BARTLETT INJURY & TRIAL LAW
Nashville and Franklin, Tennessee
Tennessee Supreme Court Holds Cities Not Required to Share Liquor Tax Proceeds with Counties:
In five separate lawsuits, the Tennessee Supreme Court held today that cities with their own school systems are not required to share with counties the tax proceeds the cities receive from the sale of liquor for on-premises consumption, called “liquor-by-the-drink.”
Tennessee imposes a 15% tax on liquor-by-the-drink sales. Except in private clubs, sales of liquor-by-the-drink are only allowed in cities or counties that have approved it by referendum. Businesses such as bars that sell liquor-by-the-drink collect the tax from customers and forward it to Tennessee’s Commissioner of Revenue.
Under Tennessee law, the Commissioner of Revenue keeps half the tax proceeds for general education purposes. The Commissioner then sends the other half back to the city or county in which the liquor-by-the-drink sales were made. The five lawsuits centered on what happens to tax proceeds sent back to a city with its own school system that has approved the sale of liquor-by-the-drink when the county in which the city is located has not approved such sales.
For over thirty years, cities that have approved the sale of liquor-by-the-drink have kept their portion of the liquor-by-the-drink tax proceeds and used them for their own independent school systems. The cities have not shared the liquor-by-the-drink proceeds with the counties.
In April and May 2014, five Tennessee counties—Blount County, Bradley County, Coffee County, Sullivan County, and Washington County—filed lawsuits against cities that had been receiving liquor-by-the-tax proceeds since 1980. None of the five counties had approved the sale of liquor-by-the-drink. All five lawsuits claimed that Tennessee statutes required the cities to share a portion of those tax proceeds with the county schools. The cities disputed the counties’ claims, arguing that the statutes allowed the cities to keep the tax proceeds for their own schools.
In the five cases, the trial courts reached varied results, some holding in favor of the counties and others holding in favor of the cities. The cases were all appealed. In four of the appeals, a panel of judges on the Court of Appeals held in favor of the cities. In one case, however, a different panel of judges on the Court of Appeals held in favor of the county.
To resolve the conflict in the Court of Appeals’ decisions, the Tennessee Supreme Court granted permission to appeal in all five cases. The Supreme Court held in favor of the cities in all five appeals.
In its opinion, the Court noted that, for over thirty years, cities and counties across Tennessee had been handling liquor-by-the-drink tax proceeds in the same way: cities kept their portion of the tax proceeds for their own schools and did not share the proceeds with the counties. The Tennessee General Assembly was aware of this longstanding practice. During that thirty-year period, the General Assembly amended the liquor tax laws several times, but it chose not to amend the laws on the cities’ responsibilities as to distributing the liquor tax proceeds. This indicated that the legislature agreed with how the cities and counties were applying the liquor tax statutes.
Considering the specific language in the statute, the legislature’s awareness of the cities’ thirty-year practice of keeping the liquor tax proceeds for their own schools, and the legislature’s failure to amend the statute during that thirty-year period, the Supreme Court held that the legislature did not intend to require the cities to share the tax proceeds with the counties.
New Tennessee Laws effective July 1, 2018:
TENNESSEE LEGISLATURE -
A. CRIMINAL PROCEDURE:
1. PUB. CH. 876: “Expunction fee”:
i. This bill lowers the expunction fee from $350 to $180 for a defendant whose charge was dismissed due to successful completion of a pretrial diversion program.
2. PUB. CH. 951: “Guilty of Incest”:
i. This bill adds incest, as described in § 39-15-302, to Probation Conditions Discharge Expunction from official records, section 40-35-313(a)(1)(B)(ii)
ii. This bill prohibits a person charged with incest from participating in judicial diversion.
3. PUB. CH. 1018: “Juvenile Offenders - Expunctions”:
i. This bill provides for the expunction of records of certain juveniles for adjudications involving conduct that would constitute the offense of prostitution or aggravated prostitution if the conduct upon which the conviction is based was found to have occurred as a result of the person being a victim of human trafficking.
4. PUB. CH. 801: “Law Enforcement”:
i. This bill requires that each law enforcement agency ensure that, whenever a person is arrested and taken into custody by an officer, the person is asked whether that person is a parent or legal custodian of any children that will be left unattended by the person’s arrest.
ii. This amendment requires each law enforcement agency to develop policies and procedures for conduction welfare checks on any child identified as endangered.
5. PUB. CH. 934: “Sentencing – Henry’s Law”:
i. This bill requires that a person convicted for second degree murder resulting from unlawful distribution of schedule I or II drug where the victim is a minor by punished from within one range higher than the sentencing range otherwise appropriate for the person.
6. PUB. CH. 826: “Bounty Hunters”:
i. This bill removes the provisions for bounty hunters from other states and permits bounty hunting bounty hunting in this state only by an individual who:
1) Is an agent of a professional bondsman credentialed in this state;
2) Has successfully completed continuing education training in this state, and presents a pocket card certifying such training; and
3) Submits to a criminal history background check at the sheriff’s office at the county of the person’s residence in this state.
ii. This bill also requires, in addition to continuing education requirements, a person to complete training and pass an examination prior to beginning work if:
a. The bounty hunters will carry a club, stun gun, chemical spray, night stick, or firearm.
iii. Also, this bill prohibits bounty hunters from entering private property for the purpose of taking a person into custody without the express permission of the private property owner, unless accompanied by law enforcement.
B. CRIMINAL OFFENSES:
1. PUB. CH. 643: “Sexual Offenders”:
i. This amendment defines “playground” for purposes of sexual offender restrictions as any indoor or outdoor facility that is intended for recreation of children and owned by the state, a local government, or a not-for-profit organization.
2. PUB. CH. 586: “Order of Protection for Domestic Violence”:
i. This bill revises the procedure for protecting an alleged domestic abuse victim after a finding of probable cause of domestic abuse
ii. Under Present Law:
1) A court will issue a temporary order of protection if, at a respondent's initial appearance following an arrest for a crime involving domestic abuse, the court finds there is probable cause to believe the respondent either caused serious bodily injury to the alleged domestic abuse victim or used or displayed a deadly weapon. The order of protection may include any relief available under an ex parte order of protection; and
2) Any offender arrested for the offense of stalking, aggravated stalking, especially aggravated stalking, or domestic abuse must not be released within 12 hours of the time of arrest. The magistrate or other official duly authorized to release the offender (official) may, however, release the offender in less than 12 hours if the official finds that the offender is not a threat to the alleged victim. If the offender is released prior to the conclusion of the 12-hour period, the official must make all reasonable efforts to directly contact the victim and inform the victim that the person charged with the offense will be released prior to the conclusion of the 12-hour period.
iii. This bill revises the provisions described above in (1) so that following a finding of probable cause to believe the respondent either caused bodily injury to the alleged domestic abuse victim or displayed a deadly weapon, an official will no longer issue a temporary order of protection. Instead, unless the official finds that the offender no longer poses a threat to the alleged victim or public safety, the official will be required to impose the 12-hour hold period and victim notification requirements as described above in (2).
iv. Also, prior to the offender's release on bond, the official will issue a no contact order containing all of the bond conditions under present law that are applicable to the protection of a domestic abuse victim, which may include an injunction and firearm and alcohol prohibitions on the defendant.
3. PUB. CH. 547: “New home contractors”:
i. This bill revises provisions regarding conduct for which new home contractors and home improvement services providers may be liable.
ii. This bill makes “the owner did not provide written consent for the new home contractor or home improvement services provider to deviate from or disregard plans or specifications in the contract, causing substantial damage to owner’s property” a required element of the offense, instead of an instance of deviation.
iii. This bill specifies that “substantial damage” to the owner’s property occurs when the value of the new construction is less than the value had it been built in accordance with the plan and contract.
4. PUB. CH. 619: “Victim of Female Genital Mutilation”:
i. This bill requires district attorneys general to annually report the number of reports of a person who appeared to be suffering from or to have been a victim of female genital mutilation to the senate judiciary committee and the criminal justice committee of the house of representatives.
ii. This bill requires all hospitals, facilities, and healthcare practitioners to report incidents of female genital mutilation to the department of health, within 30 days of the date of treatment.
iii. This bill specifies that all data obtained from the incident reports will be confidential and may not be released to the public. The department must also compile an annual report of the incidents reported pursuant to this bill, which will be published with no personal identifying information.
5. PUB. CH. 1040: “Scheduling Controlled Substances”:
i. This bill revises the provisions regarding mitragynine and hydroxymitragynine to specifically provide that it is an offense to knowingly produce, manufacture, distribute, sell, offer for sale, or possess any capsule, pill, or other product composed of or containing any amount of Kratom, in its natural botanical form, or any capsule, pill, or other product composed of or containing any amount of mitragynine or hydroxymitragynine.
ii. This bill also specifies that the following are excluded from all schedules:
1) Non-narcotic substances excluded under federal regulations;
2) Chemical preparations exempted under federal regulations;
3) Veterinary anabolic steroid implant products excluded under federal regulations;
4) Prescription products exempted under federal regulations;
5) Anabolic steroid products exempted under federal regulations; and
6) Certain cannabis plant material, and products made from such material, that contain tetrahydrocannabinols and that are exempted under federal regulations.
iii. This bill also updates the chemical description of the substance listed under Schedule II as an immediate precursor to fentanyl. Fentanyl still remains a Schedule II substance.
6. PUB. CH. 1046: “DUI Monitoring Fund”:
i. This amendment requires the assessment of fees against persons who are convicted of certain offenses to be deposited in the electronic monitoring indigency funds.
7. PUB. CH. 995: “Second Degree Murder Classification”:
i. This bill expands the killing of another that results from the unlawful distribution of any Schedule I or II drug, to include the killing of another by unlawful distribution or unlawful delivery or unlawful dispensation of fentanyl or carfentanil, when those substances alone, or in combination with any scheduled controlled substance, including controlled substance analogs, are the proximate cause of the death of the user.
8. PUB. CH. 719: “Sexual Offenses against a child”:
i. This bill classifies the offense of continuous sexual abuse of a child as a violent sexual offense for purposes of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004, meaning that an offender must continue to comply with the registration, verification and tracking requirements for the life of that offender
ii. An amendment to present law removes the requirement to sentence a defendant convicted of continuous sexual abuse of a child within ranges I-III of punishment, and instead provides that a defendant convicted of such an offense will be sentenced within the full range of punishment, regardless of the range for which the defendant would otherwise qualify.
9. PUB. CH. 898: “Sexual Offenders”:
i. Allows a sexual offender whose victim was a minor to obtain sexual offender treatment in a location that is within 1,000 feet of a school, child care facility, public park, playground, recreation center, or public athletic field.
