The Mysterious Implied Consent Law in Tennessee

by Bell Law Firm

Few laws are as shrouded in mystery as Tennessee’s implied consent law. Do I have to let the police draw my blood? Should I? What happens if I refuse? Why can’t I give them a urine test or a breath test and refuse blood? There are no clear cut answers to many of those questions; every case is unique in its own way and good legal advice is always specific to each case. If you need advice on an ongoing legal situation involving Tennessee’s implied consent or an alcohol related driving offense, stop reading this immediately (or bookmark it for later) and call our office at 865-637-2900. The Law Office of James A.H. Bell, P.C. has litigated in this field for more than forty years.

You can find Tennessee’s implied consent law here. In short, it states that anyone in Tennessee that drives a car gives their consent to having their blood tested to determine the alcohol content if a police officer has probable cause to believe that the person is driving under the influence of alcohol, or violating certain other laws.[1] And, without doubt, the law enforcement officer has the exclusive choice to decide which chemical test to employ in the particular case. You have no choice to insist on a particular test.[2]

Usually, for the officer to establish that he has probable cause to believe that a person is driving under the influence, the officer must make a statement under oath about all of the facts that make the officer believe the person is intoxicated, give that statement to a magistrate, who reviews it and if he agrees with it, swears out a warrant for the person’s blood to be drawn. This is so because of the Fourth Amendment’s protection against “unreasonable searches and seizures”. Any time an officer takes blood from a suspect, the act of taking the blood is considered a “search”. To ensure that the seizure is “reasonable” Courts usually requires the officer to get approval (a warrant) from a “neutral and detached” magistrate.

However, like all rules, there are exceptions to the “warrant requirement”, such as when a suspect “consents” to the search or seizure by agreeing that the officer may draw blood: an officer doesn’t need a warrant if you agree to the search. Another exception is known as the “exigent circumstances” exception, which applies if an officer is chasing a bank-robber from the bank to his getaway car: the officer is not required to call and get a magistrate’s approval before he “seizes” the car.

Until the Supreme Court case of Missouri v. McNeely, officers could skip the part about swearing out a statement and having a magistrate issue a warrant because of this “exigent circumstances” exception. The justification for not requiring the usual warrant process went like this: because alcohol dissipates in the blood over time, evidence of the crime of driving under the influence “disappears” over time, creating an exigent situation (disappearing evidence!) therefore an officer could skip the warrant requirement and go right to the seizure of the suspect’s blood.

Missouri v. McNeely changed all that. In that case, the Supreme Court said that just because alcohol dissipates in a person’s blood over time, that fact alone does not mean that the circumstances are always “exigent” in the sense that the officer never has time to get a warrant. Like all legal questions, whether the circumstances truly are “exigent” must be determined on a case by case basis. The Court finally concluded that, “[i]n those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.”

Now, in light of this new case, the ability of a police officer to draw blood, without getting a warrant, simply because alcohol dissipates in a person’s blood over time, is gone just like that. And while the battle has been won for those concerned citizens that favor strict adherence to the warrant requirement, the war is far from over. Our next post will cover another similar battle over the implied consent law and the warrant requirement, and we hope you will come back and continue the conversation

 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] “Wait just a minute,” you say, “when I got my license or purchased my car, I never signed anything consenting to have my blood drawn. No one explained that by driving a car I was agreeing to this deal!” That’s why the law is referred to as the implied consent law, as opposed to the actual consent law. Stay tuned for more information on that subject in our next post.

[2] You do have a statutory right to have an independent sample for independent examination. For more information on the procedure, please contact our office. We have the resources and the ability to have a registered nurse come to the jail and make our own blood draw for your defense and analysis.

