Moving to a New (Web) Address

Dearest Loyal Readers of “Defending Tennessee,”

Thank you for taking the time to read my posts over the past couple of year. I have immensely enjoyed sharing one of my passions with you (my love for the law) and hope to continue to do so in the future as Defending Tennessee makes its transition to its new web address: http://defendingtennessee.com/blog/

With the launching of my law practice’s new website, I have capitalized on the opportunity to consolidate my website and legal blog into one place, and hope you will “subscribe” to the new blog location so as to continue to receive notices of future posts. Thank you again, and I shall always remain

Very Truly Yours,
– Nick Lee –

Public Intoxication –

Aug29

Criminal defense attorneys are happy to help when someone gets into trouble with the law – indeed, its pretty much the job description. But with football season now on us (can’t wait to hear Smokey howl), I’ve been trying to focus posts on equipping loyal readers with knowledge on how to stay out of trouble: past posts on DUIs (like this one or this one); recently posting to my Facebook page the Tennessee Highway Patrol’s list of checkpoints and their announcement of a “No Refusal Weekend” this Labor Day Weekend (click here for the press release); last week’s post on open containers; and now this post on the Tennessee Criminal Charge of Public Intoxication.

Here is the Tennessee statute on Public Intoxication for your review:

39-17-310. Public intoxication.
(a) A person commits the offense of public intoxication who appears in a public place under the influence of a controlled substance, controlled substance analogue or any other intoxicating substance to the degree that:
(1) The offender may be endangered;
(2) There is endangerment to other persons or property; or
(3) The offender unreasonably annoys people in the vicinity.
(b) A violation of this section is a Class C misdemeanor.

As one of Tennessee’s shorter statutes, Public Intoxication does not require too much breaking down. In Tennessee, you are guilty of Public Intoxication if you are (1) in a public place, (2) under the influence of “a controlled substance, controlled substance analogue, or any other intoxication substance” (aka, it does not have to be alcohol – for instance, marijuana and “meth” are examples of controlled substances”) and you are (3) a danger to yourself, others, others’ property, or are annoying those around you. If found guilty of Public Intoxication, it is a Class C misdemeanor (meaning punishment can include up to 30 days in jail, court costs, and a fine of up to $3,000).

However, just because it is one of Tennessee’s shorter statutes does not mean there are not defenses if you or someone you know is charged with this crime. Often a Criminal Defense attorney can work out a resolution far better than the maximum punishments listed above, though what can be done varies on a case-by-case basis.

And hopefully now you better know how to keep yourself (and loved ones) out of trouble, so you can fully enjoy the game!

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The author of Defending Tennessee is Nicholas W. Lee, Esq., an attorney in Knoxville, Tennessee (please click here for contact information). Also, please feel free to visit Mr. Lee’s website,www.TNLawyerLee.com, or follow his page on Facebook for updates as to his law practice or new posts to Defending Tennessee by clicking here.

The information on this site is general information and should not be construed as legal advice. Every case is unique and you should consult with an attorney in your state about the specific details of your case. Nothing on this site or in correspondence with Nicholas Lee or his agents shall be construed as forming an attorney-client relationship and information you send prior to the forming of an attorney-client relationship may not be kept confidential. Neither this site nor correspondence with Nicholas Lee or his agents shall be construed as a promise nor as undertaking a duty regarding you or your case. Nicholas Lee and his agents are not retained as your legal counsel unless a valid written Representation Agreement is reached regarding your specific case.

“Defending Tennessee” is a privately-ran legal blog and is not a public legal aid agency.

The Tennessee Open Container Law(s)

Aug22

With football time in Tennessee rapidly approaching (as of the time of this article, 9 days, 2 hours, and 23 minutes to kickoff at Neyland Stadium), it seems like a good time to clear up some confusion many people have and maybe keep a few loyal readers out of trouble: what is the “Open Container Law?”

In general, open container laws are laws regulating open containers of alcoholic beverages in public locations (which can include your vehicle). Here I will try to clear up two of the most common confusions I run into regarding Open Container Laws in Tennessee: (1) what does the Tennessee Open Container Law say, and (2) is it enough to just comply with the Tennessee Open Container Law?

**A quick tip: excerpts of statute are inserted in this post for your review. However, if you desire to skip them over, they can be easily identified by their increased indentation.