10.PUB. CH. 855: “Drug and Alcohol Rehabilitation”:
i. This bill makes it a Class A misdemeanor for a service provider of alcohol and drug services (service provider), an operator of an alcohol and drug treatment facility (ADTF), or a third party who provides any form of advertising or marketing services to a service provider or an ADTF operator to engage in any of the following:
1) Making a false or misleading statement or providing false or misleading information about provided products, goods, services, or geographical locations in its marketing or advertising materials;
2) Including on its website false or misleading information or electronic links, coding, or activation that surreptitiously directs the reader to another website; or
3) Entering into a contract with a marketing provider who generates referrals or leads for the placement of patients with a service provider or in an ADTF, unless the service provider or the ADTF operator discloses information, as included in the bill, to the prospective patient so that the patient can make an informed healthcare decision.
ii. Under this bill, it will be a violation of the prohibition on patient brokering and a Class E Felony for a service provider, ADTF operator, or third-party marketer to solicit, receive, or attempt to solicit or receive any sort of commission or kickback, or engage in or attempt to engage in a split-fee arrangement, in return for a referral or an acceptance or acknowledgement of treatment from a service provider or ADTF.
iii. Under this bill, it will be Class A misdemeanor for any licensed healthcare provider or licensed healthcare facility, with respect to alcohol and drug services, to knowingly:
1) Offer to pay a commission, benefit, bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, in any form whatsoever, to induce the referral of a patient or patronage to or from a provider or facility; in return for referring a patient or patronage to or from a provider or facility; in return for the acceptance or acknowledgement of treatment from a provider or facility; or aid, abet, or otherwise participate in the conduct prohibited above.
a. If a licensed provider or facility, with respect to alcohol and drug services, violated the provision above and the prohibited conduct involves 10 or more patients, but fewer than 20 patients, it will be a Class E felony. If the conduct involves 20 or more, it will be a Class D felony.
11.PUB. CH. 1025: “Juvenile Offenders – Sienna’s Law”:
i. This bill enacts “Sienna’s law” which establishes requirements for the disposition of children adjudicated delinquent for certain offenses
ii. Under present law, when a child is found to be a delinquent, the court may make any of various orders of disposition best suited to the child’s treatment, and welfare.
iii. This bill requires that a juvenile who is adjudicated delinquent for conduct that, if committed by an adult, would constitute one of the following offenses by committed to the department of children’s services for a period of not less than one year, or until the child’s nineteenth birthday, whichever date occurs first:
a. First degree murder, second degree murder, voluntary manslaughter, criminally negligent homicide; and reckless homicide.
12.PUB. CH. 866: “Expectation of Privacy”:
i. This bill categorizes the illegal use of a telecommunication device by a minor as a delinquent act as follows:
1) Intentionally or knowingly, by use of a telecommunication device, creating, receiving, exchanging, sending, or possessing a photograph, video, or other material that shows a minor in a state of nudity is punishable as a Class A misdemeanor; and
2) Recklessly, by use of a telecommunication device, creating, receiving, exchanging, sending, or possessing a photograph, video, or other material that shows a minor in a state of nudity is punishable as a Class B misdemeanor.
ii. It is not a defense to illegal use of a telecommunication device by a minor that the minor creates, receives, exchanges, sends, or possesses a photograph, video, or other material that shows the minor in a state of nudity.
iii. This bill adds that an individual has a reasonable expectation of privacy, regardless of the location where a photograph is taken if:
1) The photograph is taken in a manner that would offend or embarrass a reasonable person; and
2) The photograph depicts areas of the individual's body, clothed or unclothed, that would not be visible to ordinary observation but for the offensive or embarrassing manner of photography.
13. PUB. CH. 993: “Organized Crime”:
i. This bill revises various provisions of the Organized Retail Crime Prevention Act. It adds an enhanced penalty for a defendant who exercised organizational, supervisory, financial, or management authority over the activity of one or more other persons in furtherance of the offense.
ii. Under this bill, a violation by such a defendant will be punished one classification grade higher than the underlying theft offense.
iii. Also, under this bill, any person or merchant who knowingly provides false information in response to the reporting requirements of this bill commits a Class A misdemeanor.
14.PUB. CH. 970: “Freedom from Unwarranted Surveillance Act”:
i. This amendment changes present law by creating a general requirement that, in order to use a drone to search for and collect evidence or obtain information or other data, law enforcement must first obtain a search warrant or there must be a judicially recognized exception to the warrant requirement at the time of use.
ii. This amendment expands on the present law creating a cause of action for persons who are aggrieved by misuse of a drone by law enforcement by specifying that any such person may seek all appropriate relief, including injunctive relief, destruction of the evidence, information or other data obtained, damages, and reasonable attorney fees.
iii. This amendment adds to present law by specifying that all use of drones by law enforcement must comply with applicable FAA rules, exemptions, or other authorizations.
15.PUB. CH. 961: “DUI Offenses”:
i. This bill revises the "implied consent" law regarding breath and blood tests to check the drug or alcohol content in a person.
ii. This bill adds that the operator's consent is not required to administer a blood test when exigent circumstances exist.
iii. This bill deletes the Class A misdemeanor offenses for intentional refusal, prevention, or obstruction of the administration of a breath test or blood test described in (1)-(4), including the enhanced penalty that requires a mandatory minimum five-day sentence for committing the offense while driving on a license that was revoked, suspended, or cancelled due to a prior conviction.
iv. However, this bill makes the present law requirement that a motor vehicle operator who refuses the breath test after being arrested and advised of the consequences for refusal be charged with violating the implied consent law and subject to suspension of the operator's driver license applicable to refusal to submit to a blood test under the same circumstances.
v. This bill clarifies that imposition of a requirement to only operate a motor vehicle that is equipped with an ignition interlock for refusal to submit to a breath or blood test will only apply when the operator is a repeat offender.
16.PUB. CH. 1019: “Promotion of Prostitution”:
i. This bill adds that promoting prostitution will be punishable as trafficking for a commercial sex act (Class A or B felony) when the victim has an intellectual disability.
17.PUB. CH. 925: “Punishment for the Assaultive Offenses”:
i. This bill revises the punishment for the assaultive offenses under certain circumstances; revises provisions governing the reporting of conduct by an inmate against a correctional officer, guard, jailer, or other full-time employee of a penal institution, local jail, or workhouse, that would constitute an assault.
ii. This bill deletes the provisions that make aggravated assault against an employee of a transportation system a Class A misdemeanor so that such assaults will be classified in the same manner as if committed against any other victim.
18.PUB. CH. 557: “Education”:
i. This bill prohibits alterations to a student's transcript unless the LEA, charter school, or virtual school has written policy governing transcript alterations; prohibits an LEA from retaliating against an employee who brings unauthorized transcript alterations to the attention of school officials; provides penalty for violation.
19.PUB. CH. 861: “Medical Licenses”:
i. This bill requires persons subject to licensure as emergency personnel to notify the emergency medical services board of convictions and pending charges of commission of a felony or misdemeanor within 10 business days of the occurrence of such actions.
20.PUB. CH. 914: “Stolen Valor Act”:
i. Under this bill, a person commits criminal impersonation who, with the intent to obtain money, property, services, or any other tangible benefit, pretends to be an active duty member or veteran of uniformed service by:
1) Wearing the uniform, rank, medals, devices, or insignia of a uniformed service of which the person is not a member or veteran or to which the person has not earned or been awarded; or
2) Presenting false identification, documentation, or certification; or
3) If a person fraudulently represents to another, or misleads another to believe, that the person is the recipient of a military rank, medal, device, insignia, award, decoration, ribbon, tab, or other service recognition that the person has not received or earned.
ii. The offense created by this bill is a Class A misdemeanor and all proceeds from the fines imposed for a conviction must be paid into the state general fund and an amount equal to the fine revenue be allocated to assist in veteran property tax relief, subject to the general appropriations act, subject to the approval of the commissioner of finance and administration and the state veterans' homes board with the approval of the governor.
21.PUB. CH. 748: “Counterfeit Airbags”:
i. Under present law, any person who knowingly installs or reinstalls any object in lieu of an airbag that was designed in accordance with federal safety regulations for the make, model and year of the vehicle as part of the vehicle inflatable restraint system is guilty of a Class A misdemeanor.
ii. This bill rewrites the above provisions and establishes the following Class E felonies:
1) A person knowingly manufacturing, importing, installing, reinstalling, distributing, selling, or offering for sale any device intended to replace a supplemental restraint system component (SRS) in any motor vehicle, if the device is a counterfeit SRS, nonfunctional airbag, or device that does not meet federal motor vehicle safety standards; and
2) A person knowingly selling, installing, or reinstalling in a vehicle, any device that causes the vehicle's diagnostic systems to fail to warn when the vehicle is equipped with a counterfeit SRS or nonfunctional airbag, or when no airbag is installed.
22.PUB. CH. 598: “Victim Notification Requirements”:
i. This bill updates victim notification requirements and procedures to reflect establishment of electronic victim notification system instead of by written action.
C. PUBLIC RECORDS:
1. PUB. CH. 613: “Confidentiality of Records”:
i. This bill adds records of human trafficking service providers to present law exceptions to the open record law for certain records of domestic violence shelters and rape crisis centers.
2. PUB. CH. 799: “Mental Illness”:
i. This bill requires that the instant check unit of the TBI to contact chief law enforcement officer of a jurisdiction where a person who has been adjudicated as a mental defective or judicially committed to a mental institution attempts to purchase a firearm.
ii. Present law requires certain healthcare facilities and professional to report to local law enforcement certain identifying information concerning patients who are involuntarily committed; who communicate a credible, actual threat of serious bodily harm or death against a reasonably identifiable victim(s).
a. This amendment specifics that all such reports must include the patient’s or defendant’s (1) race and sex; and (2) social security number if available.
1. PUB. CH. 708: “Exclusion from trials”:
i. Under this bill, an out-of-court statement made by a child who is under 12 years of age at the time of a criminal trial describing any sexual act performed by, with, or on the child or describing any act of physical violence directed against the child will not be excluded from evidence at the criminal trial as hearsay if all the following apply:
1) The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted under certain rules of the Tennessee Rules of Evidence. This bill lays out in detail the circumstances a court must consider in making a determination of the reliability;
2) The child's testimony is not reasonably obtainable by the proponent of the statement. This bill details the circumstances in which a child's testimony is not reasonably obtainable;
3) Independent proof exists of the sexual act or act of physical violence; and
4) At least ten 10 days before the trial or hearing, a proponent of the statement has notified all other parties in writing of the content of the statement, the time and place at which the statement was made, the identity of the witness who is to testify about the statement, and the circumstances surrounding the statement that are claimed to indicate trustworthiness of the statement.
ii. This bill requires the court to make the findings required by this bill on the basis of a hearing conducted outsider the presence of the jury, and to make findings of fact on the record as to the bases of the ruling.
The Supreme Court of Tennessee reversed and remanded for a new sentencing hearing a fatal driving under the influence case from Claiborne County involving the defendant’s overuse of prescription pain medication.
The trial court sentenced the defendant to eight years in prison, but the Court of Criminal Appeals reversed. The Court of Criminal Appeals affirmatively directed the trial court to place the defendant on eight years probation with no jail time.
The Supreme Court disagreed with both lower courts’ treatment of the case at sentencing, concluding that not enough evidence or findings were presented to support either conclusion.
In 2012, defendant Kevin E. Trent was driving a three-quarter-ton pick-up when he struck the vehicle operated by Karen Freeman, who died of her injuries. The defendant pled guilty to vehicular homicide resulting from intoxication, a Class B felony. Under the plea agreement, the defendant was to be sentenced as a standard offender to eight years, with the manner of service of the sentence being determined by a trial court after a hearing.