A New Day and a New Way

by Bell Law Firm

The Fourth Amendment to the United States Constitution reads simply, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In case after case throughout the history of the United States, nearly every one of the fifty four words in that particular portion of our Constitution has been debated and re-defined in court in the seemingly never-ending quest to define what constitutes a “search,” or what does it mean to have something “seized.” And who knows what the heck an “effect” is anyways?[1]

However no single word in the Fourth Amendment, and perhaps the entire United States Constitution, has incited as much debate as the word, “unreasonable,” After all, the amendment is worded in such a way as to only protect citizens from “unreasonable” searches and seizures. If the search or seizure is “reasonable,” the Fourth Amendment is not violated; if the search or seizure is deemed by a court to be “unreasonable,” then the Court will implement what is known as the “exclusionary rule” and not allow the evidence that was discovered in an unreasonable search or seizure to be used in court against a defendant.[2]

As an example, if a rogue police officer were to stop a car on the road because of the color of the driver’s skin, or because he was just in a bad mood, and discover illegal contraband in the vehicle, that evidence will be suppressed under the exclusionary rule because the stopping of the car and the searching of the vehicle is considered to be “unreasonable,”

But let’s change the facts a bit from the example above. Let’s say the officer didn’t stop the vehicle because of the color of the driver’s skin (something patently illegal), but rather, he stopped the vehicle because he thought the driver was violating the law, when in fact, the driver was not. Say, for example, the driver of the vehicle had a taillight out, and the officer mistakenly believed that the law required two working taillights, when in fact, the law required only one?

That was exactly the situation the Supreme Court faced in the recent case of Heien v. North Carolina. An officer traveling behind a motorist with only one working taillight stopped the motorist under the belief that the law required two working taillights, when in fact, North Carolina required only one. As such, there was no legally justifiable reason to stop the vehicle. However, during the subsequent stop, a duffle bag of drugs was discovered and the driver was arrested and convicted.

In short, a police officer in North Carolina thought a person had violated the law, and stopped the vehicle (which the Supreme Court has held constitutes a “seizure”) under that mistaken belief. Certainly this is an “unreasonable” seizure if the driver hadn’t actually broken the law, right? Not according to the Supreme Court. In an 8 –1 decision, the Court upheld the arrest and conviction, reasoning that the officer’s mistaken belief that the driver had violated the law by having only one working brake light was…wait for it, REASONABLE! That’s right, the Court held that the seizure based on a mistaken belief that the driver had violated the law was not an unreasonable one, because the officer’s mistake about the law itself was reasonable.

It is important to note, however, that this does not mean that officers are free to pull over people for any reason at all, only to face no consequences when they claim that they thought what the driver was doing was illegal. Justice Elena Kagan noted that, only a “genuinely ambiguous” statute should support a “reasonable” mistake about its meaning, one that would present judicial officers with “interpretive work” that is “really difficult” or “very hard.” Basically, it must be a really old or really convoluted law that the officer is mistaken about in order for this particular exception to the general warrant requirement to apply.

In our everyday practice we see a similar situation virtually all the time. A person is pulled over for making a U-turn; when in point of fact U-turns are generally permitted unless otherwise noted. Before the cases were dismissed. Now, it is a new day and the stop, search and seizure will be upheld. This new ruling is like a snowball – it will gather strength and velocity as we move forward with the litigation. But, there is help. The Law Office of James A.H. Bell, P.C. has contended with these legal issues in a positive way for our clients. Often overlooked by other lawyers is the fact that in Tennessee we have our very own constitution that may give some life to the factual and legal issue discussed. If you have a question, please call 865-637-2900 or review our web page at www.jamesahbell.com.

The lone dissenting Justice on this case was Justice Sotomayor, the second newest member to the Court. She described traffic stops like the one in this case as, “annoying, frightening and perhaps humiliating,” and voiced concern about, “Giving officers license to effect seizures so long as they can attach to their reasonable view of the facts some reasonable legal interpretation (or misinterpretation) that suggests a law has been violated,” before posing the question of, “how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters could do so [in light of this decision].”

 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] Interestingly enough, Supreme Court Justice Antonin Scalia was recently asked by a law student during a Q&A session at Brooklyn Law School whether cell phone and other data may be considered an “effect” and thus protected against warrantless surveillance. Scalia declined to address the question directly, but it’s possible the Supreme Court could reign in the wide-spread warrantless surveillance of cell phone and computer data under this little used provision in the Fourth Amendment. Food for thought.

[2] What makes a search or seizure reasonable? The general rule is that an officer must procure a warrant to make a search or seizure reasonable unless a particular exception applies, such as when an officer is in live pursuit of a dangerous suspect. For example, an officer is not required to stop and get a warrant prior to pulling the bank-robber out of his get-away car.

The Function of the Grand Jury

by Bell Law Firm

Recently the grand jury in Missouri failed to indict a law enforcement officer (LEO) who admitted to killing a person in the performance of duty by the LEO. A lot has been said about that decision, but little has been made known to the public about the function of the grand jury.

