Nashville public intoxication and Brief Police Contact

Often people will say to me, "can the police just stop me when I am walking down the street" it is a funny question. How many times in someones life will the police ask them to stop while walking down the street. Well in some places a lot, and in other places never. However in this instance below lets assume this has to do with a Nashville public intoxication stop scenario.

In this instance lets say you are walking down West End around Vanderbilt. You are not disturbing anyone, you have been drinking, you are at least 21, it is late say around 1 a.m. A Vanderbilt police officer pulls up and ask you what you are doing? Can they do that, as with all of the 4th Amendment Nashville public intoxication questions, there are grey areas to this situation.http://nashvilleduiinfo.com

You have now found yourself in a Constitutional question, An officer may approach you at anytime, even if there is no suspicion of wrong doing. So if in the instant case above you are walking down West End in Nashville, Tennessee after drinking some alcoholic beverages the police can approach you and ask you questions, HOWEVER you have the freedom to not answer the questions, if there is no evidence of wrong doing by you, you are free to go. Your refusal to answer questions is not a reasonable ground to detain you, there has to be something more, there has to be reasonable, objective grounds for further detaining you. Nashville public intoxication requires certain elements be met before you can be charged with this crime, there are more elements than just being intoxicated and being in public.

Under the scenario you have the right to refuse to answer questions, a police officer is free to ask you questions anytime, he does not have to think you have committed a crime when he approaches you, he is free to approach you like a civilian would, but the 4th Amendment protection becomes applicable when a person does not feel free to leave. The Courts look at it from an objective standpoint, would a reasonable person feel free to leave. If a reasonable person would not feel free to leave, then it is a Seizure under the 4th Amendment, and all evidence gained could be suppressed for a 4th Amendment violation by the government.

As with all legal discussions of the 4th Amendment there is an exception to the above noted scenario, if the police believe that they have an inarticulable suspicion that crime is afoot and they suspect you are involved somehow they may perform what is known as a Terry Stop. This is a situation where they suspect you for something, say suspicious activity around a store that was broken into the night before. They can stop you, ask questions and pat you down for weapons, however this brief detention even with cause can turn into an arrest if they detain you to long, and later it is determined there was no reason to continue to detain you after their original suspicions were proven unfounded. Terry Stop cases are voluminous, this is just a small snippet of a Terry Stop.

Nashville DUI Lawyer, Nashville Criminal Lawyer, Criminal Lawyer, Criminal Law Firm, Criminal Attorney, Nashville DUI Attorney, Nashville Criminal Attorney, Daniel McMurtry

Tennessee drinking age

Recently a group of college presidents aligned and formed a group called the Amethyst Group. In discussions with each other about college binge drinking they concluded that lowering the drinking age might reduce binge drinking which has led to many deaths over the years at their universities. The group noted that they only wanted to start an open dialogue on the subject, and were not trying to change any laws at this time. There are currently 7 states considering legislation to change and or lower the drinking age, (Tennessee is not one of them) however there may be issue with highway funds from the Federal Government if these considerations pass. Highway funds are very important to a state and can effect decisions on laws, such as the Tennessee drinking age. http://nashvilleduiinfo.com

The question is should the Tennessee drinking age be 18, and will it saves lives? Without getting into a right or wrong discussion with MADD, I will try to look at it from possibly saving lives down the road by introducing alcohol to young adults while they are possibly still at home and under adult supervision. As we know, once they move out or go to college they are for the most part unsupervised. The Tennessee drinking age could change the time that a young adult comes into contact with alcohol, and where they are at in their lives when it happens.

From my experiences in college I have seen binge drinking from persons who did not drink an alcoholic beverage at all while they were 18, and living at home while in high school, and I have also had friends who grew up around parents who drank a beer or wine in front of them and at age 18 drank some themselves. Of the two types of people, those who never drank before college and those who did, I always thought, and still think the people who drank at age 18 before college where not so excited about drinking, I mean to say it was not so new to them. They had at some point been intoxicated before they got to college, and knew how to handle themselves better while drinking. The individuals who had never been intoxicated posed a great danger to others and themselves, they had no idea of their tolerance level of alcohol, and at this point they had no parental supervision. It seem like it would be better to understand the effects of alcohol on your body while still under your parents eye, and not alone either in the real world or college. If the Tennessee drinking age were lowered we might avoid this issue.

