the defense, 0 for the State. The State, in its zeal to obtain its statistic, and to change the existing law, appealed the Court of Criminal Appeals decision to the Tennessee Supreme Court. That court has five judges. Those five made a new law addressing the right of a law enforcement officer to take a person into custody. They reinstated the charge, sent the case back to the trial court. The score: 5 to 5. As of this date, the defendant is pending trial with the hopes that twelve will find in his favor, leaving the final score 17 to 5.

As you can see, there are occasions in the practice of criminal defense work that winning once is not enough, nor is winning twice, or even three times. The above example demonstrates that in certain cases, the defense lawyer has to win at multiple levels to obtain justice for their client. The law requires that an attorney be a “zealous advocate” on behalf of their clients, and zealous advocacy sometimes requires arguing the client’s case at multiple levels, and then doing so again even after winning the last battle. I wish my friend the best of luck in his quest for justice on behalf of his clients and I am hopeful that the jury members will vindicate his efforts. Regardless, however, he has already embodied the role that all lawyers are required to fulfill: that of a zealous advocate.

 James A.H. Bell is the founder of Law Offices of James A.H. Bell P.C  in Knoxville, TN. Mr. Bell has over 40 years of experience in both criminal and civil litigation and may be contacted by calling 865-637-2900 or by email at jbell@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

Judicial Misbehaving

by Bell Law Firm

Judges are not above the law, and their in-court conduct can be scrutinized and evaluated. A good recent example of this occurred this week as the Ohio Supreme Court ruled that a trial judge shouldn’t have scolded jurors for issuing a verdict the judge believed to be in error. In the case before the court, a jury returned a not guilty verdict in a simple assault case. At the conclusion of the trial, the trial judge told the jury that they “got this wrong”.  The jurors complained. The Ohio Supreme Court held that the trial judge was worthy of a public reprimand because the judge violated two rules that govern judicial conduct. The Ohio Supreme Court said that this particular judge was misbehaving by failing to promote the judiciary’s integrity and impartiality in addition to violating the rule banning trial judges from commenting on the jury’s verdicts.

This case illustrates the process we have in Tennessee. Complaints against all judges in Tennessee are reviewed by the Court of Judiciary. The complaint process is long and arduous, and most of them resolve unfounded in fact or law as misunderstood. But there are those instances where drastic action has been meted out against the judge whose conduct brings the integrity of the process into disrepute. So, if a judge takes money or receives a benefit in a case before him, if his temperament is beyond the pale of duty, or if the judge is addicted to alcohol or narcotics, action can be taken against that judge by the Court of Judiciary.  Sometimes, as here, the actions by words of the judge could result in sanctions. The consequences of a finding of violations of judicial conduct can range from a private reprimand to removal from the bench.

In our office, we have had the experience of representing judicial officials before the Court of Judiciary. Mr. Bell actually tried one of these cases several years ago to verdict, and the trial took place in the old Tennessee Supreme Court building. The panel that acted as judges for that particular case was comprised of three attorneys. The rules of conduct that relate to judges have been around for some time – it just seems every now and then that the public is not aware of the special separate procedure that regulates the judiciary.  The Tennessee Board of Professional Responsibility is the regulatory body that contends with issues involving lawyers, but it is the Court of the Judiciary that regulates the conduct of our State’s judges.

 James A.H. Bell is the founder of Law Offices of James A.H. Bell P.C  in Knoxville, TN. Mr. Bell has over 40 years of experience in both criminal and civil litigation and may be contacted by calling 865-637-2900 or by email at jbell@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

Prepared for Trial- Always

by Bell Law Firm

As a practicing trial lawyer with over forty years of experience, I care deeply and passionately about our justice system, particularly the trials involving juries. A concern that trial lawyers and trial judges have expressed more often than not is the decreasing use of the jury trial as a means or method to resolve disputes between the government (state or federal) and a person charged with crimes as well as resolution of disputes between civil litigants.

There are now so many new laws on the books affecting our society that were passed with the best of intentions. These new laws affect very much the litigation that appears in this firm.

For example, in 2011 the Tennessee Legislature passed the “Tennessee Civil Justice Act”, which caps, or limits, the amount of money that can be awarded to an injured plaintiff for the pain and suffering they have been forced to endure due to the wrongful, or negligent, actions of another.

These caps were controversial at the time of passage and remain so today. We believe the caps to be unconstitutional, and yesterday, Sixth Circuit Judge Neil Thomas issued a Memorandum and Order in which he agreed with that conclusion.[1] But until the Tennessee Supreme Court gets around to agreeing with that conclusion, or the legislature repeals the law (fat chance), these limits remain the law of the land and are a factor that the trial lawyer must contend with when plotting a course of action.

