Tennessee guns, felons, National Parks, and DUI

There are consequences to having a handgun and a DUI at the same time. In Tennessee your Handgun Carry Permit can be suspended for the entire length of your sentence. You may be able to pay reinstatement fees upon the completion of your sentence, HOWEVER, you cannot carry your handgun during your probation period, it is illegal. http://nashvilleduiinfo.com

If you have been found guilty of two DUIs in the last 10 years you will not able to obtain a Handgun Carry Permit in Tennessee. In no case are you permitted to obtain any type of weapon once you become a felon, this is a Federal Law and carries with it a sentence that is served at 100 percent. In Tennessee a Fourth Offense DUI is a class E felony.

So what does a felony really mean to me? I hear this a lot, and my answer is everything. A felony is serious, it carries with it many things, here are just a few: in some countries you are not permitted to enter if you have been convicted of a felony or a misdemeanor DUI; you lose your right to vote; you are rendered infamous; you will always have to answer yes to your conviction on any government application; you are prevented from owning a firearm; you may be eligible to have an enhanced sentence should you be convicted of any other felony in your lifetime; you must submit a blood sample to the National DNA Bank as held by the United States Government; it could affect your ability to obtain a mortgage to buy a home; many countries will not permit you to enter if you are a felon, (recently Martha Stewart was denied entry into England based on her being a felon). Being a felon carries with it a lifetime of problems that one must deal with.

Currently in Tennessee you are not permitted to carry a firearm where alcohol is served. There was a bill put before the legislator to permit this, it has not moved very far, and just my thoughts, it will not pass. So remember whether you have a permit or not, YOU cannot carry your weapon into a place that serves alcohol in Tennessee.

In the United States Senate there is currently strong debate on allowing accessible weapons in National Parks, (currently your weapon must not be accessible to you, ie the trunk of your car). I suspect this debate began because of the many attacks and one recent murder of a young female hiker that occurred in the parks over the years. I believe that one should be able to carry their handgun (with a handgun carry permit) in the National Parks. Many of the trails such as the ones in the Smokey Mountains and the Appalachia are extremely secluded, you don't know who you will come into contact with. If you knew that the hiker you were coming into contact with might have an accessible loaded 44 magnum pistol and could blow a hole in you the size of a soccer ball, would you try to rob that person, and or harm them? I really doubt it. Allowing accessible weapons in the National Parks will deter crime, and protect hikers on secluded trails. To the people who would say that everyone would have an accessible gun in the National Parks, if they are right, it would simply even the playing field against the people who intend to do harm against innocent people.

What is a Preliminary Hearing?

The Supreme Court of the United States provided that the Fourth Amendment to the Constitution did not allow for arrest without probable cause, and if there was an arrest there must be a determination by a judge following the arrest as to whether or not there is probable cause to continue your case. The hearing for that determination is called a preliminary hearing, the judge need only reach the level of probable cause, not beyond a reasonable doubt. http://nashvilleduiinfo.com

Although this right to a hearing comes from the Fourth Amendment, it is not required by the Constitution. This means that if you are indicted (the grand jury indicts people with the a State of Tennessee prosecutor presenting the case) you do not get a preliminary hearing, although you can still ask for one from the Tennessee Criminal Court Judge once you are arraigned.

The main purpose of the hearing is to determine if there is sufficient evidence to subject you to criminal court and all the formal proceedings that go with it. It is a great chance for the Tennessee defense attorney to hear and see what the state has as evidence to prosecute you.

In a Tennessee DUI it could be the blood work results, the officer's testimony, the BAC from the breathalyzer or statement from other witnesses. At preliminary hearing very rarely does the defendant testify. At this stage, even if the charges are dismissed the State of Tennessee can still present your case to the Grand Jury. If your case is dismissed at preliminary hearing and you are indicted later on, you may well have to make another bond. Most people do not realize that jeopardy has not attached, (jeopardy is what prevents one in The United States from being retried for the same crime after an acquittal). Preliminary hearing in Tennessee is just for the purpose stated above, it is not about your ultimate guilt or innocence, it is only about whether there is sufficient probable cause to continue to pursue the case against you.

