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.

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.

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.