Public Intoxication –

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!

_________________________________________________________________

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.

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

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).

_________________________________________________________________

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.

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.

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.

Tennessee to Conduct DUI Checkpoints this Independence Day Weekend

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.

_________________________________________________________________

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.

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.

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.

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

 

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.

_________________________________________________________________

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.

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.

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.

How are Forced Blood Draws Legally Justified?

Image

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.

_________________________________________________________________

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.

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.

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.

 

Barroom Brawls – on Renzo Gracie and Tennessee Self-Defense

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.

_________________________________________________________________

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.

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.

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.

Red Light Cameras: Making Streets Safer or Unconstitutional Money Machines?

Picture getting home from work one day, running out to check the mail, and finding that you have a ticket waiting for you in the mail.  The ticket alleges that you have broken a traffic ordinance and must pay a fine or show up for court.  You don’t know what this ticket is talking about, so you do a little research and find out that a traffic camera recorded you driving a month ago where you slowed down at an intersection (but did not stop) and then you made a right turn on red.  A camera  sent you a ticket?  

Citizens across the nation find themselves in situations like these on a daily basis.  According to the Governors Highway Safety Association (“GHSA”), “12 states, the District of Columbia, and the U.S. Virgin Islands have speed cameras currently operating in at least one location” and “24 states, the District of Columbia, and the U.S. Virgin islands have red light cameras operating in at least one location.”  (See http://www.ghsa.org/html/stateinfo/laws/auto_enforce.html).  The GHSA lists a number of different legal consequences that might apply in different states, including in Tennessee where points won’t be added to your driving record, but you can be accessed a fine of $50 per violation.

Advocates for the use of traffic cameras provide such arguments that the traffic cameras make our streets safer and it is like having extra officers on the streets.  Opponents argue that traffic cameras might actually increase accidents, are just money machines to raise funds for the government, and/or are downright unconstitutional. And these differences of opinion have given rise to legal actions across the nation.

One such instance arises out of California in the case of Howard Herships v. California.  As reported by Dennis Romero of LA Weekly, Herships received a number of traffic camera tickets and has argued that they are unconstitutional as they violate the U.S. Constitution‘s Confrontation Clause (namely, his right to confront his accuser) (click here to read Dennis Romero’s article).  At Herships’s trial, a police officer was allowed to testify as to the authenticity of the traffic camera pictures and videos, even though the officer did not personally observe Herships breaking a law (see http://www.scribd.com/doc/214945429/Howard-Herships-Red-Light-Camera-Cert-Petition-Filed-Copy).  The problem, worded colorfully by Dennis Romero, is “how can you [confront your accuser] if your accuser is a camera?”  Now Herships is asking the U.S. Supreme Court to hear his case.

Each year the U.S. Supreme Court turns down hundreds of cases seeking an audience with the Justices, as is their right.  As of now, the Supreme Court has not decided whether to hear Herships’s case and may decline to do so.  But traffic cameras are a part of daily life across the nation, a part that many citizens would like to see go away.

_________________________________________________________________

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.

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.

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.