A good preliminary hearing can be invaluable for the defense, it can allow for a preliminary case evaluation and get testimony that is preserved for the remainder of the case.

In one particular case my client was charged with attempted first degree murder and the preliminary hearing made the difference between being convicted and being acquitted. The difference was that a witness had changed his testimony and everyone had forgotten. However upon reviewing the witnesses prior testimony it was obvious to the jury that the testimony had changed, and it had a tremendous impact upon the jury. It allowed them to acquit my client of attempted first degree murder.

Can cops pull me over for nothing?

Many more times than I can count, someone has asked me, "Can the cops pull me over for nothing?" My answer is always, "They can't just pull you over for nothing". But as always the devil is in the details, what does it take for the police (including Tennessee State Troopers) to be able to pull you over in your car? http://nashvilleduiinfo.com

Lets just start with the presumption that you have a lesser expectation of privacy in your car, (privacy is derived from the 4th Amendment to the Constitution of the United States to be free from unreasonable search and seizure)for public policy reasons such as public safety. So starting with that premise, what does it take to get pulled over? There are two ways to find yourself pulled over in your car in Tennessee by the police, one is Probable Cause that a Tennessee traffic violation has been committed, the other is Reasonable Suspicion that crimes is a foot supported by specific and articulable facts. Ok, now what does that really mean?

Probable Cause to believe a Tennessee traffic violation has occurred, it is quite simple regarding this requirement, if you are violating a traffic law, they can pull you over. Probable cause could be a license tag expired, no headlights on, and failure to stop at a stop sign, the list can go on for as many traffic rules as there are in Tennessee. They can also pull you over in Tennessee for violation of the seat belt law.

Pulling someone over in Tennessee for a traffic violation under probable cause is simple enough, but the complex part of this stop becomes, how long can they hold you once the reason for the stop is over, at what point does that become unreasonable and violate your Constitutional Rights. In essence, once the stop is over for the original reason they stopped you, have they obtained further evidence to continue to hold you for something else they suspect you of, this is the argument that is contained in so much case law from The Tennessee Courts and the Supreme Court of the United States. Each case stands on its own facts to determine what point and time a valid stop under Probable Cause becomes invalid.

What is Reasonable Suspicion that crimes is a foot supported by specific and articulable facts? if you have not violated a Tennessee traffic law, how can they pull you over? What are the specific and articulable facts? They are facts that the police can specifically point to that taken with rational inferences can allow for a stop of your vehicle.

How does that (reasonable suspicion) work in Tennessee? Lets say there is a car parked behind the Piggly Wiggly in Nashville, just sitting there at night, say around 12 midnight. The car is breaking no laws that we know of, so this could not be a stop based on probable cause of breaking a traffic law. The next step would be, is there reasonable suspicion in the police officers mind supported by specific and articulable facts to make the brief detention of the car. Well the officer thinks it odd that the car is sitting there, is that enough? probably not. The next fact might be that there had been some break ins at the Piggly Wiggly in recent days, and the surveillance camera caught a car pulling away from store after one of the break ins. Is this enough, probably, the police officer can probably stop the car from leaving. You can say this is the totality of the circumstances that resulted in there being specific and articulable facts for the officer to make the stop. The facts of the break ins, being after closing hours, a car sitting behind the store, and the police officers own observations, all these things would probably be specific and articulable facts that the office could then draw rational inferences from to think crime is about to happen or has happened. Thus the stop of the vehicle behind the Piggly Wiggly becomes valid.

Can they just stop me arbitrarily to check my drivers license? No, absent some other information that they would have to know about you, they cannot just pull you over to check your license.

The Mary Winkler trial

The Mary Winkler trial presents a great example that undisputed facts are not always detrimental to the defense. In the Winkler trial there was no disputing that she in fact shot her husband point blank while he was asleep, that really was never in dispute. So what made this trial so different from other first degree murder cases, how can someone actually have those undisputed facts in Tennessee, and not get convicted of first or second degree murder? Mary Winkler was convicted of Voluntary Manslaughter.

