Lasers – A New Way to Catch Drunk Drivers?

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."

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.

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?

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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.

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.

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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.

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.

Let’s Talk Marijuana – Updates Involving the Controversial Plant

Let’s Talk Marijuana.

Within the past year, you might have heard how Colorado and Washington have “legalized” marijuana.  While the plant still remains illegal in Tennessee (indeed, under certain circumstances possession of marijuana can turn a Tennessean into a convicted felon), the Huffington Post published an article Tuesday touting the benefits Denver has enjoyed since recreational marijuana sales were legalized (click here to read the entire article, video included).  While many opposing any sort of legalization of marijuana argued that crime rates might go up, it is reported that Denver’s crime rate has actually fallen (click here to see denvergov.org’s statistics).  Additionally, the Huffington Post reports “[n]early $13 million has been added to state coffers in tax and licensing fees from Colorado’s recreational and medical marijuana markest — $7.3 million of that from recreational marijuana.”

However, one misconception this author often encounters is that people think marijuana is actually legal in those states.  Rather it must be understood that while states may attempt to legislate marijuana, or to “legalize” it, marijuana is still illegal under federal law.  This is a lesson some citizens find out the hard way, like the Harvey family from Washington is currently discovering.  As reported by theguardian.com, “Larry Harvey, a 70-year-old medical marijuana patient with no criminal history, three of his relatives and a family friend each face mandatory minimum sentences of at least 10 years in prison after they were caught growing about 70 pot plants on their rural, mountainous property.”  (click here to read the entire article).  Moral of the story – just because the state government doesn’t prosecute you doesn’t mean the federal government cannot.

Of course with medical marijuana appearing on the ballot later this year in Florida, there are many still against the legalization of marijuana (click here for just one example), so this will continue to be an interesting topic to watch.

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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.

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.

 

This Week in the Law – Cell Phones, Killing, and Criminal Pregnancies (oh my)

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Image from scotusblog.com.

As loyal readers already know, this legal blog often focuses on contemporary legal issues.  Accordingly, the Friday Afternoon Reads (what I have come to call my weekly posts as they are posted on, well, Friday afternoons when most people’s levels of motivation are not exactly at their highest) often highlight a significant legal development from the past week.  However, this past week has been especially busy and so any post doing it justice will have to discuss at least three things.

First up is the issue of warrantless cell phone searches.  As you might recall, one of this blog’s first posts was about when police can search your cell phone without a warrant (click here to view).  Fast forwarding to this past Tuesday, the United States Supreme Court heard arguments in Riley v. California and United States v. Wurie as to when searches of cell phones should be permissible.  If you would like to learn more about these cases, click here to read the reporting from scotusblog.com or click here to read the reporting from the New York Times.  The legal scholars among you will definitely be watching to see where the Supreme Court comes down on these cases.

As a side note, even back in 2012 when the article “Cell Phone Searches” was posted, it was already apparent that pass-code protecting your phone was a good idea.

Next up from this week in the law is the topic of killing, more specifically the execution of an Oklahoma man, also this past Tuesday.  If you need a quick refresher on the status of the death penalty in the United States, click here to read “Florida and the Death Penalty in 2014.”  In short, many citizens oppose the death penalty as being immoral and/or an overly cruel punishment, and those people must be up in arms after the execution of Clayton Lockett this week.  Mr. Lockett was “accidentally killed” in the middle of the state’s efforts to execute him.  I will skip over the gruesome details, but suffice it here to say that Mr. Lockett suffered.  A lot.  Click here to read the reporting on Mr. Lockett’s execution from Slate.com.

And the final topic for this week in the law is what was referred to in this post’s title as “criminal pregnancies.”  As some of you might know, the Tennessee Legislature passed into law a statute making it a criminal offense punishable by up to 11 months and 29 days in jail in certain situations were women use certain drugs while pregnant.  Proponents of this measure seemed primarily driven by a desire to protect unborn children, while opponents seemed primarily driven by the belief that women facing addiction issues will be less likely to come forward for help when they could be convicted.  Click here if you would like to read more on this topic from thinkprogress.org.

