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

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.