The Tennessee Open Container Law

So what does the Tennessee Open Container law say? That law is set forth in Tenn. Code Ann. § 55-10-416:

55-10-416.  Open container law.
  (a)  (1) No driver shall consume any alcoholic beverage or beer or possess an open container of alcoholic beverage or beer while operating a motor vehicle in this state.
(2) For purposes of this section:
  (A) “Open container” means any container containing alcoholic beverages or beer, the contents of which are immediately capable of being consumed or the seal of which has been broken;
  (B) An open container is in the possession of the driver when it is not in the possession of any passenger and is not located in a closed glove compartment, trunk or other nonpassenger area of the vehicle; and
  (C) A motor vehicle is in operation if its engine is operating, whether or not the motor vehicle is moving.
(b)  (1) A violation of this section is a Class C misdemeanor, punishable by fine only.
(2) For a violation of this section, a law enforcement officer shall issue a citation in lieu of continued custody, unless the offender refuses to sign and accept the citation, as provided in § 40-7-118.
(c) This section shall not be construed to prohibit any municipality, by ordinance, or any county, by resolution, from prohibiting the passengers in a motor vehicle from consuming or possessing an alcoholic beverage or beer in an open container during the operation of the vehicle by its driver, or be construed to limit the penalties authorized by law for violation of the ordinance or resolution.

For those not used to reading through dusty law books all day, allow me to emphasize Tenn. Code Ann. § 55-10-416(a)(1), which sets forth what you can NOT do: “No driver shall consume any alcoholic beverage or beer or possess an open container of alcoholic beverage or beer while operating a motor vehicle in this state.” If you are deemed to have violated the Tennessee Open Container Law, the statute dictates that it is a “Class C misdemeanor, punishable by fine only.” See Tenn. Code Ann. § 55-10-416(b)(1). And fines for a Class C misdemeanor usually cap out at $50.

Is it enough to just comply with the Tennessee Open Container Law

Obviously it isn’t enough to just comply with one law, you have to comply with all of them, but I actually asked this question to bring light to the fact that you have to comply with federal law, state law, AND city ordinances (to name a few).

For example, in addition to the Tennessee Open Container Statute, Knoxville also has an open container law located in the Knoxville, Tennessee, Code of Ordinances Sect. 4-1 (located below).

Sec. 4-1. Possession or consumption on certain property prohibited or restricted.

(a) For the purposes of this section, an open container is one which has any opening through which its contents may pass in order to be consumed by any person.

(b) It shall be unlawful for any person to:

(1) Possess an open container containing beer or alcoholic beverages or to consume beer or alcoholic beverages on the premises of any retail beer sales outlet which does not have an on-premises permit;

(2) Possess an open container containing beer or alcoholic beverages, or consume beer or alcoholic beverages, on any public street, sidewalk, playground, school property, public park or recreational facility or public parking lot within the corporate limits of the city, unless such possession or consumption is exempted pursuant to subsection (d) of this section;

(3) Possess an open container of beer or consume beer on any privately owned parking lot held open to use by the public; or

(4) Possess an open container of beer or consume beer in Chilhowee Park or the Knoxville Zoological Park.

(c) Consumption of alcoholic beverages may be permitted on the Lower Second Creek site in connection with a city-sponsored or authorized event in accordance with a permit granted by the city.

(d) Possession of an open container of beer and the consumption of beer may be permitted in the areas specified in section 4-76 of this Code, provided that such possession or consumption is authorized by a special permit granted by the beer board in accordance with section 4-76.

As you can see, Ordinance Sect. 4-1 makes a number of activities unlawful, including making it unlawful to “[p]ossess an open container containing beer or alcoholic beverages, or consume beer or alcoholic beverages, on any public street, sidewalk, playground, school property, public park or recreational facility or public parking lot within the corporate limits of the city, unless such possession or consumption is exempted pursuant to subsection (d) of this section.” So it is that, tailgating in Knoxville for example, you could get into trouble for a violation of Knoxville’s Open Container Ordinance, even if you aren’t in trouble for a violation of the Tennessee open Container Statute.

In Closing

I hope this clears up a little confusion surrounding Open Container Laws in Tennessee. And if tailgating (or not), hopefully this will help you to avoid your good times being dampened by tickets and fines.

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“Defending Tennessee” is a privately-ran legal blog and is not a public legal aid agency.

Help Decide Your Future – Vote in Knox County (July 18 – August 7, 2014)

Jul18

Have you voted yet? This post will compile important information for you and your friends for the August 7, 2014 Knox County Elections.