By lowering the drinking age in Tennessee it might allow a young adult to experience alcohol with some supervision, and not discover it on their own at college with no parental supervision. Lowering the drinking age in Tennessee would help demystify alcohol to young people, and let them realize in moderation it is ok. The fact is, kids in college are going to drink.

Nashville Tennessee DUI Road Blocks and the 4th Amendment

Posted on August 21, 2008http://nashvilleduiinfo.com

So how can the State of Tennessee set up a DUI Road block? Well they can, it all flows from the Supreme Court of the United States decision in Michigan v. Sitz. A Nashville Tennessee DUI Road Block is on it’s face a violation of the 4th Amendment, however there are exceptions to the violation that the Supreme Court has recognized and so followed by our Tennessee Supreme Court in State v. Downey.

It is understood that the 4th Amendment provides protection from seizures, (ie being pulled over by the police), as such the police have to have probable cause to believe that you committed a traffic violation or articulable suspicion to stop you as a motorist.

In Michigan v. Sitz the Supreme Court of the United States held that a DUI Road block does not violate the 4th Amendment as long as certain requirements are met. So what are the requirements that the DUI Road Block must meet?

(1) The gravity of the public concerns served by the seizure
(2) The degree by which the seizure advances the public interest
(3) The severity of the interference with public liberty

The Tennessee Supreme Court used this case law from the Supreme Court of the United States to decide the case of State v. Downey, in Downey the Court stated the three part test to determine the Constitutionality of the Tennessee DUI Road Blocks. Ok so how do they really apply here in Tennessee DUI Road Blocks?

(1) They must show a state interest that is so compelling that it allows an intrusion into your 4th Amendment rights to be free from unwarranted seizures, well the state did find a reason to justify the intrusion, and it was preventing Tennessee DUI under the right circumstances, ie the gravity of public concern in preventing Tennessee DUI.
(2) Does the Tennessee DUI Road Blocks work, ie, is it an effective tool, not just some random ineffective procedure. The court used statistics from prior cases to show effectiveness in this technique of preventing Tennessee DUI.
(3) Make the interference with your liberty minimal as possible.

This is accomplished in a Nashville Tennessee DUI Road Blocks by setting out guidelines that each Road block must follow. These guidelines are things like adequate warnings, length and nature of each detention they make, (meaning how long they hold each car). Safety of Nashville Tennessee DUI Road Blocks, and stopping both directions of traffic.

There are several more guidelines as set out by the Tennessee Supreme Court to meet the Constitutional muster.http://nashvilleduiinfo.com

Nashville DUI and Constitutional Warrantless Arrests

Often I am asked this question, "I ran my car into a ditch, no one was hurt, no one was with me, I walked home, can the cops come and get me without a warrant? There is no clear cut answer, it all depends on the facts of your Nashville DUI http://nashvilleduiinfo.com

Under a general principal of the Constitution of the United States warrants are needed for arrests. However, like all good rules there are quite a few exceptions, so here we go;

In a Nashville DUI case, there is an exception to the warrant requirement. If the police witnessed the breach of the peace or the act was committed in their presence, then no need for a warrant to arrest you;

A second exception is where medical treatment is required and the suspect is at the hospital, and the time is under four hours since the accident and the officer has PROBABLE CAUSE to believe an infraction of the law has occurred;

Third is when the police officer is at the scene of the accident and the suspect is at the scene, based on the police officers investigation he may arrest the suspect as long as he has PROBABLE CAUSE;

Fourth is when a felony has been committed and the police believe that they have PROBABLE CAUSE to arrest the suspect for it;

AND FIFTH, I say this because this is the one that most people ask about, so here it is.

IF THE OFFICER HAPPENS UPON THE SCENE OF AN ACCIDENT, (LETS JUST SAY YOU RAN YOUR CAR INTO A DITCH AND WALKED HOME). THE OFFICER WITHIN FOUR HOURS MAY APPREHEND YOU WHEREVER YOU ARE, IF HE HAS PROBABLE CAUSE TO BELIEVE YOU HAVE COMMITTED A CRIME. THE KEY WORD IS PROBABLE CAUSE, WHAT EVIDENCE FROM THE SCENE OF A NASHVILLE DUI DOES HE HAVE THAT WILL RISE TO THE LEVEL OF PROBABLE CAUSE TO ARREST YOU WITHOUT A WARRANT, AWAY FROM THE SCENE, AND BRING YOU BACK TO THE SCENE.