At the hearing, evidence was presented about the victim’s life as well as the defendant’s history, which included a serious motorcycle accident that resulted in the loss of limbs. The defendant, however, had no criminal history. Testimony was presented on the defendant’s use of Oxycodone, and it was shown that his blood level was above the therapeutic level when tested after the accident.
The trial court determined the entire sentence of eight years should be served in prison. The defendant appealed, and the Court of Criminal Appeals found the trial court based its decision on the mere elements of the crime and not on any egregious or aggravating circumstances. Therefore, it directed the trial court to sentence the defendant to eight years full probation. The state appealed to the Supreme Court.
In reaching its decision, the Supreme Court agreed that a trial court cannot deny probation solely on the basis of the offense itself when the legislature has determined the crime is probation-eligible. The trial court made few, if any, findings on how the accident occurred or the extent of the overdose, and it misapplied the enhancement factor.
However, the Supreme Court also found the record was not sufficient to agree with the Court of Criminal Appeals’ decision on full probation because some evidence, especially related to the defendant’s probability to reoffend, was included in the trial court’s initial decision. Moreover, the burden of proving suitability for full probation is on the defendant.
The case was sent back to the trial court for a new sentencing hearing.
Tennessee Supreme Court Rejects Due Process Analysis, Adopts Double Jeopardy Approach for Multiple Offenses Arising From the Same Sexual Assault
The Supreme Court has ruled that multiple convictions for sexual offenses arising from a single act of sexual assault should be analyzed under double jeopardy principles. In reaching this conclusion, the Court overruled its prior decision in State v. Barney, 986 S.W.2d 545 (Tenn. 1999), which held that such cases should be reviewed under a due process approach.
This case arose from multiple instances of sexual molestation of a twelve-year-old girl by her step-father, the defendant, from January 1, 2010, through July 31, 2012. The State provided an election of offenses, given that the victim testified to more instances than were charged.
The defendant was convicted of attempt to commit aggravated sexual battery, four counts of aggravated sexual battery, and three counts of rape of a child. He received an effective forty-year sentence. On appeal, the Court of Criminal Appeals, relying on Barney, merged the conviction of attempt to commit aggravated sexual battery with one of the convictions for rape of a child based on due process principles.
The Supreme Court granted the State’s application for permission to appeal to determine whether the Court’s decision in Barney should be overruled and whether the Court of Criminal Appeals properly merged two of the defendant’s convictions.
In the unanimous opinion authored by Chief Justice Jeff Bivins, the Court overruled Barney because that case examined the propriety of multiple convictions from a single episode of criminal assault under a due process analysis.
As the Court explained, State v. White, 362 S.W.3d 559, 578 (Tenn. 2012), rejected a separate due process analysis on appeal for considering whether dual convictions arising in other settings from an allegedly singular episode were proper. Although the Court held that White had not actually overruled Barney, it is now appropriate to do so. The Court concluded that multiple convictions in a sexual assault case should be reviewed based upon principles of double jeopardy.
In so doing, the Court set forth a list of non-exclusive factors to be considered in determining whether multiple convictions arise from a singular act. After applying the factors in this case, the Court determined that the defendant’s convictions of attempt to commit aggravated sexual battery and one count of rape of a child arose out of the same assault and, thus, violated double jeopardy principles. Therefore, although for different reasons, the Court affirmed the Court of Criminal Appeals’ decision to merge the two convictions into one conviction of rape of a child.
SUPREME COURT RECOGNIZES LIMITED GOOD- FAITH EXCEPTION TO THE EXCLUSIONARY RULE
The Tennessee Supreme Court has recognized a good-faith exception to the exclusionary rule, which means that evidence obtained in violation of a suspect’s constitutional right to be free from unreasonable searches and seizures need not be excluded from a criminal trial if the law enforcement officers’ actions rely in good faith on binding appellate precedent that is subsequently overruled.
The case arose from an October 29, 2011 single-vehicle accident in Knox County. The defendant, Corrin Reynolds, was allegedly driving the vehicle at the time of the accident. Two passengers died in the crash, and Reynolds and another passenger sustained injuries and were taken to UT Medical Center for treatment. Law enforcement officers investigating the crash obtained a sample of Reynolds’s blood without a warrant, believing that a warrant was not necessary because Reynolds had consented to the blood draw and because the accident involved fatalities.
Six months later, Reynolds was charged with two counts of vehicular homicide, one count of vehicular assault, one count of reckless endangerment, and four counts of driving under the influence of an intoxicant.
Before her trial, Reynolds asked the trial court to exclude any evidence obtained from her blood, claiming the officer had violated her state and federal constitutional right to be free from unreasonable searches and seizures when he obtained her blood without a warrant. Reynolds also argued that, because of the trauma of the accident, the medications she received, and her hearing impairment, she had been incapable of consenting to the blood draw. The trial court agreed, finding that Reynolds’s blood had been obtained without her consent and in violation of her constitutional rights, and granted her request to exclude the evidence from trial.
The State sought and received permission to appeal the trial court’s ruling, and the Court of Criminal Appeals reversed. Although the intermediate appellate court agreed that Reynolds had not actually consented to the blood draw, it held, based on a law passed by the Tennessee legislature, that Reynolds had impliedly consented to the warrantless blood draw when she drove a vehicle on Tennessee roadways.
As a result, the intermediate appellate court concluded that Reynolds’s constitutional rights had not been violated and evidence from her blood should not be excluded from trial. Recognizing that Reynolds could seek review of its decision in the Supreme Court, the Court of Criminal Appeals alternatively opined that, even if Reynolds’s constitutional rights were violated, the Tennessee Supreme Court should adopt and apply the good-faith exception to the exclusionary rule, which had already been adopted by the United States Supreme Court. Were the good-faith exception adopted and applied, the intermediate appellate court explained that evidence obtained from Reynolds’s blood need not be suppressed because her blood had been obtained in good-faith reliance on the implied consent law and a decision of the United States Supreme Court indicating that warrants were not required to obtain blood from DUI suspects.
The Tennessee Supreme Court granted Reynolds’s permission to appeal and asked the parties to address whether it should adopt a good-faith exception. In a 4-to-1 decision released today, the Supreme Court adopted a narrow good-faith exception to the exclusionary rule, which applies to prevent exclusion of evidence obtained in violation of a suspect’s constitutional rights only when the law enforcement officers act “in objectively reasonable good-faith reliance on ‘binding appellate precedent’ that ‘specifically authorizes a particular police practice’” and which is later overruled.
The Supreme Court held that evidence derived from Reynolds’s blood need not be suppressed because, when the officer obtained her blood without a warrant, a United States Supreme Court decision had been interpreted by Tennessee courts as authorizing the police to obtain blood without a warrant from DUI suspects. This binding appellate precedent was overruled after the officer obtained Reynolds’s blood. Accordingly, the Supreme Court concluded that the good-faith exception applied and remanded this case for further proceedings, including Reynolds’s trial.
Justice Sharon G. Lee dissented and described the Court’s decision to adopt the good-faith exception to the exclusionary rule for a constitutional violation as “ill-conceived.” In her view, the Court’s adoption of a good-faith exception to excuse a constitutional violation erodes citizens’ rights to be free from unreasonable searches and seizures as guaranteed by the United States and Tennessee Constitutions. Justice Lee expressed concern that this exception for a constitutional violation undermines judicial integrity by creating a grace period during which the police may violate constitutional requirements with impunity.
Justice Lee pointed to the disparate treatment given to a defendant in a United States Supreme Court case and a defendant in a case in Texas where the blood test results were not admitted into evidence and a good-faith exception was not applied. In Justice Lee’s view, the good-faith exception adopted by the Court was not applicable to Ms. Reynolds because the Tennessee Supreme Court had never ruled on the issue and statements in Tennessee appellate decisions indicating that warrants were not required to obtain blood samples from DUI suspects were not uniform and not “binding appellate precedent” for purposes of applying the good- faith exception.
Read the majority opinion in State of Tennessee v. Corrin Reynolds, authored by Justice Cornelia A. Clark, and Justice Lee’s dissenting opinion, go to the opinions section of TNCourts.gov.