Citizens in Knox County will have the opportunity to early vote from today (July 18, 2014) through Saturday, August 2, 2014. And if you only ever vote in the presidential elections (or not at all), you are REALLY missing out. Local elections like these arguably have some of the largest impacts on your life.

How will that divorce / order of protection / injury case you or someone you know turn out? Will that criminal down the street get punished, or will that falsely-accused friend of yours get acquitted of charges? Will the city / county / state representatives do you proud and make this state a better place to live? These considerations (and FAR more) will be affected by how the citizens of Knox County vote (or fail to vote) in these local elections – don’t miss your chance to have your say.

To learn more about the Knox County Elections, click here to go to http://www.knoxcounty.org/election/. Or, if you want to know the Early Voting Schedule and where you can vote, click here. You can click here if you would like to see a list of the offices on the ballot, but if you want to see a sample ballot for who is running, click here.

So remember to early vote or, if you can’t get to a early voting location, then remember to vote on August 7, 2014. These decisions will affect you and/or people you know if the future, so you should have your say.

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Copyright © 2014. Nicholas W. Lee, Attorney at Law. All rights reserved. This site’s content may not be used without the prior written consent of Nicholas Lee. “Defending Tennessee” is a privately-ran legal blog and is not a public legal aid agency.

New Law Criminalizing Drugs While Pregnant – Madisonville Woman First to be Prosecuted

Jul11

What should be done when an expectant mother’s drug abuse harms or kills her child?

In answer to this, on April 29, 2014, Tennessee Governor Bill Haslam signed into law a bill that allows criminal prosecution of mothers and expectant mothers who take narcotic drugs while pregnant if the baby is harmed, born addicted, or dies as a result. This law went into effect on July 1, 2014 (click here to read Senate Bill 1391).

Now, Mallory Loyola (26 y/o) of Madisonville, TN, is the first to face prosecution under this new law. Two days after giving birth, Ms. Loyola was arrested and charged for Simple Assault. Both Ms. Loyola and her child tested positive for amphetamines, and Ms. Loyola is reported to have “admitted to smoking meth three to four days before giving birth to her child.” (Click here for the news article posted by the Tennessean). In Tennessee, Simple Assault is a Class A Misdemeanor, carrying with it possible punishment including incarceration of up to 11 months and 29 days (plus fines and court costs).

Monroe County Sheriff Bill Bivens is reported stating “[c]hildren need the chance and it’s sad when you see children who come out born into the world already addicted to drugs.”

The American Civil Liberties Union is reported to plan a challenge to this law as they claim “[t]his dangerous law unconstitutionally singles out new mothers struggling with addiction for criminal assault charges.” (Click here to read the news article posted by OpposingViews.com).

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The author of TNLawyerLee is Nicholas W. Lee, Esq., an attorney in Knoxville, Tennessee. If you or someone you know need an attorney, please click here for Mr. Lee’s contact information and contact him today for a free consultation. Also, please feel free to visit Mr. Lee’s website,www.TNLawyerLee.com or follow his page on Facebook for updates as to his law practice or new posts to TNLawyerLee by clicking here.

Tennessee to Conduct DUI Checkpoints this Independence Day Weekend

Jul3

DUI-Checkpoint

Starting today, July 3, 2014, and continuing through July 6, 2014, the Tennessee Highway Patrol (“THP”) has announced a “No Refusal” weekend (click here to read THP’s Media Release). Sobriety checkpoints have long been used on public roadways and have been deemed constitutional in Tennessee as long as certain procedures are followed. Also, as you have previously read, if you are suspected of Driving Under the Influence, your blood can be taken without your permission to be used as evidence against you in court.

Of course, there are other types of checkpoints that sobriety checkpoints – click here for THP’s list of checkpoints this Independence Day weekend. Please keep in mind that this is certainly not an exhaustive list, does not address any checkpoints that your local authorities may be setting up, and all law enforcement officers are sure you be on the look-out for those driving under the influence this weekend.

In short, please be careful while celebrating this weekend. Also, remember that if you or a loved one is unfortunately charged with DUI or another crime, you are innocent until proven guilty and you should contact a skilled attorney in your area immediately to set up a consultation.

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The author of TNLawyerLee is Nicholas W. Lee, Esq., an attorney in Knoxville, Tennessee. If you or someone you know need an attorney, please click herefor Mr. Lee’s contact information and contact him today for a free consultation. Also, please feel free to visit Mr. Lee’s website,www.TNLawyerLee.com or follow his page on Facebook for updates as to his law practice or new posts to TNLawyerLee by clicking here.