From my understanding of the case, no one was called a liar, meaning again there was no disputing the facts of how he died, however what was so interesting was the facts about why she killed him. It is hard to say that those facts were in dispute, because only Mary Winkler could tell those, either you believed her or you did not, there was no dispute from any living human being.

It is my understanding from the trial that the couple was involved and belonged to a Church of Christ, the Church of Christ very much frowns on divorce, I think this is another fact that no one would disagree on during the trial. I think both sides could agree that the church was very apposed to divorce on strong literal interpretations of the bible, as the Church of Christ believes the bible literally, (some religions do not). This would come back again when Ms. Winkler testified, as she testified about sex acts that she performed with her husband that she did not like, some of these sex acts even between consenting adults married would also be frowned upon by the church that they belonged to, so once again we have another fact that no one really can dispute, the only person that knows the validity of whether that happened was Mary Winkler. She testified that it did, so who could the prosecution call to dispute that.

When Winkler took the stand the trial became about so much more than the facts of her shooting her husband, it became about what caused her to shoot her husband, the fact that she shot her husband became far less the focus, and more of a result of what she said he did to her.
In a since, the facts that she talked about on the stand became facts that no one could dispute, it became about, do you believe her?

Another note about the trial, there were a large number of women on the jury panel, in Tennessee women really come out to vote in local elections when a woman runs for political office. For the most part women really do support women in Tennessee in regards to politics, and the right to defend themselves from men. So the second great element of this trial is or was in place, a large number of women who I believe did not enjoy hearing about Ms. Winkler being forced to do sexual acts or dress a certain way for sex. In essence I don't think they liked the idea of this mother being forced to do things against her will, and when she opened a bag on the stand while testifying to show the jury what she had to wear, I think the jury had seen enough and thought she had a right to do something to stop this. There was no way to bring in a witness to prove she did not have to do these things, I mean how could anyone dispute what went on in her bedroom.

And lastly, how this all worked together, it worked together because she had a good attorney who understood in the south that women always can defend themselves; people should always be able to defend themselves in their home; sometimes religious values can allow for a person to commit what would otherwise be a wrong into a right, in essence a wrong can be justified by circumstances, in this case, the alleged abuse justifies murder; and sometimes a trial is not about the facts of what happened. And always remember in the south women do support women in politics, and the court system.

Criminal Law, myths and truths

This site is dedicated to the real world of criminal law, not just theory, but how criminal law really works in the every day world. It will explore and discuss urban myths and legends about criminal law in an easy to understand format. While we will discuss criminal law in some case law, each post will try to relate that case to a real world situation that might actually happen. I will try to relate some trial experiences of myself and others that are close friends to explain how criminal law works in the trial setting. Much of the simple format that I explain criminal law in was taught to me by one of the best civil lawyers I have ever met. Quite to the point I learned from him, nobody really likes lawyers, and if you speak like a lawyer, (like we learned in law school), your chances of conveying your message to others is very low.

There are many urban myths about criminal law, this site will touch on many of them. Some quick notes will be things you often hear like, "you get more time for having pot than you do murder", "if you shoot a prowler outside your house, drag him inside the home", "I shot him below the waist, that can't be attempted first degree murder", and "I have a Tennessee Concealed Weapons Permit", no, there is no such thing, it is a Tennessee Handgun Carry Permit". I have always been fascinated by these myths, and I would like to explain and discuss how some might be true, and others are just not true at all.

The myths and rumors of criminal law is what drove me to law school, (as I came from a blue collar background and we had no family lawyer) I actually wanted to know, is that really true, and what does the Constitution of The United States really mean to me, and my day to day life. Having been taught by some professors who were students of now sitting Supreme Court Justices I learned in legalize, while this is good for law school, it is not good to speak this way with jurors and society at large, it does not explain how the law really applies to everyday life. Speaking in the terms of pre-textual stops, does not really explain the question of, "can they pull me over for having a tail light out, i know they really wanted to ask me about drugs".

This site may include from time to time civil case law, as well as political commentary, after all the most important way to protect your rights as a United States Citizen is to exercise your right to VOTE.

I hope you enjoy this site, and it proves useful to you.