New Laws taking effect July 1, 2016
Makes the largest investment in K-12 education without a tax increase in Tennessee’s history. It builds up state reserves, puts Tennessee on the path to catch up on long-deferred maintenance of buildings, reinvests in the state workforce and focuses one-time dollars on reducing the state’s ongoing costs. It includes no new debt and all capital projects are funded with cash. The budget reduces the Hall Income Tax from six percent to five percent, with anticipation of at least a one percent reduction each year until total elimination by January 1, 2022. It also provides for property tax relief by increasing the value level for low-income elderly Tennesseans and removes the income qualifier for 100 percent disabled veterans. (Majority Leader Mark Norris) Public Chapter 758
DUI / Carjacking - Strengthens penalties for multiple DUI offenders and carjackers - elevates a DUI offense for those convicted 6 or more times from a class E felony to a class C felony - requires prior convictions for alcohol-related vehicle offenses, including those committed out-of-state, to be counted as prior convictions - requires any person convicted of carjacking to serve 75% of the sentence imposed - reduces the simple possession or casual exchange of marijuana to a misdemeanor rather than a felony (Chairman Randy McNally) Public Chapter 758
DUI / Conviction History - Requires immediate sharing of an impaired driver’s DUI arrest and conviction history with law enforcement, the courts and the National Crime Information Centers requires immediate sharing of an impaired driver’s DUI arrest and conviction history with law enforcement, the courts and the National Crime Information Centers to ensure multiple offenders - makes the information accessible by law enforcement officers in their squad cars to check the criminal background of arrestees (NCIC) (Majority Leader Mark Norris) Public Chapter 1075
DUI / Fingerprints - Calls for timely transmission of fingerprints taken for vehicular impairment offenses (Majority Leader Mark Norris) Public Chapter 718
DUI / Ignition Interlock Devices - Requires a judge to order an ignition interlock device for all convicted DUI offenders unless the judge provides a finding of fact to not order the device - offenders must have the ignition interlock devices in their car and operating for 365 consecutive days or the offender must start over until the time is served consecutively - if there has been any tampering with the device in the last 120 days of the sentence, the period for which the interlock system is required will be extended by another 120 days (Senator John Stevens) Public Chapter 888
DUI / Interlock Assistance - Authorizes the use of the state’s Interlock Assistance Fund for transdermal monitoring devices or other alternative alcohol or drug monitoring devices when a court determines that an offender is unable to pay for it (Senator Doug Overbey) Public Chapter 993
DUI / Transdermal Monitoring - Gives judges discretion to order monitoring for 1st time DUI offenders - any device a judge believes necessary to ensure that the offender complies with probation conditions and a clinical assessment to cover drugs (Senator Doug Overbey) Public Chapter 653
DUI Memorial Signing Program - Creates a Driving Under the Influence (DUI) memorial signing program to erect and maintain memorial signs on the non-interstate highways commemorating residents who died as a result of DUI related incident (Senator Kerry Roberts) Public Chapter 1039
DUI / Disclosure - Requires law enforcement agencies to have a procedure describing when personnel may disclose to the public the use of drugs or alcohol by a driver as a contributing factor in a motor vehicle accident (Senator Kerry Roberts) Public Chapter 756
Abortion / Consent - Clarifies consent is required for medical experiments or research of aborted fetus (Senator Joey Hensley) Public Chapter 986
Human Sex Trafficking-
Human Sex Trafficking / Penalties - Increases penalties for traffickers who promote another for prostitution to a class E felony and requires the offender to register as a sex offender - clarifies the offense of promoting prostitution so victims are not unduly punished – helps to ensure DCS can provide services to minor victims (Senator Doug Overbey) Public Chapter 979
Child Abuse / Child Sexual Abuse / Sex Offenders-
Rape of a Child - Adds aggravated rape of a child and rape of a child as offenses for which aggravated sexual battery is a lesser included offense (Senator Paul Bailey) Public Chapter 671
Statute of Limitations / Aggravated Statutory Rape - Extends the statute of limitations for aggravated statutory rape to 15 years after the victim turns 18 years of age (Senator Todd Gardenhire) Public Chapter 958
Statutory Rape - Increases penalty for statutory rape by an authority figure from a class C felony to a class B felony if the victim is 13 to 18 years of age and if there is more than a 4 year difference (Majority Leader Mark Norris) Public Chapter 1086
Sexual Contact by an Authority Figure - Expands the requirements for the offense of sexual contact by an authority figure – closes a loophole and expands the offense to cover all minors under the age of 18 (Senator Janice Bowling) Public Chapter 1038
Severe Child Abuse / Statute of Limitations - Extends the statute of limitations to 10 years after the child reaches 18 years of age for aggravated child abuse, child neglect and endangerment to allow the child to face their abuser as an adult (Senator Mark Green) Public Chapter 1032
Child Abuse - Gives equal protection to all Tennessee children from abuse, neglect and endangerment by repealing religious exemption defense (Senator Richard Briggs) Public Chapter 951
Domestic Assault / Child Abuse / Statute of Limitations - Adds child abuse, neglect and endangerment, as well as domestic assault, to the list of offenses in Tennessee for which pretrial diversion is not permitted (Chairman Ken Yager) Public Chapter 586
Sex Offenders / Unlawful Photographing - Allows a judge to add those who unlawfully photograph a person for sexual gratification to the Tennessee Bureau of Investigation’s (TBI) Sex Offender Registry for up to 10 years (Senator Jim Tracy) Public Chapter 941
Drugs / Opioid Abuse-
Butane Hash Oil (BHO) / Shatter - Defines the dangerous and more potent form of marijuana and creates a Class E felony for knowingly manufacturing it (Senator Doug Overbey) Public Chapter 1014
Marijuana Oils and Concentrates - Clarifies that marijuana concentrates and oils are defined as marijuana and are under the state’s Tennessee Drug Control Act to keep Tennessee’s statute up-to-date with the recent increase in different and dangerous forms of the drug (Senator Mae Beavers) Public Chapter 873
Juvenile Crime / Reporting - Gives the Department of Children’s Services direction in collecting information required under a 2007 law so that adequate data on juvenile probation, recidivism, system penetration information and evidenced-based services information can shed more light on how to keep young offenders from moving into a cycle of crime (Majority Leader Mark Norris) Public Chapter 1005
Autopsies - Provides that a district attorney can request an autopsy (Senator Doug Overbey) Public Chapter 799
Evading Arrest / Penalties - Sets tougher penalties for evading arrest - makes it a class E felony unless the evasion creates a risk of death or injury to innocent bystanders, law enforcement officers or 3rd parties in which case it would be class D felony (Chairman Jim Tracy) Public Chapter 633
Vandalism / State of Emergency - Broadens the sentencing enhancement for committing theft during a declared state of emergency to include class C felony vandalism offenses (Senator Frank Niceley) Public Chapter 934
Courts / Court Process-
Pre-Trial Diversion - Allows judges to impose a condition on pretrial diversion of jail time not to exceed 30 days as “shock incarceration” (Chairman Jack Johnson) Public Chapter 1026
Child Support / Custody - Allows for a case involving child support or custody provisions to be transferred between counties if the requesting party has served the non-requesting party with the filing seeking transfer and non-requesting party has not filed an objection within 15 days (Senator Doug Overbey) Public Chapter 668
Uniformed Fiduciary Access to Digital Assets - Sets the framework for how provisions can be made by persons, while living, for alternative access to digital assets such as Facebook, Linked-In and email accounts (Majority Leader Mark Norris) Public Chapter 570
Parental Termination / Public Records - Provides cases involving the termination of parental rights the same level of confidentiality as cases filed in juvenile court (Senator Doug Overbey) Public Chapter 659
Public Pensions / Divorce - Authorizes all public pension and retirement plans to allocate a portion of the member’s benefits to the his or her former spouse (Senator Doug Overbey) Public Chapter 931
Waiver of Preliminary Hearing - Grants the state the right to make timely objections to a defendant’s waiver of a preliminary hearing to the satisfaction of a judge (Chairman Ken Yager) Public Chapter 329
Testing Transparency - Allows teachers, parents and students the ability to obtain 70 % or more of the question from standardized test in grades 8 and 10 – 11th graders can retake ACT or SAT free of charge (Senator Ferrell Haile) Public Chapter 844
Student Privacy - Vendors of education software and internet services must protect K-12 student’s privacy while handling data (Senator Steve Dickerson) Public Chapter 757
STEM Schools - Simplifies the transfer of students, and the BEP funding that follows them, to regional Science Technology Engineering Mathematics (STEM) Schools (Senator Becky Massey) Public Chapter 882
Dyslexia - Calls for universal dyslexia screening for students and a Dyslexia Advisory Council (Chairman Dolores Gresham) Public Chapter 1058
Student Safety -
School Buses - Strengthens penalties against school bus drivers who use a cellphone or other electronic device while transporting students (Senator Becky Massey) Public Chapter 1036
Defibrillators - Ensures school personnel have training in how to use automatic external defibrillators (Senator Doug Overbey) Public Chapter 677
Suicide Prevention - Addresses suicide among young people by requiring LEA employees to attend training that already takes place for teachers and principals (Senator Kerry Roberts) Public Chapter 623
Bullying - Requires school policy include referral for counseling, expanding current reporting requirements and encourages LEAs to review their policy prohibiting harassment, intimidation, bullying or cyberbullying (Chairman Bill Ketron) Public Chapter 783
FOCUS Act - Creates the Focus on College and University Success (FOCUS) Act to provide a sharpened focus on the governance of Tennessee’s 13 community colleges and 27 colleges of applied technology (TCATs), while granting four-year state universities additional autonomy (Majority Leader Mark Norris) Public Chapter 869
From 2015 Legislative Session -- Community College / Reconnect Grants / Launches a pilot program to help adults complete their degree in Tennessee’s community colleges and provides last-dollar scholarship assistance to adults who want to return to community college and complete their associate’s degree in applied science colleges, 27 colleges of applied technology or other eligible institutions offering an associate degree program (Majority Leader Mark Norris) Public Chapter 363
From 2015 Legislative Session - University of Memphis / Adds the University of Memphis to the provisions of state law that applies to Austin Peay State University to give in-state tuition to residents who live in neighboring counties outside the state which are adjacent to Shelby County (Majority Leader Mark Norris) Public Chapter 447
Professional Privilege Tax - Requires the Department of Revenue to properly notify those owing a professional privilege tax (Senator John Stevens) Public Chapter 1010
Jobs / Commerce-
Rural Economic Opportunity Act - Spurs economic development in some of the state’s most economically distressed counties by restructuring the county tier system used for determining job tax credits – Budget provides $10 million for the Rural Economic Opportunity Propelling Rural Economic Progress (PREP) program fund which is a grant to aid rural counties in building sites and infrastructure to incentivize business to develop in their region (Majority Leader Mark Norris) Public Chapter 1019
Autonomous Vehicles - Defines autonomous vehicles and technology to help recruit research, testing and manufacture of the vehicles in Tennessee (Senator Mark Green) Public Chapter 927
Business / Workers-
Asbestos Bankruptcy Claims Transparency Act - Protects those who have been injured by making sure that people who are actually sick go to the front of the line to recover damages for their injuries – also sets up a way for injured claimants to get their lawsuits through the court system efficiently, but makes sure that there is no double dipping on claims paid from the Trust Fund (Senator John Stevens) Public Chapter 635
Worker’s Compensation - Improves worker’s compensation reforms adopted in 2013 - changes the injury notification requirement for workplace injuries from 30 days to 15 days to encourage workers to more timely notify their employer if they have been injured on the job - provides additional protections for workers by authorizing a worker’s compensation judge to award medical and/or disability benefits that have been wrongly denied during an expedited compensation hearing - encourages more employers to participate in the Tennessee Drug Free Workplace Act - allows the Division of Worker’s Compensation to hire attorneys as ombudsman to help navigate the system (Majority Leader Mark Norris) Public Chapter 1056
Unemployment Claims - Requires the Department of Labor and Workforce Development to audit all claims to ensure that those receiving benefits are applying to a minimum of three places of employment per week or visiting a qualifying career center (Senator Mark Green) Public Chapter 1063
Cybersecurity - Tightens up state law regarding breach notification requirements to protect consumers (Chairman Bill Ketron) Public Chapter 692
Identity Theft - Prohibits registers of deeds from disclosing personal information to help guard against identity theft (Chairman Jack Johnson) Public Chapter 914
Fantasy Sports - Creates a regulatory framework for the brand new market to protect consumers (Chairman Jack Johnson) Public Chapter 978
Slow Pokes - Restricts slow drivers from continuously driving in the far left lane on 3- lane highways and impeding the normal flow of traffic (Senator Frank Niceley) Public Chapter 982
Texting While Driving - Provides that texting while driving offense triggers a moving violation – mandates a driver education course on the 1st offense (Senator Ed Jackson) Public Chapter 1077