U.S. Supreme Court Unanimously Rules on Warrantless Cell Phone Searches

Jun25

Image from http://www.cbsnews.com/news/police-can-now-search-cell-phones-without-a-warrant/

Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is [ ] simple— get a warrant.

Riley v. California, 573 U.S. ____ (2014).

Warrantless cell phone searches have been addressed a couple of times by TNLawyerLee (here and here). But as of today, there is a new development out of the United States Supreme Court, significantly limiting warrantless police searches of cell phones: police generally cannot search a cell phone during an arrest without a warrant. To read the USA Today article on Riley v. California, click here. To read the full court opinion, click here.

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The author of TNLawyerLee is Nicholas W. Lee, Esq., an attorney in Knoxville, Tennessee. If you or someone you know need an attorney, please click herefor Mr. Lee’s contact information and contact him today for a free consultation. Also, please feel free to visit Mr. Lee’s website,www.TNLawyerLee.com or follow his page on Facebook for updates as to his law practice or new posts to TNLawyerLee by clicking here.

Lasers – A New Way to Catch Drunk Drivers?

Jun13

Image from http://www.huffingtonpost.com/2014/06/08/device-laser-alcohol-cars_n_5453696.html
“An illustration of how two lasers involved in the study reflected off of mirrors to reveal the presence of alcohol vapors in a test car.”

One of the greatest joys of writing this law blog is keeping up to date on current issues and developments in the law. Today’s short post deals with an intriguing technological development that its developers hope will aid police in detecting individuals who are drinking and driving.

In Poland, scientists have developed a new “laser-based device that can detect alcohol vapor–like that exhaled by someone who’s been drinking–inside a car as it passes by,” reports Jacqueline Howard of The Huffington Post (to view the full article, click here). While this device is not exactly close to being implemented in Tennessee, it is interesting to think for a second through some possibilities and ramifications of this device.

Of course, new technology aiding police in apprehending suspects is not a novel concept. However, radar guns, breathalyzers, and any other system is susceptible to making mistakes. The proposed laser device will have its own problems to work through, such as what if you are driving and your passenger is intoxicated (but you are not)? Just that simple hypothetical situation might draw into question the reasonableness of a stop based on such technology (if more than one person is present in the car).

To read more about this intriguing technological development, click here.

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The author of TNLawyerLee is Nicholas W. Lee, Esq., an attorney in Knoxville, Tennessee. If you or someone you know need an attorney, please click herefor Mr. Lee’s contact information and contact him today for a free consultation. Also, please feel free to visit Mr. Lee’s website,www.TNLawyerLee.com or follow his page on Facebook for updates as to his law practice or new posts to TNLawyerLee by clicking here.

How are Forced Blood Draws Legally Justified?

Jun6

This last week a concerned citizen learned about “No Refusal” blood draw checkpoints and contacted me asking how can that be legal. In short, the answer is that this is a sentiment shared by many among the criminal defense bar.

In Tennessee, “[a]ny person who drives a motor vehicle in this state is deemed to have given consent to a test or tests for the purpose of determining the alcoholic content of that person’s blood, a test or tests for the purpose of determining the drug content of the person’s blood, or both tests.” Tenn. Code Ann. 55-10-406(a)(1). This is often referred to as “implied consent.” Once upon a time, a citizen could refuse to allow blood to be removed from his or her own body to be used as evidence against him or herself, but not so much anymore.

In 2012, the implied consent law was modified to state that if a person refuses such a test, it is a violation of the implied consent law with possible punishments including (but not limited to) loss of your driver license and hefty fines. But currently the situation is entirely possible where you could get pulled over, asked to submit to a blood test, you refuse the blood test, and yet one is taken anyways (a “forced blood draw”).

Courts have ruled that seizure of your very body (a.k.a. your blood) can be legal in many scenarios. I imagine many readers may be screaming “but what about my right to be free from unreasonable searches and seizures?!” It is true that the Tennessee Supreme Court has ruled that “under both the federal and state constitutions, a warrantless search or seizure is presumed unreasonable, and evidence discovered as a result thereof is subject to suppression unless the State demonstrates that the search or seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant requirement,” State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000) (quoting State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)).

However, that is speaking of warrantless searches and seizures, a.k.a. warrantless blood draws. Many policing agencies have set up a procedure where a warrant is obtained from an on-call magistrate authorizing the blood draw if a person refuses. However, even if a policing agency does not first obtain a warrant, if the particular circumstances of a situation are determined to be “exigent,” a forced blood draw may be constitutional. See State v. Hutchinson (Tenn. Crim. App. 2013) and Missouri v. McNeely (2012).