Contending with those new laws can be challenging for the client and the trial lawyer. The midstream attitude or core beliefs of the people have not changed much with the emergent laws. However, these legal reforms such as procedures in medical malpractice cases, caps on civil damages, increased incarceration, have forced us trial lawyers to develop new strategies and techniques in trial to maximize our client results. To be sure, however, because of our long and successful history with juries, the members of this firm often resolve the disputes within a fair framework of what we project a jury will do with a given set of circumstances or facts. In sum, we do not try 20 to 25 cases in a given year these days as we did in the earlier years. On the average, we try somewhere around ten to twelve cases to verdict each year these days. The number of pre-trial hearings involving witnesses has increased with the aggressive use of the motion practice.  But, at the end of the journey our cases seem to resolve with better results for the clients because each case is prepared as if it were going to trial. One professional path we follow in the office is to prepare every case for jury presentation. The Boy Scouts have a motto of “be prepared”. We follow that tenet in this office. “Always Be Prepared For Trial” would be the office motto. That way, we do not get caught short if matters of negotiation fall short and trial is the only alternative to what we want to obtain on behalf of the clients. We believe that many of our adversaries know that fact and negotiate with us accordingly.

The purpose of this brief commentary is to assure the future client of this firm that if you have a legal issue, worthy of debate, regardless whether civil or criminal, we are ready, willing and most able to take your case to a jury for resolution of the question of guilt or innocence in a criminal case. In the civil context, we are likewise prepared to take the case to a jury for resolution of money damages in your favor. Juries in civil cases seem to have a range of money verdicts, and here we look for those things that seem to matter to juries to obtain a resolution in the upper end of those ranges. In the meantime, if the opposing side offers us a settlement offer that is in the upper end of that range, we will gladly accept it and save our client the time, expense and trauma of going through a jury trial. And if the adversary does not pay the premium for the client, we “lace them up and put on the trial face”.  It is the one and only method to get the needed and expected results.

 James A.H. Bell is the founder of Law Offices of James A.H. Bell P.C  in Knoxville, TN. Mr. Bell has over 40 years of experience in both criminal and civil litigation and may be contacted by calling 865-637-2900 or by email at jbell@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

[1] This is a topic that we will be focusing on in future blog posts and we hope you will come back and continue that conversation.

Fair DUI Fliers in Tennessee?

by Bell Law Firm

DUI Checkpoints and other traffic stops can be stressful and sometimes frightening. As we’ve covered before, being stopped by a law enforcement officer is a big deal to us, even if it is a routine, every-day event for a police officer. Given this inherent tension, some people will go to great lengths to avoid interacting with the police at all, even in situations where a police encounter may seem unavoidable, such as a DUI checkpoint.

One such person is Warren Redlich (pictured below), an attorney from Boca Raton, Florida. Mr. Redlich also operates Fairdui.org, a website which publishes fliers like the one pictured below, which are designed to convey all of the information that a law enforcement officer has the right to receive from a driver during a traffic stop or checkpoint under that particular state’s laws. Thus far, Mr. Redlich has created these “Fair DUI” fliers for Florida, as well as New York, California, New Jersey, Ohio, Arkansas, Utah, Texas, Georgia and South Carolina.[1]

NOT APPLICABLE IN TENNESSEE

The back of the flier looks like this, and contains instructions for the driver regarding how to behave during a stop. While Mr. Redlich has yet to get around to creating a sign specifically for Tennessee, it is interesting to examine whether these signs comply with Tennessee law. Pursuant to Tennessee Code Section 55-50-351,

Every licensee shall have the licensee’s license in immediate possession at all times when operating a motor vehicle and shall display it upon demand of any officer or agent of the department or any police officer of the state, county or municipality. . . Any peace officer, field deputy, or inspector of the department, or any other law enforcement officer of this state or municipality thereof, has the right to demand the exhibition of the license of any operator of a motor-driven cycle. . .

So, any officer has the right to “demand an exhibition of the license”, and operators of motor vehicles are then required to “display” the license. This particular law doesn’t say anything about allowing the officer to inspect the license or requiring the driver to submit their license. The law, as currently written, merely requires the driver to display his license. Does showing the license through a closed window as Redlich demonstrates in the picture above comply? That’s a valid question and one that is sure to be raised before the court should Redlich get around to making a Tennessee-specific sign. However, there is at least one obvious flaw in Mr. Redlich’s plan to display these signs in lieu of rolling down the window to interact with an officer: in Tennessee, people being given citations for speeding or otherwise are required to sign the citation agreeing to appear in court or risk being arrested.

As such, although Mr. Redlich’s plan is creative and it is not a magic bullet for avoiding interactions with the police during a stop, at least not in Tennessee. 