Aeronautics - Creates the Aeronautic Economic Development Fund - once funded, grants will be made to benefit aeronautical programs and infrastructure across the state, principally at airports (Speaker Pro Tempore Bo Watson) Public Chapter 1027
E-Bikes - Defines e-bikes and clarifies that they are subject to the same rules and legal requirements that apply to riders of traditional bicycles (Senator Richard Briggs) Public Chapter 823
Bike lanes - Creates penalties for operating a vehicle in a designated bicycle lane with the exception of parking, loading or unloading passengers or turning - 1st offense is a warning, 2nd offense is a $20 fine and 3rd and subsequent offense is a $50 fine (Senator Becky Massey) Public Chapter 944
Health / Hospitals / Access to Care /Medicine/ Professionals-
Hospitals - Continues the Hospital Coverage Assessment to prevent more than $1.275 billion in potentially catastrophic TennCare cuts that would negatively affect hospitals, physicians, patients and enrollees – cannot pass along to patients (Senator Doug Overbey) Public Chapter 854
Certificate of Need - Modernizes Tennessee’s Certificate of Need (CON) program - removes several services from requiring CON - adds flexibility to the way that hospitals and physicians groups operate (Senator Todd Gardenhire) Public Chapter 1043
Affordable Healthcare - Provides Tennesseans with an affordable free-market option to contract directly with their physician for primary healthcare services by ensuring that it is not considered an HMO or insurance company for purposes of regulation in Tennessee (Senator Kerry Roberts) Public Chapter 996
Epinephrine / Restaurants - Allows health care prescribers to prescribe epinephrine auto-injectors to a wide variety of entities, including restaurants (Senator Mark Green) Public Chapter 805
Epinephrine / Law Enforcement Officers - Allows law enforcement officers to administer epinephrine in emergency situations (Senator Paul Bailey) Public Chapter 801
CMV / Pregnant Women - Encourages healthcare professionals who care for pregnant women to provide information regarding CMV (Chairman Bill Ketron) Public Chapter 625
Medical Occupations / Licensing - Provides healthcare professionals who let their license expire, the ability for reinstatement (Chairman Randy McNally) Public Chapter 763
Veterans / Military-
Food Stamps / Soldiers - Prohibits the Department of Health, to the extent permitted under federal law, from including the basic allowance for subsistence (BAS) for applicants who are members of a uniformed service when calculating income for the purpose of determining eligibility for the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) (Senator Mark Green) Public Chapter 950
Handgun Permits / Veterans - Makes it easier for veterans to obtain a handgun carry permit - will not be required to comply with the mandatory classroom and firing range hours if the applicant is an active, honorably discharged or retired veteran of the U.S. Armed Forces after presenting documentation (Senator Doug Overbey) Public Chapter 925
Veterans / Proof of Immunization - Requires public institutions of higher education to accept proof of a student’s prior or current military service as evidence of any immunization requirements for enrollment (Chairman Dolores Gresham) Public Chapter 841
Governments & Accountablity-
Administrative Officer / Highway Dept. - Sets guidelines in the event a person challenges a candidate’s qualifications for the office of county highway superintendent (or the elected chief administrative officer of the highway department) (Chairman Mike Bell) Public Chapter 604
Government Accountability / State Audits - Makes it a class A misdemeanor criminal offense for a supervisor or employee of state government intentionally to interfere with, impede, obstruct or limit access to information that is requested during an audit conducted by the Comptroller of the Treasury (Chairman Jim Tracy) Public Chapter 939
State Contracts - Requires vendors seeking a state contract to notify the chief procurement officer if they have been convicted of, indicted or pleaded guilty to violations of the Sherman Antitrust Act, mail fraud or other violations of state or federal law that is related to any contract (Chairman Ken Yager) Public Chapter 730
Welfare Fraud / Penalties - Increases the penalty for TennCare fraud from a class E felony to a class D felony (Majority Leader Mark Norris) Public Chapter 744
Welfare Fraud / DHS / Makes substantial changes to the way the Tennessee Department of Human Services (DHS) contracts and monitors 3rd party agencies that receive taxpayer money to feed children and adults (Speaker Pro Tempore Bo Watson) Public Chapter 798
From 2015 Legislative Session - Welfare Benefits / Abuse / Restricts the use of electronic benefit transfer (EBT) cards by Temporary Assistance for Needy Families (TANF) recipients at licensed retail stores that derive their largest category of sales from tobacco and smoking accessories (Senator Mae Beavers) Public Chapter 392
From 2014 Legislative Session - Consumers / Wine in Grocery Stores / Triggers a licensed grocery store the ability to sell wine (Chair Bill Ketron) Public Chapter 554
Second Amendment Rights-
Handguns / Posting - Creates immunity from liability for a premise that does not post signage prohibiting weapons from claims based on not posting (Chairman Dolores Gresham) Public Chapter 947
Second Amendment Rights / Post-Secondary Institutions - Requires public post-secondary institutions to conform with the 2013 law allowing for the storage of handguns by permit holders in their vehicles as long as it is locked and out of site (Senator Mike Bell) Public Chapter 1061
Elderly / Healthcare Structures - Authorizes zoning consideration of temporary family healthcare structures for mentally or physically impaired citizens on the property of their caregiver (Senator Mike Bell) Public Chapter 992
E-Verify - Puts more teeth in Tennessee’s E-Verify statute by targeting bad actors who find it more advantageous to pay a one-time fine rather than follow the law (Chairman Jim Tracy) Public Chapter 828
UAV's or Drones / Surveyors - Expands lawful use of photography captured by unmanned aircrafts or drones to land surveyors and topographical mapmakers – allows the state to adopt this technology to make departmental duties less expensive and more efficient (Senator John Stevens) Public Chapter 900
Horse Racing Advisory Committee - Recreates the State Horse Racing Advisory Committee to develop recommendations for legislation related to the establishment of horse racing in Tennessee (Senator Frank Niceley) Public Chapter 1040
Used Oil Collection Act - Broadens the scope of the 1993 Used Oil Collection Act to address the proper disposal of used antifreeze, transmission fluid and power steering fluid (referred to as "other automotive fluids") (Majority Leader Mark Norris) Public Chapter 771
Iran Divestment Act - Identifies persons investing in the energy sector of Iran and prohibit the state from contracting with them – follows 2010 federal law which authorized state and local governments to prevent investment in companies operating within Iran’s Energy Sector that may directly or indirectly support Iran’s nuclear capabilities (Chairman Bill Ketron) Public Chapter 817
Supreme Court Rules Certain Police Caretaking Acts Permitted Without Warrant
The Tennessee Supreme Court has upheld a White County man’s DUI conviction, ruling that the officer who approached a man’s parked vehicle for a welfare check acted consistently with federal and state constitutional principles and within his community caretaking function.
Kenneth McCormick was arrested in 2012 after a White County Sheriff’s Department officer on routine patrol at 2:45 a.m. observed McCormick’s vehicle parked, with its engine and headlights on, mostly blocking an entrance to a shopping center. The back left wheel and rear portion of the vehicle were partially in the roadway. The officer parked his patrol car in the roadway behind the vehicle and activated its back blue lights for safety to help prevent the vehicles from being rear-ended.
When the officer approached McCormick’s vehicle for a welfare check, he observed McCormick slumped over the wheel. When the officer tapped on the window, McCormick did not respond. The officer then opened the door, “detected a strong odor of alcoholic beverage on [McCormick’s] breath and person,” and noticed an open beer bottle in the center console. The officer was able to wake McCormick after a minute of trying and asked him to exit the vehicle. McCormick complied but was swaying, stumbling, having difficulty standing still, and very unsteady on his feet. After McCormick admitted to having three to four beers and failed three field sobriety tests, the officer arrested him for DUI.
Before trial, McCormick moved to suppress any evidence obtained during the welfare check, arguing that the officer should not have seized him without either a warrant or a basis for believing a warrantless seizure was appropriate. The trial court denied McCormick’s motion. A jury found McCormick guilty, and McCormick appealed, challenging the trial court’s denial of his motion to suppress. The Court of Criminal Appeals upheld the trial court’s ruling, explaining that the officer acted properly within his community caretaking role in approaching the vehicle and checking on McCormick’s welfare.
The Supreme Court granted permission to appeal to reconsider a prior decision,State v. Moats, which held the community caretaking doctrine is not an exception to the warrant requirement of the federal or state constitutions. The Supreme Court heard oral arguments in the appeal on February 10, 2016, at the Nashville School of Law.
In the opinion released on 5/10, the Supreme Court overruled Moats and held that the community caretaking doctrine is an exception to the federal and state constitutional warrant requirement. To establish that the exception applies, the Supreme Court explained, the State must show that the officer must have known specific facts which, when viewed objectively in the circumstance, supported a conclusion that a community caretaking action was needed. The state must also show that the officer’s behavior and the scope of the intrusion were limited to the extent necessary to the community caretaking need.
In this case, the Supreme Court determined that the community caretaking exception applied to the welfare check of McCormick’s vehicle and therefore affirmed the judgments of the trial court and Court of Criminal Appeals in denying McCormick’s motion to suppress.
Bill Altering DUI, Drug Penalties Heads to Governor's Desk -
The bill that would lower the legal penalties for repeated drug possession and increase penalties for repeat DUI offenders is now headed to Gov. Bill Haslam’s desk.
The Tennessean reports the state Senate yesterday approved the measure (HB 1478) with a 32-0 vote after the House signed off on it last week.
States Extending Statutes of Limitations in Sexual Assault Cases
A growing number of states are changing their statutes of limitations to allow sexual assault cases to be prosecuted years after the incident. The changes are aimed at benefitting victims who may need time to recover from trauma. "Every single state has an interest in making sure that individuals who are predatory are taken off the street and if that means someone speaking out later, that's something we should be supporting," said Laura Dunn, attorney and founder of advocacy group SurvJustice.
Supreme Court Rules Police Stops for Crossing Roadway Markings do not Violate Motorists’ Constitutional Rights -
In two cases involving motorists crossing roadway markings – one a double yellow centerline and another the right lane “fog line” – the Tennessee Supreme Court has upheld the constitutionality of the officers’ seizures of the vehicles’ drivers, both of whom also were charged with DUI.
In one case out of Williamson County, Linzey Smith was traveling north on I-65 at 3 a.m. when an officer observed her twice touch and once cross the right fog line with both right tires of her vehicle. The officer followed her for some distance, and then initiated a stop of Ms. Smith’s vehicle.
Under the facts of a Knox County case, William Davis, Jr., was observed by an officer at 2:30 a.m. crossing the double-yellow line along Keller Bend Road, a curvy two-lane road. The officer stopped Mr. Davis, who smelled strongly of alcohol and had slurred speech.
Both defendants were charged with DUI and sought to have evidence in those cases suppressed, claiming the officers’ basis for pulling them over – crossing over roadway markings – was a violation of their constitutional rights prohibiting unlawful seizure.
The Court’s ruling addresses two Tennessee statutes. The first, cited in the Smith case, makes it a violation to stray outside a lane unless it is not practicable to do so, such as avoiding a hazard in the road, or being blown out of the lane by a high wind. The Court determined that, in this case, Ms. Smith’s driving out of her lane gave the officer reasonable suspicion to support an investigatory stop. Reasonable suspicion requires considering all the relevant circumstances to determine if the officer had specific facts that would support a constitutionally sufficient basis for the seizure. In this case, the Court considered such factors as the time of day, the quality of the road, and driving conditions, and determined that the threshold was met and the stop was proper.
The second statute at issue in the Davis case simply makes it an offense to cross the centerline on a highway. This second case entails probable cause, a legal standard that is related to but different from reasonable suspicion. Probable cause exists when the officer has a reasonable basis for believing that a crime has been committed. If, as in this case, an officer observes a driver actually commit a traffic infraction, the officer has probable cause to initiate a traffic stop.
In Mr. Davis’s case, the Court concluded that the General Assembly intended to establish an offense for the common driving infraction of crossing the centerline.
The Court reasoned that, by this action, the General Assembly made a policy decision that all motorists who briefly cross a centerline on a highway are subject to a traffic stop for a violation of the law. Therefore, the officer in Mr. Davis’s case had proper probable cause to make the traffic stop, and any evidence gathered was constitutionally sound.
Computers in Self-Driving Cars 'Count as Humans'?
The National Highway Traffic Safety Administration earlier this month determined that the artificial intelligence system piloting a self-driving Google car could be considered the driver under federal law. Reuters reports the decision comes after Google in November submitted a proposed design for a self-driving car that has "no need for a human driver." "We agree with Google its (self-driving car) will not have a 'driver' in the traditional sense that vehicles have had drivers during the last more than one hundred years,” NHTSA's letter said.
