Date Rape, Alcohol as the Drug

I am often asked by young men, especially high school age young men, what is the definition of rape in Tennessee. We all understand the horrific nature of the crime, however what some people do not realize is that many rapes in Tennessee are not by strangers. Many allegations of rape hinge on quite literally he said she said, and the parties know each other.

So in Tennessee what is rape? It is the unlawful sexual penetration of a victim by the defendant or of the defendant by a victim accompanied by any of the following circumstances:

Force or coercion is used to accomplish the act;

The sexual penetration is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the penetration that the victim did not consent;

The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless;

Sexual penetration is accomplished by fraud.

That is the legal definition. The question posed to me quite often is what if someone is drunk? The answer lies in the details of was the person mentally incapacitated at the time of the penetration, (penetration does not have to be with a body organ, it can be with an object).

Lets say a young couple of high school age has been drinking together, they start drinking around 8 pm, each of the individuals has about 5 beers over the course of the night. They are parked at the end of a road. The couple has never engaged in a sexual act before this night, the young man thinks it is ok to kiss on the young woman, but then thinks it is ok to proceed further by engaging in a sexual act with the young lady, while she is intoxicated. If later the next day the young lady states that she did not consent to the sexual act there can be a charge of rape filed in Tennessee. It is a matter of perspective as to whether or not she consented to the sexual act. It is here we find the he said she said problem. This situation is often referred to as Date Rape by the media.

My advice to young people is to simply avoid this situation, if you do not know whether or not she is consenting then avoid the situation all together.

Providing alcohol to a minor in Tennessee and social host liability

So your 20 year old friend wants you to buy some beer for the weekend party, no big deal right, your 21, whats really wrong? In Tennessee you can find yourself in quite the mess if your 20 year old friend explains to the police that you bought the beer. http://nashvilleduiinfo.com

Did you know in Tennessee by violating section 39-15-404 (which is the code section for purchasing alcohol for a minor), you can lose your license to drive for a year. Not only can you lose your license, you may also have to perform around 100 hours of community service, and it is a class A misdemeanor that will carry with it 11 months and 29 days probation.

Further one should know that if you furnish alcohol to someone under age 21, that underage person need only test .02% blood alcohol level in Tennessee to be considered impaired while driving. Now in Tennessee a minor under the age of 21 is eligible to serve the mandatory minimum jail sentence in Tennessee of 48 hours.

A collateral issue involving purchasing alcohol for minors is the liability civilly for the minors actions. An example might be you have a party for your daughter's friends in Nashville, you don't serve alcohol, you don't provide alcohol, but you make provisions such as everyone has to put their keys in a jar and stay the night, you patrol your yard to make sure no one leaves, and someone does leave intoxicated. You might be held liable in Tennessee based on common law theories of liability. It is the undertaking of a duty that may hold you liable, not the providing of the alcohol, if it was not sold to the minors.

Tennessee does have a statute that shields liability for this and similar actions of providing alcohol. The Tennessee Supreme Court has held that the alcohol is the proximate cause of the injury to a third party, not the person who provided the alcohol, unless the alcohol was sold to the minor and not given to the minor. However, once you take an affirmative duty to provide a safe party for the minors, you may find yourself sued should one of the minors leave intoxicated and cause harm to a third party.

Nashville Craigslist prostitution

Prostitution in Nashville, Tennessee is the crime of engaging in, or offering to engage in sexual activity as a business or being an inmate in a house of prostitution or loitering in a public place for the purpose of being hired to engage in sexual activity.http://nashvilleduiinfo.com

It is to say the least not an enjoyable moment when a client realizes that they have been caught
in a Nashville Craigslist sting for prostitution, (lately there have been many stings using the popular Craigslist). It is embarrassing, it can cost you a job, your automobile, and many other social repercussions. Some people have said to me from time to time that they thought, only the person selling sex can get in trouble, well that is incorrect in Tennessee. Nashville prostitution charges can carry a great many problems for clients, and the government does not care whether you arranged your prostitute by Craigslist or picked her up on the street, it is still the crime of patronizing prostitution.

The charge in Tennessee is called patronizing prostitution, it is a class B misdemeanor and can carry with it penalties, fines and jail time. Many people in Nashville who are charged with this crime do not realize that if you are within 100 hundred feet of a church and patronizing prostitution it becomes a class A misdemeanor and can carry with it 11 months and 29 days in jail. I might add that there is another boundary issue to consider in this charge. If you are within 1 and half miles of a school, it then becomes a class A misdemeanor and a mandatory 7 days in jail and a 1 thousand dollar fine.

There have been some arrests in Nashville for promoting prostitution, that is a class E felony and can carry a sentence in jail of 1 to 2 years. In Nashville there have been some local arrests due to promotion of prostitution through media prints via newspapers.

However, the vast majority of new prostitution stings have come via Craigslist and the internet in Nashville.

Restricted Driver's License in Tennessee

What is a restricted driver's license in Tennessee? Often you hear that you will lose your license in Tennessee if you are convicted of a first offense DUI, is that true? Yes, in Tennessee upon your conviction for a first offense DUI you will have to forfeit your license to the Tennessee Department of Safety, and if you are eligible then you may apply for a restricted driver's license. http://nashvilleduiinfo.com

If you meet certain criteria in Tennessee you may apply for a restricted drivers license. Some of the criteria are; you may not in the last ten years have had a prior DUI; you must obtain SR-22 insurance; no prior conviction for vehicular homicide; aggravated vehicular homicide; or vehicular assault by intoxication. If you meet these criteria you may apply for a restricted driver's license from the judge that heard your case or plea.

So you might ask, on a restricted driver's license in Tennessee where can I drive? Under 55-10-403(s) there are many places you may drive, some places include safety programs ordered by the court, college classes, litter pick up, religious services, and work. However one should note that being a part time student or those searching for work, does not meet the criteria.

Where do you have to go to get your restricted driver's license? In Tennessee once the judge signs you order you must take two certified copies of the Order along with your SR-22 insurance to the DMV station. It is there you will take the eye exam and driving test to obtain your restricted license.

Will the judge sign the Order for my restricted driver's license in Tennessee if I owe court costs and fines? It depends on the county you are in, some counties in Tennessee will make you pay a fraction down on the costs and set you up on a payment plan, other counties will make you pay the entire amount before they issue you the Order to take to the Tennessee DMV station. It is entirely up to the jurisdiction you are in.

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