As such, it’s probably best to follow the guidelines that we have described in previous posts: (1) be respectful, (2) keep your hands where the officer can see them, (3) and remember the magic question, “Officer, am I being detained, or am I free to leave?” Beyond that, it is best not to discuss anything with the officer at all and to rely on the advice of an experienced DUI attorney, such as the ones here at the Law Office of James A.H. Bell, PC, rather than some sign that you saw on the Internet. 

James A.H. Bell is the founder of Law Offices of James A.H. Bell P.C  in Knoxville, TN. Mr. Bell has over 40 years of experience in both criminal and civil litigation and may be contacted by calling 865-637-2900 or by email at jbell@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

[1] Each state has different requirements for what a driver is required to produce for an officer during a traffic stop. Thus, the necessity to create a flier customized to each state’s specific laws.

Tennessee Supreme Court Delivers Blow to Implied Consent Law

by Bell Law Firm

Today, we continue our discussion of Tennessee’s Implied Consent Law.

Until recently, police officers would pull over a driver they suspected of driving under the influence of alcohol. The police would then force those citizens to have their blood drawn for the purpose of determining their blood alcohol content (BAC). Officers could perform these “blood draws,” without getting a warrant even though the draws are considered a “search” under the Fourth Amendment. This constitutional mandate,  as you may be aware, usually require a warrant issued from a judge or magistrate to be considered “reasonable.” The justification for skipping the warrant requirement in these instances derived from two sources: the “Exigent Circumstances” exception and the “Consent” exception to the Constitutions of the United States and Tennessee. The former practice is no longer good law for the police.

In our most recent post, we discussed the Supreme Court case of Missouri v. McNeely, and how that decision removed the ability of officers to perform a “mandatory blood draw” on citizens that are suspected of alcohol related driving offenses simply because of the fact that alcohol dissipates in the bloodstream over time. As the Court said in that case, “in drunk driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case.”  And while Missouri v. McNeely eliminated one avenue for getting around the warrant requirement, the Court did not fully address the second: Consent.[1]

Under Tennessee’s Implied Consent Law, every driver on the road in Tennessee has “consented” to having their blood drawn should an officer have probable cause to believe that the person is driving under the influence. Essentially, by driving on Tennessee roads, every person is making a deal with the State. The terms of that deal are this: by driving on Tennessee roads and highways, the driver is consenting to a mandatory blood draw should an officer have probable cause to believe the driver is driving under the influence. If the driver refuses to provide blood, the State will take away driving privileges for one year. In this way, the State of Tennessee, through its Implied Consent Law, is simply conditioning the privilege of driving if the driver agrees to waive a fundamental right under the Constitution: the right to be free from unreasonable searches.

But can the State condition the privilege of driving on the waiver of a constitutional right? That was the question the Tennessee Supreme Court addressed in October of 2014, in the case State of Tennessee v. James Dean Wells. Their answer there was an unequivocal “NO.”

Like most constitutional terms, giving “consent” in a legal sense has evolved over time. In Tennessee, the consent must be “unequivocal, specific, intelligently given and uncontaminated by duress or coercion.” Furthermore, “the individual’s free will cannot have been overborne; instead the consent must be the product of a free and unconstrained choice.”

There are other hallmarks of a true “consent” as well, and one example is that for a consent to be sufficient under the Fourth Amendment, the person giving the consent must be able to withdraw his or her consent at any time.

With these parameters in place, the question arises as to just how a citizen’s consent can be “intelligently given” if the vast majority of drivers are unaware of that by driving, they are consenting to a warrantless search? How can the consent that is, by its own definition, “implied” be “the product of a free, unconstrained choice”? And how can consent be effectively “withdrawn” if the withdrawal still results in the loss of driving privileges for a year?

The Tennessee Supreme Court decided that the answer to all of the above questions is, “it cannot,” and as such, the legal fiction that by driving on a Tennessee road the driver is consenting to a warrant-less blood draw is eradicated.

To be clear, that’s not to say that that a police officer does not have the ability to take a blood sample of a driver the officer believes to be driving under the influence of alcohol; the officer certainly can. This case just stands for the premise that those officers cannot take that person’s blood under the guise of that driver’s consent, unless the driver actually consents in a manner that is consistent with the parameters described above.

 Jacob Feuer is an associate attorney with the Law Offices of James A.H. Bell P.C  in Knoxville, TN. He may be contacted by calling 865-637-2900 or by email at jfeuer@jamesahbell.com. The Bell Law Firm: Client Focused, Court Room Proven.

[1] The “consent” exception to the warrant requirement basically means that when a person agrees to have their person, home, or car searched, the officer is free to conduct a search without getting a warrant