Supreme Court Strikes ‘Physical Injury’ Test for Enhanced Sentencing The U.S. -
The U.S. Supreme Court has ruled that the definition of “violent felony” in the Armed Career Criminals Act is unconstitutionally vague, the ABA Journal reports.
The law increases sentencing for a gun-related conviction if the defendant has at least three prior violent felony convictions. “Violent felony convictions” are defined to include “conduct that presents a serious potential risk of physical injury to another.” The court found that this vague definition denies due process, but left intact other definitions in the act.
Obama Drug Pardons Disappoint Advocates -
While the Obama administration has consistently supported measures aimed at reforming mandatory minimum prison sentencing for nonviolent drug offenders, President Barack Obama's recent decision to commute the prison sentences of only eight federal inmates has left advocates wanting more.
Eight offenders were granted commutations in 2013 as well. Many advocates expected the number to be much greater this year given the Justice Department's April announcement of a new prison reform initiative aimed at making it easier for the administration to pardon or reduce sentences of non-violent offenders.
Facebook will allow users to name 'legacy contact' in case of death -
For nearly a decade, Facebook has responded to notification that an account holder is deceased by verifying the death and freezing the account so no changes could be made.
However, on Thursday the social media giant said it will now allow account holders to name a “legacy contact” who will be permitted to manage the Facebook page after the user’s demise. The Facebook executor will be permitted to make one final post and perform other functions such as updating the user’s profile, responding to new friend requests, and archiving photos and posts. However, private messages will not be accessible to the legacy contact, according to the Palm Beach Post, the Wall Street Journal (sub. req.) and USA Today.
“We heard from family members who wanted to post funeral information or download and preserve photos,” said Facebook product manager Vanessa Callison-Burch. “We realized there was more we could do.”
If an account holder doesn’t name an executor, Facebook will simply freeze the account just as it has been doing in the past.
Some new ways the State of Tennessee (through the Nashville Assistant District Attorneys) is trying to introduce “out of court statements” of alleged victims of domestic violence.
Excited Utterance Exception to the Hearsay Rule-
Tennessee Rule of Criminal Procedure 803 (2) allows the admission of statements relating to a startling event made while the declarant was under the stress of excitement caused by that event.
The statement was not testimonial-
The Tennessee Supreme Court has, in the case of State of Tennessee v. Darrell Franklin, laid out a list of nonexclusive factors on whether a statement is testimonial.
Forfeiture by Wrongdoing -
This is an exception to the hearsay rule and the rule of confrontation in which a person has engaged in wrongdoing to procure the unavailability of the declarant as a witness.
An example of this would be telling a witness not to answer the phone when the ADA is calling or to not come to court when subpoenaed.
So be careful what you say or text – you do not want to create a record of this sort of behavior before your day in Court.
Supreme Court to Rule on Controversial License Plates
The U.S. Supreme Court agreed to decide whether Texas' denial of a specialty license plate featuring the Confederate flag was an infringement on free speech, WRSP reports from USA Today.
In doing so, the court held in abeyance another case in which North Carolina approved a "Choose Life" license plate but denied one defending a woman's right to choose.
Veterans Court Awarded $1.5 Million Federal Grant
Through a $1.5 million federal grant, the Tennessee Department of Mental Health and Substance Abuse Services is providing increased funding to veterans' courts in Shelby, Montgomery and Davidson counties, the Leaf Chronicle reports.
The result is an expansion of services, over a three-year period, giving hundreds more service members in Tennessee the option of pursuing treatment and recovery programs rather than incarceration.
AG Announces $3.8M Settlement with Sirius XM
Tennessee will receive $233,000 as part of a $3.8 million multistate settlement with Sirius XM Radio, Attorney General Herbert Slatery announced. Sirius has agreed to provide restitution to eligible consumers to resolve claims that the satellite radio company engaged in misleading advertising and billing practices.
Consumers who have not previously filed a complaint with their attorney general or state complaint handling entity such as DCA for the practices covered by this settlement have until May 3 to file a complaint to be considered for restitution.
Court Opens Term with Case on Police Actions -
The U.S. Supreme Court opened its new term Monday with a case questioning whether a police officer’s misunderstanding of the law can justify a traffic stop that led to the seizure of illegal drugs.
A divided North Carolina Supreme Court said the mistake was reasonable enough to justify the routine traffic stop and refused to toss out the drug evidence.
Other actions today included decisions to leave in place the conviction of a Massachusetts man who argued his online activities were free speech, not support for al-Qaida; reject an appeal to South Carolina’s redrawn state house and congressional maps; and not hear an appeal from a lawyer/activist who claimed a federal judge ruled against him because of personal bias.
The court did grant review in a number of cases, including a challenge to Abercrombie & Fitch’s decision to not hire a Muslim teen because her hijab was deemed inconsistent with the company’s dress code; a question of federal litigation fee awards; a case involving ERISA plan fiduciaries; and whether discrimination claims brought under the Fair Housing Act can be based on proof of disparate impact rather than intentional discrimination.
Memphis Police Find More Rape Kits
Memphis police have found 196 more untested rape kits in previously unsearched areas where evidence is stored, according to the Memphis Daily News.
The kits date back to 1976 and bring the total number of backlogged kits to 12,360. The department said the recent finds were not listed on any evidence inventory and were found while officers searched for evidence to aid in the processing of existing kits.
Acknowledging the task ahead, Memphis Police Director Toney Armstrong said, “It is going to be a long process. It’s probably going to be a multi-year process.”
14 new laws that took effect July 1
July 1 marks the first day many new Tennessee laws go into effect, from new restrictions on cold medication to legislation allowing hemp farming for the first time in decades. Here are 14 new laws you may not have been aware of:
1. KNIFE POSSESSION
A new law overrides local restrictions on knives, making it legal throughout the state to possess, own, sell, transfer and transport switchblades and knives with blades over 4 inches long. It also increases the penalties for using a switchblade to commit a crime.
A measure passed in March revises the state's requirement to provide coverage for sinkholes as part of homeowner policies, adding standards for verifying damage. Proponents say the changes will prevent fraud.
3. CELL PHONE TRACKING
A law passed in April requires law enforcement to get a warrant before searching a cell phone. Supporters say the measure was bolstered by last week's ruling by the U.S. Supreme Court that such searches are illegal.
4. METH PRODUCTION
Gov. Bill Haslam pressed for new limits on sales of pseudoephedrine, a cold medication needed to make methamphetamine. Tennesseans now can buy no more than 24 daylong tablets a month or 120 daylong tablets a year.
State officials are allowed now to execute death row inmates using the electric chair if lethal injection is found to be unconstitutional or the drugs cannot be obtained. Tennessee previously gave inmates the option of electrocution if they committed capital crimes before Jan. 1, 1999.
6. CHRISTMAS IN SCHOOLS
A new measure clarifies that school districts can teach the history of Christmas and "traditional winter celebrations," as well as put up displays and let students and staff exchange traditional greetings. The American Civil Liberties Union said these activities were already allowed.
7. SEX ABUSE EDUCATION
Legislation known as "Erin's Law" requires the Department of Education and the Department of Children's Services to begin developing a school curriculum on sexual abuse.
8. HOT CARS
A bystander who breaks a window to remove a child from a locked car would be immune from civil liability, under a law passed in April. The measure comes amid rising concern about children being left in car seats on hot days.
9. STANDARDIZED TESTING
The big legislative fight over Common Core education standards ended with a one-year delay to new testing. Lawmakers also placed restrictions on how student data can be used.
10. SPECIALTY PLATES
Organizations that rely on sales of specialty plates for revenue can now ask supporters to give them to friends and relatives. Tennesseans previously could buy plates only for themselves.
11. TRANSDERMAL MONITORING
"Amelia's Law" clarifies that judges can order offenders or parolees to wear transdermal or other monitoring devices after release. The bill is named after Amelia Keown, a Maryville teenager killed in a 2012 accident.
12. INDUSTRIAL HEMP
For the first time in decades, state law allows farmers in Tennessee to grow hemp, a cousin of marijuana whose fibers can be put to industrial use.
Grocery stores won't be able to sell wine until the summer of 2016 at the earliest, but one liquor restriction is lifted July 1. Liquor stores will be allowed to sell items other than alcohol, including corkscrews, mixers, snacks, beer and cigarettes.
14. YELLOW LIGHTS
A new state law clarifies that drivers can run yellow lights as long as their front tires cross the stop line before it turns red. As if Tennesseans weren't doing this already.
4 Things You Need to Know If the Police Try To Search Your Phone:
In a rare unanimous Supreme Court decision yesterday, all nine Justices agreed that, yep, searching your phone without a warrant is indeed illegal.
So, if a police officer ever does try to dig through your digital dirt unlawfully, this is what you need to do:
The often controversial Chief Justice John Roberts summed the whole thing up with a few delightfully biting lines in the court's decision -
The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what the police must do before searching a cell phone seized incident to an arrest is accordingly simple - get a warrant.
In other words, the law is on your side, and thedailydot.com has put together a simple little primer on how to handle any unlawfully snooping cops. It all boils down to the following:
1. Keep your phone locked.
If they ask you to unlock it, you have every right to refuse. And this way, should you be stuck in handcuffs, they won't be able to pore through your phone even if they wanted to.
2. Calmly repeat the following: "I do not consent to this search."
Repeating the phrase means there's no room for any ambiguity. And staying calm means (hopefully) no angry officers.
3. If you're not under arrest, really don't consent.
While a warrantless search of your phone when you're under arrest is illegal, doing so when you're not under arrest is extra illegal.
4. If the officer still ignores you, whatever you do, don't get physical in any way.
If you're at the point where a cop has snatched your phone from you, you're probably in the middle of being arrested. And in those situations, physically intervening is just about the worst thing you can do.
Remember the cop's name for later, because even if they find anything questionable, the cop can't use it if it was obtained illegally.
Of course, there are still some situations where a cop can lawfully search your phone without obtaining a warrant first.
This includes, for example, the abduction of a child, when police suspect a person is in imminent harm, or "some imminent threat of evidence destruction."
Drug Court Graduates Praise Judge Moreland:
A controversial domestic violence case has left county officials and editorial writers calling for the resignation of Davidson County General Sessions Judge Casey Moreland. But those who have gone through the misdemeanor drug court run by Moreland say he saved their lives. "If it wasn't for the drug court program, I would not be here today," said Shane Demonbruen, a recovering drug addict.
Others echoed that sentiment. Interviewed by WSMV TV, the group did not make excuses for Moreland, but asked that people wait before rushing to judgment – something they say Moreland did for each of them.
Nashville Probation Fees set to Increase:
Nashville, Davidson County Proabation fees will go up to $33 per month, from $30. This means while on probation one will pay about $36 more per year on a DUI conviction - half on an RD. The fees are designed to offset the cost of probation. The Tennessee Legislature has made supervised probation mandatory on all DUI convictions, thus ensuring the cycle of money and payments will continue . . .