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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.

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.

Is America Still Racist – A Brief Post in Light of Shuette v. Coalition to Defend Affirmative Action

"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character."        - Martin Luther King, Jr. -  Image from kids.nationalgeographic.com

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.”
– Martin Luther King, Jr. –
Image from kids.nationalgeographic.com

In the grand scheme of things, it was not too long ago in our nation’s history that Martin Luther King, Jr., delivered his now-famous words, “I have a dream.”  And, indeed, there are many who believe that this dream has been (or is close to being) realized, at least in many areas of the country.  However, there are many who believe that, at least in other parts of the country, the dream is not yet here.  These competing viewpoints came front-and-center this week in the United States Supreme Court case of Shuette v. Coalition to Defend Affirmative Action.

Sparing you an exhaustive history of racial equality in the United States, we will fast forward to the year 1978 and the Supreme Court case of Regents of the University of California v. Bakke, 438 U.S. 265 (1978).  At issue in that case was the use of “affirmative action” in college admission policies.  Affirmative action, known by some as positive discrimination, is the act of or policy of favoring individuals of historically disadvantaged or discriminated against groups.  In Bakke, the United States Supreme Court stated it was unconstitutional to set racial quotas for college admission classes (an example would be to say that 20% of the incoming class has to be of a certain minority group), but that it is constitutional to consider race as one of many legitimate factors when considering an individual for admission.

Certainly, there are many arguments for and against affirmative action.  One argument for affirmative action is that, as a nation, we have placed groups of citizens at a disadvantage and so we must affirmatively level the playing field.  One argument against affirmative action is that two wrongs do not make a right (discriminating does not cure past discrimination).  Hopefully the goal being that one day race will not be an issue at all (whether belong to the camp of people who believe that day is here or near, or to the camp of people who believe we still have a ways to go, is another issue).

Fast forwarding to this past Tuesday, the Supreme Court decided in the case of Schuette that states are also at liberty to pass laws outlawing schools from considering race at all when considering an individual for admission.  Essentially, schools may still consider race as a factor, but only if it is in a state where the people have not voted that race should not be a factor.  As summarized by Justice Kennedy, “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. “

Sources included: click to read the full opinion of Shuette v. Coalition to Defend Affirmative Action; click to read the full opinion of Regents of the University of California v. Bakke; SCOTUSBlog.com; “U.S. Supreme Court gives states freedom to prohibit use of affirmative action for school admissions,” and article by Robert Barnes of the Washington Post; “The Case For Affirmative Action,” by Charles J. Ogeltree, Jr.; and “The Case Against Affirmative Action,” by David Sacks and Peter Thiel.

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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.

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.

 

 

 

 

 

 

 

 

The Right to Lie – Freedom of Speech in 2014

The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. United States v. Alvarez, 132 S.Ct. 2537 (2012).

On Tuesday, April 22, 2014, the United State Supreme Court is scheduled to hear the case of Susan B. Anthony List v. Driehaus.  In short, if it is found that Susan B. Anthony List (“SAB List”) (a pro-life, nonprofit organization) has standing, then the question that will be before the Court is whether a law that criminalizes false speech about a political candidate is constitutional or if it is a violation of our American Right to Free Speech.

On the side of SAB List is a long-standing legal tradition in our country of an extreme dislike for limiting free speech, especially when that particular type of speech is discriminated against due to it’s content.  For instance, the United State’s Supreme Court ruled in the case of United States v. Alvarez that the Stolen Valor Act of 2005, which made it a crime to falsely claim one has received a military decoration, was unconstitutional (full court opinion can be read here).

It should be mentioned that in Alvarez, the Court took notice that there are situations where the freedom of speech can be constitutionally limited (such as speech that causes harm, defamation and threats being examples).  Two possible questions this case could boil down to in SAB List v. Drihaus is (1) does the speech at issue cause harm that we need to prohibit, and (2) is the law at issue the correct way to do it?  At least to the second question, the law has its work cut out for it – restrictions of speech based upon that speech’s content is subject to an extremely heightened scrutiny in this country, one that few laws ever survive.

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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.

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.