In simple terms, a grand jury is a legal body of citizens, under the direction of a controlling court, who is impaneled to investigate and receive evidence of an alleged crime committed. Grand juries have other functions as well, such as the supervision and report of the local jail conditions and mental institutions. In criminal cases, the grand jury determines three questions: first, was a crime committed; second, if yes, was there “probable cause” to believe the target (the defendant) committed the crime; and finally, if the answer to that question is also yes, the grand jury determines how many laws within the criminal code were violated by the defendant’s conduct, and thus, how many charges will be brought (the defendant may have violated several portions of the criminal code and thus committed a number of different crimes by his actions).

Thus, the Grand Jury is an accusatory body. It screens criminal charges to be brought into criminal courts for trial or guilty pleas. Only the foreman presides over the grand jury. The prosecutor does not preside, but does assist in the production and presentation of evidence; likewise, the courts do not preside, but does receive the reports of the grand jury activities. Grand juries operate in secret in their deliberations and their activities are very closely protected by the courts and the prosecutors.  The number of grand jurors comprising the grand jury varies from jurisdiction to jurisdiction. Most states require at least twelve citizens while the federal courts require a minimum of sixteen citizens and sometimes as many as twenty three, and typically at least twelve of those citizens must agree about the three prongs discussed above for the case to move forward and an indictment to be handed down.

Most grand juries in this country and in federal court originate from constitutional language; their function determined by congressional or legislative laws, and their procedures governed by rules of criminal procedure. The courts have had numerous legal decisions discussing those three prongs listed.  Typically, a target (defendant) does not testify or present defense evidence at a grand jury hearing. It is not an adversarial proceeding. However, a target may waive certain rights and testify upon petition to the foreman or application to the prosecutor who passes that information to the grand jury.

 In sum, the grand jury is meant to be a screening process, operating independent of the courts and the prosecution, and is self governing over their decisions.

For more information on Grand Jury and its function, please feel free to contact The Law Office of James A.H. Bell, P.C. at 865 637-2900.

 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.

Three Common Questions

by Bell Law Firm

Having had decades of experience as criminal defense attorney, I have learned that clients share certain common concerns regardless of their age, gender, charge, or station in life.  The following is a list of some of the most frequently asked questions.

1. Question: “What should I do if the police contact me?” 

Answer:  If the police contact you, BE POLITE and BE FIRM.  Tell them that you have retained an attorney and that you will not talk to them without your attorney being present.  Oftentimes, the deputy, detective, law enforcement officer, or federal agent will continue to talk to you in hopes of a continued dialogue.  You will be scared.  You will feel unsure.  Do not let your emotions guide you.  Say to them again “I have retained an attorney and I will not talk to you without my attorney present.”  You may find yourself saying this several times, but eventually they will tire of this rehearsed response and either quit trying to question you or contact your attorney.

2. Question: “Will I go to jail?”

Answer:  “It depends.”First and foremost, a person must be convicted of a crime before he or she can be punished.  In order for that to occur, every person charged with a criminal offense must either plead guilty or be found guilty beyond a reasonable doubt.  Only after that occurs, does a Court have authority to punish or sentence a citizen for commission of a crime.

Convictions for certain crimes in Tennessee render a defendant ineligible for probation by operation of law.  First and Second Degree Murder, Child rape, Attempted First Degree Murder, Aggravated Kidnapping, Aggravated Robbery, Aggravated Sexual Battery, Statutory Rape by an Authority Figure, Aggravated Child Abuse/Neglect/ Endangerment, and Violation of the Controlled Substances Act with respect to Schedule I narcotics or other narcotics involving amounts set forth by the statute are all offenses under Tennessee state law which do not allow persons convicted of these offenses to receive probation.