Fair Sentencing Act alteration of crack cocaine mandatory minimums does not apply to sentences imposed before its effective date -
United States v. Blewett, --- F.3d ----, 2013 WL 6231727 (6th Cir. December 3, 2013):
The Sixth Circuit, in an en banc opinion written by Judge Sutton, held that the revised mandatory minimums for crack cocaine brought about by the Fair Sentencing Act (FSA) do not apply to defendant sentenced prior to its passage. There were a total of seven different opinions, but the basic split was 10-7. Judge Sutton’s opinion for the court held that retro- active application would be contrary to the general savings statute, 1 U.S.C. §109, despite the Supreme Court’s decision in Dorsey v. United States, 132 S.Ct. 2321 (2012), which held that the FSA applied to defendants sentenced after its effective date.
It also rejected the argument that retroactivity was justified by §3582(c), which the court explained covers only guideline ranges subsequently lowered by the Sentencing Commission, not mandatory minimums altered by Congress.
The court rejected an equal protection argument, holding that there was no evidence of a racially discriminatory purpose:The Blewetts and Judge Clay add that Congress must have foreseen that its failure to make the Fair Sentencing Act fully retroactive would have a racially disproportionate impact. But ... that makes no difference. A disproportionate effect does not violate the Equal Protection Clause, even if it was forseen.
The Court also rejected an Eighth Amendment argument that the sentences were cruel and unusual. It stated: The Blewetts persist that their sentences became cruel and unusual when Congress passed the Fair Sentencing Act. But the Eighth Amendment is not a ratchet that makes a harsher system of penalties unconstitutional the moment a more lenient one is (prospectively) adopted, a theory that would have the perverse effect of discouraging lawmakers from ever lowering criminal sentences.
The court concluded: Although the various opinions in this case draw different conclusions about the law, they all agree that Congress should think seriously about making the new minimums retroactive. Indeed, the Fair Sentencing Act, prospective though it is, dignifies much of what the Blewetts are saying as a matter of legislative reform and may well be a powerful ground for seeking relief from Congress. Yet the language of the relevant statutes ... and the language of the relevant decisions ... leave us no room to grant that relief here.
Judges Merritt, Cole, Clay, Donald, Rogers, and White dissented in six separate dissents.
The Tennessee Supreme Court reinstates DUI charges in case where subject passed field sobriety tests...
State v. David Dwayne Bell, Sevier County, Submitted: 2/20/14
The Tennessee Supreme Court today reinstated DUI charges against David Dwayne Bell.
Mr. Bell was stopped in 2009 by police for driving on the wrong side of a divided highway and performed several field sobriety tests with reasonable success.
Despite his performance on the tests, police arrested Mr. Bell for DUI because he smelled of alcohol, and he admitted that he had drunk “more than he should have.” The Circuit Court for Sevier County suppressed blood alcohol test results and dismissed all charges, finding that police lacked probable cause to arrest Mr. Bell.
In light of Mr. Bell’s satisfactory performance on the field sobriety tests, the Court of Criminal Appeals agreed. In a unanimous opinion, the Supreme Court ruled that police had probable cause to arrest Mr. Bell for DUI.
The Court observed that the existence of probable cause is quite distinct from guilt at trial. While a criminal conviction must be supported by proof beyond a reasonable doubt, probable cause requires only facts that would support a prudent person’s belief that the defendant committed an offense. Mr. Bell’s significant driving error, odor of alcohol, and admission of drinking warranted a belief that he was driving under the influence and, therefore, established probable cause for his arrest.
The Court, recognizing that an individual may pass field sobriety tests and still be under the influence of alcohol, concluded that Mr. Bell’s satisfactory performance on field sobriety tests did not sufficiently undermine the belief that he was driving under the influence.
Tennessee Bill would reduce jail time for repeat DUI offenders -
People convicted of second and third DUI offenses could shave off part of their jail time in exchange for completing treatment for alcohol abuse, including outpatient programs, under legislation before the Tennessee General Assembly.
Gov. Bill Haslam’s administration is seeking the law change. The goal is to reduce repeat offenses and use state money designated for addiction treatment more effectively. The bill stipulates that an alcohol abuse expert be primary in deciding who qualifies.
Currently, judges can direct second offenders to serve up to 28 days of residential treatment as part of sentencing-reduction guidelines. But intensive outpatient programs that actually require longer-term commitments of DUI offenders are not an option.
Offenders would not avoid incarceration under the legislation. Second offenders would still have to serve at least 15 days in jail, and third offenders at least 60 days, before participating in a substance abuse treatment program to reduce remaining time.
“We believe that, no matter what, people have to be responsible for their behavior,” said Doug Varney, commissioner of the Tennessee Department of Mental Health and Substance Abuse Services. “They can go into treatment if there is any time left. It’s just a trade-off. For residential, it is day-for-day. For an intensive outpatient program, you have to go at least three evenings to get one day.”
State officials reached out to Mothers Against Drunk Driving and law enforcement organizations and made changes to the proposed legislation before asking lawmakers to consider it. The Recidivism Reduction Act is Senate Bill 1633 and House Bill 1429.
MADD will not oppose the bill, said Frank Harris, the group’s state legislative affairs manager.
“It is part of the toolbox that should be explored,” Harris said. “We just have some reservations as it relates to reducing incarceration periods based on the position statement we have. But we are not going to stand in the way.”
Story - Reach Tom Wilemon at 615-726-5961 and on Twitter @TomWilemon.
Bill Aims For Tennessee To Legalize Medical Marijuana - From NC5
January 8, 2014
NASHVILLE, Tenn - For the first time, a new poll has suggested nationally the majority of Americans favor legalizing marijuana.
That poll comes on the heels of a bill filed by a member of the state legislature to begin allowing medical marijuana use here in Tennessee.
There has been a dramatic shift in marijuana opinions in this country over the past 30 years.
A new CNN poll said 55 percent of the country now favors legalizing marijuana.
The poll's data said the largest groups opposed are older Americans, Republicans, and people living in the South.
In the middle of those demographics, Rep. Sherry Jones, (D) Nashville, has once again introduced a bill which would make Tennessee the 21st state to allow medical marijuana. Jones has lost count how many times she's introduced the bill, but this time around it is getting more attention.
"I believe that everybody is more interested this year than they may have in the past because there are other states looking at it," she said.
Medical marijuana has some unlikely supporters. Joan Peay said she lead PTA meetings about watching out for marijuana use in kids. Now she's a survivor of the fungal meningitis outbreak and a supporter of medical marijuana.
"It saved my life," she said. "It definitely did."
Peay relapsed and had to fight off the fungal meningitis infection a second time last year.
Tuesday she said was one of her first truly "good" days in many months. She's regaining her energy and also an appetite.
"The meningitis medication is very harsh on your body, including your stomach," Peay said.
She said the appetite is thanks mostly to some pills known as Dronabinol. Without them her nausea was unbearable. She said she was unable to keep down her other medicine, let alone food.
Dronabinol is a synthetic form of a chemical found in marijuana. She doesn't get any high from it. It just helps her to have some sort of appetite. For her this was a changing moment in the debate over medical marijuana.
"Previously I was on the fence about medical marijuana," she said. "But this really changed my mind. It saved my life."
The synthetic version Joan takes is very expensive. She said $300 for a month's supply.
Rep. Jones believes legalizing medical marijuana would bring costs down to help people like Joan as well as cancer patients, soldiers with PTSD and plenty more.
"I don't know that Tennessee is ready for total legalization," Jones said. "But I'm hoping that Tennessee is ready to help people who have serious medical issues that marijuana will help."
Jones said her brother died from Crohn's Disease a few years ago. She said medical marijuana would have eased his suffering considerably. According to Jones, the bill would have very strict guidelines because although the opinions on marijuana are changing, Tennessee still has very conservative views compared to the rest of the nation.
"First you're very conservative," Jones said. "You see how it goes. You get your numbers. You see what the statistics are and then you go from there."
The state stands to make big money if passed. Jones said the plants would be taxed around 20 percent.
Some of the requirements, she said, is medical marijuana could only be grown on organic farms and only prescribed by licensed doctors for legitimate needs.
When asked for opinions on the NewsChannel 5 Facebook page hundreds of comments poured in within a couple of hours.
Fierce debate came with those comments. Those opposed to the idea of medical marijuana are concerned about abuse of the system and people getting addicted to it. The vast majority were in favor.
In the end, it comes down to the favor of the legislature. Historically it has been a resounding "no" vote.
'Wanted' Banker Who Faked His Suicide Captured After Cops Stop Him For Tinted Windows -
January 2, 2014
A Georgia banker wanted by the FBI for a $21 million investor fraud was finally captured when cops stopped him for illegally tinted car windows, The New York Daily News reports.
Aubrey Lee Price (REUTERS/FBI and Glynn County Sheriff's Office)
Aubrey Lee Price, 47, went on the run in 2012 after writing friends a purported suicide noteadmitting to "horrendous financial mistakes" and saying "it would be better for me to exit this world."
Of course, Price — who was last seen boarding a ferry in Key West, Fla. — did not leave the world. He was ultimately caught in Brunswick, Ga. after cops pulled him over and realized who he was after just a little questioning, the Daily News reported.
The Glynn County Sheriff's Office in Georgia booked him on New Year's Eve and noted he was being held for federal authorities.
A federal warrant was put out for Price's arrest in New York in June 2012 after he was charged with wire fraud. Price was also hit with a civil action by the SEC that year claiming he perpetrated a massive fraud through two investor funds while he was the director of the Montgomery Bank & Trust in Ailey, Ga.
The two funds suffered massive losses and there were also "frequent large wires transferred out of the account," according to the SEC complaint. Price allegedly made up account statements with bogus returns on them to cover these big losses and illicit transfers.
Price was also accused of embezzling millions from the troubled bank that he directed, the Atlanta Journal-Constitution reported in June 2012. After his disappearance, the AJC spoke with clients who didn't think Price's suicide was authentic.
"I don't believe he's dead. I believe he planned for this exit," Wendy Cross, who lost her $364,000 nest egg by investing with Price, told the AJC.
In his "suicide note" posted by the AJC, Price indicated that he'd been hounded by investors and said he wished he had come clean earlier.
"The phone calls from certain angry bank investors was difficult to bear and I continued to try to and hold out hope to them. This was very painful," Price said. "I should have just acknowledged all the painful losses and just dealt with it."
Nashville New Year's Eve Street Closures -
December 31, 2013
MUSIC CITY’S NEW YEAR’S EVE BASH ON BROADWAY - Tens of thousands of persons are expected downtown for the New Year’s Eve Bash. A number of streets downtown will be closed beginning at 7 a.m. Tuesday. They include:
Broadway from 4th to 5th Avenues
2nd Avenue from Demonbreun to Church Streets
Commerce Street from 2nd to 3rd Avenues
3rd Avenue from Demonbreun to Commerce Streets
1st Avenue from Church to Union Street
Bank Street from 1st to 2nd Avenues
Church Street from 1st to 2nd Avenues
Gay Street Connector from Church Street to 1st Avenue
At 6 p.m. Tuesday, these streets will be closed:
4th Avenue from Demonbreun to Commerce Streets
5th Avenue from Demonbreun to Commerce Streets
6th Avenue from Demonbreun Street to Broadway
7th Avenue from Demonbreun to Commerce Streets
Broadway from 5th to 8th Avenues
Police officers will work to disperse motorists as quickly and efficiently as possible in the early morning hours of Wednesday based on parking areas:
Persons parking south of Broadway will travel south on 4th Avenue or West on Demonbreun Street.