Probable cause is the argument that more than likely will decide a case such as the example above. Like much of the law, it is an argument based on the facts of each case independently.

Could someone find the Fourth Amendment it was stolen by a Tennessee Drug Search and TN DUI

http://nashvilleduiinfo.comPosted on August 15, 2008

Without getting into lengthy case law discussions, it is safe to say that the Fourth Amendment to the Constitution of the United States is lost, either it ran away on it’s own, or somebody took it, I don’t think it ran away. Ok so where did it go, and really what was it anyway? Most people say to me, “they invaded my right to privacy” ok well if we want to be technical about this, some would say a literal interpretation of the Constitution, then there really is no right to privacy, you will not find that in Constititution. It is a right derived from the Fourth Amendment, but not really mentioned.

Ok so the right to privacy is old, right? No, it was born out of a case decided only a few decades ago. We started with a right to privacy, and since that time have continued to erode it. I have said before, it is generally understood that you have a lesser expectation of privacy in your car, so Tennessee DUI, Tennessee Drug searches of your car have less Constitutional protections for you, Why is that? The Supreme Court of the United States has said it is a balancing test between freedom from unreasonable searches, (IE privacy) and public safety. From this the gate swung open the erosion of the Fourth Amendment.

So your driving down I-24 in Tennessee heading to Chattanooga, you are pulled over by a White GMC Blazer type vehicle, and an officer approaches your car, he tells you that you have violated a traffic law in some way, maybe a Tennessee DUI violation or maybe tail light out, but then he asks you, Can I search your car? What does a traffic stop have to do with him searching your car? If your not intoxicated and their is no DUI charge, or you do have a tail light out and agree to ticket, and get it fixed, why should that be a reason to ask to search your car?

The Supreme Court of the United States has said that pre-textual stops are ok, ie if you break a traffic law it is ok for the police to stop you, even though their real intent is to ask you about drugs. Should the police officer inform you that you have the right to say no to the search? If we protect the 5th Amendment with the Miranda warnings, why don’t we protect the 4th Amendment with a warning that you have the right to say no?

Few people know that you have a right to say no to the search, but what if you say no? In short it works like this, the clock starts ticking, meaning if you say no, and the police are running your drivers license and writing you out your ticket, they can call for a drug sniffing dog, and if you are stopped by a large White Blazer type vehicle, chances are they have the drug dog in the back of their car, surprise.

Lets say there is no dog with the police when they pull you over, but they call for a drug dog from another officer who must drive to the scene, then the clock is ticking on what a reasonable time is that they can hold you for the traffic ticket they are writing you. If the courts decide it is unreasonable, then any evidence they find is supressed, however if the amount of time they hold you for a speeding ticket is 25 minutes and drug dog arrives, and makes a positivie hit on your car, probably the Tennessee Courts will not supress any evidence that the police find.
So the real question is this, Why should the police be allowed to ask to search your car when they only stop you for a traffic violation or a Tennessee DUI that is unfounded, and have no probable cause to believe that you are doing anything wrong?

If we carried probable cause to the next phase of a traffic stop to protect the Fourth Amendment, what would be wrong with that? To protect the Fourth Amendment like we do the Fifth with Miranda Warnings, all we would have to do is this, if it takes probable cause to believe you broke a traffic violation to pull you over, then why not require that there be probable cause to ask to search your car? It would simply be a two pronge test to protect the Fourth Amendment in regards to traffic stops. Add in a simple reading that you have the right to say no to a search, and the erosion of the Fourth Amendment might slow down.

TN DUI LAWYER

I was asked the other day by a former client, was there any type of judicial diversion available for a TN DUI, now the first thing is, what is judicial diversion? It is a statute in Tennessee
40-35-313 that allows a defendant to be placed on probation, and if the defendant in Tennessee completes probation they are allowed to have the charge expunged from their record. However, there is one problem with 40-35-313, it does not exist for a TN DUI charge under 55-10-403(b)(1). http://nashvilleduiinfo.com

Tennessee Statute 40-35-313 is available for other charges such as simple possession, theft, etc. There are however some severe consequences for failure to follow the probation period requirements. Upon failure of an individual to follow the requirements of probation the State of Tennessee can file a probation violation. If the court finds by a preponderance of the evidence that you violated probation, you are then found guilty of the charge that you accepted judicial diversion on. You will be sentenced under the Tennessee Sentencing Act. Your sentence will depend on what type of charge you accepted 40-35-313 on, and what range of time that charge carries with it. http://nashvilleduiinfo.com