Convictions for other crimes carry mandatory minimum sentences, which means that the legislature requires that a person who has plead guilty or been found guilty of certain criminal acts must go to jail for a certain period of time.  For instance, if convicted of Driving Under the Influence, 1^st Offense in Tennessee, a person must serve a minimum of 48 hours in jail while the remainder of his sentence may be suspended by the Court and the defendant allowed to serve that remainder on probation.  Other crimes do not carry a mandatory minimum period of incarceration.  For instance, if a person with no prior felony convictions is convicted of Burglary in the state courts of Tennessee, a Court has the discretion to allow that defendant to serve his entire sentence on probation.  If convicted of a crime in the federal courts of Tennessee, a defendant should expect to spend some period of time incarcerated as most federal convictions carry mandatory terms of incarceration. If the law allows a Court the discretion to suspend a defendant’s sentence in whole or in part, the presiding judge will consider many factors in determining a convicted citizen’s “proper punishment.”

3. Question: “What factors will the Court take into consideration when determining my sentence?”

Answer:  “Virtually everything”. Whether your case is pending in the federal or state courts of Tennessee, the judge who has the responsibility of sentencing you will take into consideration these common factors:

• Nature and number of prior convictions
• Employment history
• Educational background
• Mental and physical history and condition
• Family history and background
• Alcohol and Drug dependency issues
• Severity of crime for which you are being sentenced
• Any statements made by the victim as regards sentencing and the impact of the offense on his or her life
• Information regarding mitigation factors and enhancement factors
• Nature and extent of available programs and resources to assist in rehabilitation of the defendant
• The sentencing guidelines applicable to the jurisdiction wherein the case is pending
• The defendant’s statement should he choose to make one

As you can see, a good legal defense team continues to fight on a client’s behalf beyond a client’s conviction.  From the initiation of an investigation wherein you become a target of law enforcement’s suspicion or interest to the very end of your case, the Law Office of James A.H. Bell, P.C. stand ready to defend, guide, and advise you.  Do not hesitate to contact us if you or someone you know needs our help.

Also, as a final note, nothing in this post creates or is intended to create an attorney client relationship. Rather, these are just some general guidelines for some of the most common questions that arise in representing those that are the target of an investigation. If you or someone you know is in need of legal advice, please contact our office at 865-637-2900.

Paula Henderson is a criminal defense attorney with the Law Office of James A.H. Bell in Knoxville, TN. She may be contacted by calling 865-637-2900 or by email at phenderson@jamesahbell.com.

The Ripple of an Allegation

by Bell Law Firm

Accusations are powerful things. Unfortunately, most often people fail to appreciate the damage that a mere accusation can do to a person’s reputation, career and family until they are on the receiving end of one. In a world with seemingly infinite social media outlets readily available to spread a malicious accusation far and wide, the old saying that, “a lie can travel halfway around the world before the truth can put its pants on,” has never rang more true.

As a criminal defense attorney here in Knoxville, Tennessee a large portion of my day is spent trying to mitigate the damage of a false accusation that has been made against one of my clients. These days, employers, communities, licensing boards, and any number of other entities will not wait until the criminal justice system has acted on your case, weighed the evidence for and against you, and found you guilty before dropping the hammer.

For example, if you’re a nurse or physician and you are arrested for an alcohol or drug related offense, you may face losing your professional license. If you’re a teacher or college student, and are accused of Driving Under the Influence, you not only face a criminal prosecution, you may also face loss of your job, scholarship, or enrollment in college once that charge is made public – before you even have a chance to respond to the allegations in court. If you’re a commercial truck driver, or someone else that makes a living behind the wheel, you may face loss of your commercial driving privileges if you are arrested for Driving Under the Influence or Leaving the Scene of an Accident even if you were driving your personal vehicle and were returning home from the grocery store on the fateful day you were arrested.

If you’re charged with assaulting your spouse, girlfriend, or boyfriend you will not only be subjected to criminal prosecution, but you will very likely also be on the receiving end of an order of protection (which can have consequences in-and-of itself). Even if the victim later changes their story the consequences can still be catastrophic, as Tennessee running back Treyvon Paulk learned earlier this year when he was dismissed from the team in the face of domestic assault allegations. If you are charged with assaulting or abusing your child, then you may very well have three to four different proceedings going on all at once: First the criminal prosecution, second- the Dependency and Neglect Proceedings in Juvenile Court, third – the Order or Protection, and finally – the Divorce proceedings.

If you are arrested for a felony drug offense, you will not only endure a criminal prosecution, complete with the consequences of possible imprisonment, years of supervision by a government agent, and substantial fines, you may also face possible forfeiture of your personal assets. This is a separate proceeding where the police department, sheriff’s department, or state agency takes possession of your cars, trucks, money, coin collections, jewelry, atv’s, boats, trailers, equipment, etc. (you get the picture) as items bought with or maintained with illegal drug proceeds. Next week, we will have another post detailing the both civil and criminal forfeiture so make sure to check back in with us.