There you have it. Whether this author agrees with the justification, that is how forced blood draws are allowed in Tennessee. However, as readers may be able to tell even from this elementary run-down of the Tennessee Implied Consent law (and as readers may already know from other TNLawyerLee articles on DUIs, like this one or this one), these cases can be fraught with complexities – if you or someone you know should ever find yourself facing a charge for DUI or Violation of the Implied Consent Law, speak with a lawyer in your area immediately.

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The author of TNLawyerLee is Nicholas W. Lee, Esq., an attorney in Knoxville, Tennessee. If you or someone you know need an attorney, please click herefor Mr. Lee’s contact information and contact him today for a free consultation. Also, please feel free to visit Mr. Lee’s website,www.TNLawyerLee.com or follow his page on Facebook for updates as to his law practice or new posts to TNLawyerLee by clicking here.

Barroom Brawls – on Renzo Gracie and Tennessee Self-Defense

May23

Image of Renzo Gracie from http://msn.foxsports.com/ufc/story/renzo-gracie-cousin-igor-arrested-charged-with-gang-assault-after-nightclub-incident-051914

The professional fighting world has been abuzz after the arrest of celebrity Renzo Gracie following an altercation this past Monday.

For the readers who do not follow MMA closely, Renzo Gracie is a professional fighter and a member of the Gracie Family, famed for their development of Brazilian Jiu Jitsu (or “BJJ”). BJJ is a ground fighting martial art which allows a smaller, weaker opponent to defeat a larger, stronger opponent and so has been trained extensively by many (if not most) MMA competitors. BJJ is often mixed by competitors with other martial arts such as boxing, Muay Thai Kickboxing, and Judo (hence the name mixed martial arts).

Which brings us back to this past Monday, when Renzo Gracie and friends were at a nightclub in New York. While it is yet unclear how the altercation began, Renzo Gracie was allegedly observed throwing a bouncer to the ground, leaving the bouncer with a broken arm. Other bouncers as well as Renzo Gracie’s friends joined. As reported by mmajunkie.com, “[t]wo witnesses said the men were ‘executing roundhouse kicks and other martial arts maneuvers’; one witness added that a man began to choke him by grabbing his tie, ‘and that as a result of the ensuing struggle,’ he ‘suffered substantial pain to his left knee and right shin.'” Renzo Gracie was taken into custody, made bail of $10,000 on the same day, and was due in court today to face charges of assault in the third degree. As of this post, there is no news yet as to the outcome of today’s court hearing. (mmajunkie.com and msn.foxsports.com were both relied upon for facts stated in this paragraph, click here and here to read each respective article).

While fantastical fight scenes like the ones seen in movies might be coming to mind, most MMA practicioners would probably agree that in most scenarios, fights are better avoided if possible. However, it must be admitted that there are scenarios where, under the law, people must be able to defend themselves or else be at the mercy of any wrong-doer. In Tennessee, a person’s violent actions can give rise to being charged with many criminal offenses (domestic assault, aggravated assault, and murder to just name a few), but in certain situations, justified actions can be acceptable forms of self-defense. The Tennessee Self-Defense statute (Tenn. Code Ann. § 39-11-611) states in part:

(b) (1) Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other’s use or attempted use of unlawful force.

(2) Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury, if:

(A) The person has a reasonable belief that there is an imminent danger of death or serious bodily injury;

(B) The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and

(C) The belief of danger is founded upon reasonable grounds.

Of course far more than the excerpt of this statute is needed for an understanding of Tennessee Self-Defense law (click here to read Tenn. Code Ann. § 39-17-1322), you should of course consult with an attorney if you have any questions, and of course Renzo Gracie’s criminal charges are in New York (a.k.a. Tennessee law doesn’t apply), but this author will watch this case with interest to see whether Renzo Gracie’s actions on Monday are deemed legally acceptable.

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The author of TNLawyerLee is Nicholas W. Lee, Esq., an attorney in Knoxville, Tennessee. If you or someone you know need an attorney, please click herefor Mr. Lee’s contact information and contact him today for a free consultation. Also, please feel free to visit Mr. Lee’s website,www.TNLawyerLee.com or follow his page on Facebook for updates as to his law practice or new posts to TNLawyerLee by clicking here.