Tennessee Statute 40-35-313 is one of the most valuable tools an attorney can use for a first time offender client. Most people do not know that a simple possession conviction may keep you from obtaining funds from the government for college, it could also affect your insurance rates, and ability to obtain credit. 40-35-313 is available for some misdemeanors and some felonies. There are many alternatives to having your case go before a jury, and 40-35-313 is one good example of a viable alternative in Tennessee Courts.

Tennessee DUI Bars

Have you ever wondered why you never hear about holding bars liable for Tennessee DUI accidents? Over and over again you hear about how to punish the Tennessee DUI driver, but no one really mentions the bars, not even MADD, why don't we rewrite the Dram shop Act in Tennessee and put some teeth into it. In Tennessee for anyone to hold a bar liable for serving someone until visible intoxication (and they harm someone in a wreck) they have to be shown to have served that person, knowing beyond a reasonable doubt that the person they are serving is intoxicated, including every element of the visibly intoxicated person standard definition as defined by the Tennessee Alcohol Bureau. This is the same standard that you have to meet to convict someone in a jury trial of murder. This is such a high standard to meet that it keeps most bars from being liable in the event they serve someone to the point of visible intoxication, and that person hurts another person. http://nashvilleduiinfo.com

Under Tennessee Code § 57-10-101, no judge or jury may pronounce a judgment awarding damages to or on behalf of any party who has suffered personal injury or death against any person who has sold any alcoholic beverage or beer, unless such jury of twelve (12) persons has first ascertained beyond a reasonable doubt that the sale by such person of the alcoholic beverage or beer was the proximate cause of the personal injury or death sustained and that such person:
(1) Sold the alcoholic beverage or beer to a person known to be under the age of twenty-one (21) years and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold;or
(2) Sold the alcoholic beverage or beer to an obviously intoxicated person and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold.

The legislature has passed the Responsible Vendors Act and the 1995 Alcohol Responsibility Act, these acts provided standards and tests that servers and clerks had to pass to be able to serve alcohol, and provided a responsible server and or clerk program. That seems pretty good, however some small things were missing. Why is the standard set at Beyond a Reasonable Doubt for each element of serving a visibly intoxicated person? Why is an visibly intoxicated person required, and not just an intoxicated person like the standard for a Tennessee DUI in criminal court.The first question is why are we at a Beyond a Reasonable Doubt Standard in a civil matter? If it is a civil lawsuit against a bar for serving someone to the point of intoxication then why not use the civil law standard of preponderance of the evidence, if it is good enough for every other action in civil court, then why is it not good enough to use against bars? Preponderance of the evidence is a much lower standard than Beyond a Reasonable Doubt. You must prove every element of this accusation and claim (serving a visibly intoxicated person) against a bar by Beyond a Reasonable Doubt Standard.

My only question remains, why does the civil law standard not apply to this civil law action in Tennessee.The second is the language that the Tennessee Alcohol Bureau (the legislature allowed the TAB to set the definition of what a visibly intoxicated person is) uses to establish the intoxication of a patron at a bar, by the server, it is visibly intoxicated, as apposed to intoxicated. In a criminal matter against a Tennessee DUI charged driver, it is not visibly intoxicated, it is intoxicated. So why not use the same standard, intoxicated should mean intoxicated no matter what courtroom your in, civil or criminal.

In civil trial law the standard for proving the other side is liable for your injuries is by a preponderance of the evidence, essentially a football field and you crossing the 50 yard line, so why cant we hold bars civilly liable based on this standard of by a preponderance of the evidence that they served someone to the point of visible intoxication? Why do the bars get to use a criminal standard of proof in a civil matter for their defense? Why is the Dram shop Act written to allow them a much less chance of being liable. It just makes no sense to allow bars a different standard in civil court to escape liability. Yet no one comes forward to change this law and apply a different standard for bars to be liable, the laws just continue to come forward to punish the first time offender of a Tennessee DUI more harshly.

Why not be fair and use the standard of preponderance of the evidence just like most all other civil cases use in civil court.

Posted by Daniel L. McMurtry at 1:00 PM 0