By the time the client arrives in my office, it is often after an accusation has been made and the client begins to feel the effects of that accusation as described in the examples above. But, “what about the presumption of innocence?!?!” they frequently exclaim. It’s a completely understandable response, and unfortunately stems from a very common misunderstanding as to what exactly the “presumption of innocence” is and when it comes into play.

In short, the presumption of innocence lives on in a very narrow and sacred space – a criminal courtroom where the accuser has the burden of proving your guilt beyond a reasonable doubt to a jury of your peers. In this narrow space, you are entitled to have an attorney counsel you, defend you, and assist you, regardless of your ability to pay that attorney. The presumption of innocence then operates as a barrier that the prosecutors must overcome before they can deprive you of your life, liberty or property. This is part of “Due Process” which is guaranteed to every citizen of the United States by the 5^th and 14^th Amendment to the United States Constitution. If the jury comes back and determines that the barrier of the presumption of innocence has not been overcome by the prosecutor’s proof, then the State cannot deprive the accused of their liberty by putting them in jail, or of their property by levying a fine. But it provides no protection from an employer that wishes to deprive you of your job, or a football coach that decides to deprive you of the privilege of playing on the team he coaches.

For those reasons, and so many more, it is more important to contact an attorney at the earliest possible moment once an allegation has been made or an investigation has begun. The wheels of justice work slowly, but lies and accusations do not.

Paula Henderson is a criminal defense attorney with the Law Office of James A.H. Bell in Knoxville, TN. She may be contacted by calling 865-637-2900 or by email at phenderson@jamesahbell.com.

Best Knoxville DUI Defense Lawyer Law Firm

by knoxvillecriminaldefenselaw

The Law Offices of James A.H. Bell, P.C. is a criminal defense law firm located in Knoxville, TN that are here to help those that have been charged with a Tennessee criminal offense.

Been charged with a criminal offence in Knoxville, TN or injured in accident? Contact Knoxville Tennessee’s best DUI criminal defense attorney today at 865-637-2900 or visit our website at http://www.jamesahbell.com

Knoxville, TN. DUI Criminal Defense Lawyer James A.H. Bell Receives Highest Award From Tennessee Bar Association

by knoxvillecriminaldefenselaw

Knoxville, Tennessee attorney James A.H. Bell received the Tennessee Association of Criminal Defense Lawyer Highest Award, the Joseph B. Jones Memorial Lifetime Achievement Award at the Association’s Annual Meeting. The Jones Award is periodically awarded to the one criminal defense attorney who best exemplifies the criminal defense lawyer in the State of Tennessee, who possesses the passion for, the devotion to, and mastery of the skill of defending the accused, along with a career long commitment to TACDL

Bell is a senior practicing DUI criminal defense lawyer at the Law Offices of James A.H. Bell, P.C. in Knoxville and Sevier County,Tennessee, which he founded in the early 1980s. Mr. Bell concentrates his practice to legal crisis management and trial work. Mr. Bell served on the TACDL Board of Directors for sixteen years and served as its President in 1983-1984. Since then, Mr. Bell has participated in virtually all aspects on behalf of TACDL as a frequent lecturer and presenter, supporter of numerous criminal defense lawyer missions, and other activities of the Association.

Mr. Bell has been the recipient of the National Association of Criminal Defense Lawyers highest award, the Robert J. Heeney Memorial Award in 2003. Bell is licensed to practice law in the United States District Court for the Eastern District and Middle District of Tennessee and the state courts of Tennessee.

Mr. Bell has handled and tried cases throughout the United States and virtually more than one – half the counties in Tennessee in his career. Mr. Bell earned his bachelor’s degree from ETSU (1970) and his law degree from the University of Tennessee, Knoxville (1973).

Knoxville DUI Criminal Defense Lawyer James A.H. Bell as been practicing law for 35 years along with his experienced staff they handle all criminal matters from simple drug possession, drunk driving, sex crimes and capital murder charges.

To learn more about Knoxville Attorney James A.H. Bell or his criminal defense law practice click here.