Persons parking at LP Field will travel east on Woodland Street, east on Shelby Street or onto Interstate Drive.
Persons parking north of Broadway will travel west on Broadway, Charlotte Avenue or Church Street.
Persons parking in the area of PSC Metals in lower East Nashville will travel south of Davidson Street, S. 5th Street or further into East Nashville.
Those attending the New Year’s Eve Bash are urged to be aware of their surroundings and report anything suspicious to one of the numerous police officers downtown. Extra-duty officers will be present in the downtown area from 6:30 a.m. Tuesday through sunrise New Year’s Day.
State Police Acknowledge Use Of Cell Phone Tracking Device
December 19, 2013
State Police Captain Dave Bursten responded to the report Wednesday, saying the agency is operating within the bounds of the law.
The Indiana State Police are responding to lawmakers’ and civil rights organizations’ concerns that it is overstepping its boundaries by using a device that can track cell phone calls, text messages and movements within a set radius.
Indiana State Police Captain Dave Bursten said in a statement the department is working well within the bounds of the law. He says protection of investigation methods is key to the success of building a case.
Bursten won’t say exactly how the technology is used, because he says it would be “like a football team giving up their playbook.”
A joint USA Today and IndyStar investigation found earlier this month that the state police spent $373,995 on a device called a Stingray.
Often installed in a surveillance vehicle, the suitcase-size Stingrays trick all cellphones in a set distance — sometimes exceeding a mile, depending on the terrain and antennas — into connecting to it as if it were a real cellphone tower. That allows police agencies to capture location data and numbers dialed for calls and text messages from thousands of people at a time.
State police officials initially refused to provide any records related to the purchase of the Stingray.
After the IndyStar appealed the denial to the Indiana Public Access Counselor, the Indiana State Police provided a one-page document confirming the purchase of the device but no information about how it is used.
USA Today and the IndyStar also sought records about what are known as “tower dumps,” in which police seek court orders requiring cell phone companies to provide investigators with massive amounts of phone data.
Network Indiana contributed to this report.
Sen. Beavers to sponsor legislation to help ensure citizens’ privacy when using electronic devices -
December 16, 2013
NASHVILLE, Tenn. – Senator Mae Beavers (R-Mt. Juliet) announced today she will introduce legislation to prohibit state and local police agencies from accessing or retrieving the location data of residents by surveillance of an electronic device without a court warrant. Beavers said the bill will help ensure government does not take advantage of technological advances in cell phones, laptops and other electronic devices to spy without appropriate judicial oversight.
“Government and law enforcement agencies should not be able to tap into your cell phone location or gain access to electronically stored data without a warrant approved by a judge,” said Senator Beavers. “We cannot let technological advances sidestep the Fourth Amendment. This protection is a very important part of the checks and balances put into place by our forefathers to keep government from overstepping its boundaries.”
Law enforcement made 1.1 million requests to wireless carriers for cellphone data information in 2012 according to a report delivered to Congress earlier this month. The three largest wireless companies, AT&T, Sprint and Verizon reported they have received 56,400 “emergency” requests from police departments which did not have a warrant or court order. One company reported their requests from police have doubled in the past five years.
In addition, public records obtained by USA Today and Gannett reveal that about one in four law enforcement agencies in the U.S. have used “tower dumps.” This is a surveillance tactic which covers multiple towers and wireless providers to give police a multitude of electronic data about a targeted cell phone user. The digital dragnets also capture information on other persons using wireless devices in the area who are not suspected of wrongdoing.
Beavers said her electronic privacy bill will be modeled after one passed in Montana which allows exceptions only in order to respond to a possible life-threatening situation, an emergency call by the user or when a device is reported as stolen, unless there is informed consent by the owner.
“Citizens must be protected from unreasonable government surveillance,” added Beavers. “This legislation is a big step forward in securing our Constitutional freedoms.”
Senator Beavers represents Cannon, Clay, DeKalb, Macon, Smith and Wilson Counties in District 17 in the Tennessee Senate.
Appeals Judge Jerry Smith to Retire -
December 7, 2013
NASHVILLE, Tenn. (AP) - A Criminal Appeals judge who pleaded guilty to a DUI charge in Knoxville last year has decided to retire.
Judge Jerry Smith's decision to step down comes as he faced a possible negative recommendation from the commission that evaluates judicial performance.
A negative evaluation means a judge must face a contested election if he or she decides to run for re-election.
A positive evaluation means a judge faces only a retention referendum where voters decide whether to keep the judge on the bench with a yes-no vote.
A preliminary vote by the Judicial Performance Evaluation Commission was for replacement. The commission has not yet taken its final vote.
No appeals judge has faced a contested election since before 1994, and only one has lost a retention election since then.
(Copyright 2013 The Associated Press. All rights reserved.)
DUI 3rd Offense DISMISSED in Nashville Court -
December 2, 2013
Today I was able to get a 3rd Offense DUI Dismissed in Nashville Court for a client. State of Tennessee v. T.C.
Remember - there are always more options than just taking whatever lousy deal the DA hands you!
Congrats to my client who trusted me with his case - Have a GREAT Christmas and New Year!!!!
NEW TENNESSEE LAW AFFECTING MOTOR VEHICLES
November 7, 2013
Tenn. Code Ann. § 55-4-110 (2013)
55-4-110. Display of registration plates -- Manner -- Penalty for violation.
(a) The registration plate issued for passenger motor vehicles shall be attached on the rear of the vehicle. The registration plate issued for those trucks with a manufacturer's ton rating not exceeding three-quarter (3/4) ton and having a panel or pickup body style, and also those issued for all motor homes, regardless of ton rating or body style thereof, shall be attached to the rear of the vehicle. The registration plate issued for all other trucks and truck tractors shall be attached to the front of the vehicle. All dealers' plates, as provided in § 55-4-221, and those registration plates issued for motorcycles, trailers or semitrailers shall be attached to the rear of the vehicle.
(b) Every registration plate shall at all times be securely fastened in a horizontal position to the vehicle for which it is issued so to prevent the plate from swinging and at a height of not less than twelve inches (12'') from the ground, measuring from the bottom of the plate, in a place and position to be clearly visible and shall be maintained free from foreign materials and in a condition to be clearly legible; provided, if a motorcycle is equipped with vertically mounted license plate brackets, its license plate shall be mounted vertically with the top of such license plate fastened along the right vertical edge. No tinted materials may be placed over a license plate even if the information upon the license plate is not concealed.
(c) (1) Except as provided in subdivision (c)(2), for all motor vehicles that are factory-equipped to illuminate the registration plate, the registration plate shall be illuminated at all times that headlights are illuminated.
(2) Subdivision (c)(1) shall not apply to any antique motor vehicle as defined in § 55-4-111(b).
(d) (1) A violation of this section is a Class C misdemeanor. All proceeds from the fines imposed by this subsection (d) shall be deposited in the state general fund.
(2) A person charged with a violation of this section may, in lieu of appearance in court, submit a fine of ten dollars ($10.00) for a first violation, and twenty dollars ($20.00) on second and subsequent violations to the clerk of the court that has jurisdiction of the offense within the county in which the offense charged is alleged to have been committed.
(3) If the violation of this section results solely from the failure to illuminate the registration plate at all times headlights are required to be displayed, the fine set out in this subsection (d) shall be the only amount the person is assessed. No litigation tax levied pursuant to title 67, chapter 4, part 6 shall be imposed or assessed against anyone convicted of a violation of this section nor shall any clerk's fee or court costs, including, but not limited to, any statutory fees of officers, be imposed or assessed against anyone convicted of a violation of this section. Further, the lighting violation described in this subdivision (d)(3) shall be considered a nonmoving traffic violation and no points shall be added to a driver's record for such violation.
TN toxicology tests under scrutiny as TBI investigates lab worker
October 22, 2013
For people accused of driving under the influence, their fates could rest on the results of a toxicology test. But a man who performs those tests for the state is now off the job and under investigation.
Lawyers are wondering if thousands of people's cases may have been jeopardized.
In March, Dale Ferrell crashed into 58-year-old motorcyclist Ed Bankston in Chattanooga. Bankston died, and Ferrell was charged with vehicular homicide when investigators claimed he was drunk behind the wheel.
But we've learned that wasn't the case at all.
"It really does call into question some of the results," said DUI criminal defense attorney Lee Martin.
The Tennessee Bureau of Investigation tested Ferrell's blood and determined his blood alcohol content level was 0.24. The legal limit is 0.08.
But Ferrell's attorney had that same blood independently tested, and the results came back 0.001.
According to the district attorney, the TBI was wrong and the independent test was right.
"You have someone who is absolutely, completely dead sober. That is a huge difference," Martin said.
The TBI suspended toxicologist Kyle Bayer and is now investigating to see if there is a "quality problem" with his work.
Meanwhile, the case against Ferrell has been dismissed.
"Anyone that's been arrested, or if they've even been convicted within the past year, they need to get with their lawyer and see about seeking a sample and possibly seeking an independent analysis of the blood alcohol results," said attorney Jerry H. Summers.
Blood tests can be the strongest pieces of evidence prosecutors have against an accused drunken driver.
"Jurors, by and large, think that the tests are infallible," Martin said.
The TBI believes this was an isolated case, but attorneys across the state worry if it wasn't.
"It's got the potential for very, very serious effect upon the lives of many individuals," Summers said.
"In my mind, it would call into question the entire lab," Martin said.
The TBI said Bayer has been working in its lab for about a year. Officials say they've never had any problems with him before now.
They say they are still investigating, but tell us if they do indeed find a quality problem with his work, that's when they would consider having the samples Bayer handled re-tested by an independent organization.
Copyright 2013 WSMV (Meredith Corporation). All rights reserved.
The Tennessee Supreme Court upholds trial court's dismissal of case when the DUI arrest video is lost...
State v. Angela Merriman, Warren County, Submitted: 8/16/13
"The Tennessee Supreme Court, in a unanimous opinion, upheld a trial court’s dismissal of DUI and other charges against a McMinnville woman because a video recording of the woman’s stop and arrest was lost.
In November 2010, a McMinnville police officer pulled over Angela M. Merriman because she veered into his lane of traffic from a center turn lane. After attempting to conduct several field sobriety tests, the officer placed Ms. Merriman under arrest. She told the officer she had taken a Valium and hydrocodone earlier that day. A camera in the police officer’s vehicle captured video of the traffic stop, the attempted field sobriety tests, and the arrest.
The officer referred to the video during his testimony at Ms. Merriman’s preliminary hearing. When defense lawyers sought access to the recording, however, they were told that the video was missing. Subsequently, Ms. Merriman filed a motion to dismiss the indictment on the grounds that the State failed to preserve evidence that potentially could exonerate her.
The trial court granted the dismissal at a pre-trial hearing, applying a 1999 Tennessee case that sets forth the procedure for determining whether a trial conducted without the lost evidence would be fundamentally fair to the defendant. In this case, the trial court first determined that the State had an obligation to preserve the video of Ms. Merriman’s stop and arrest, applied the three remaining factors from the 1999 case, and concluded that it would not be fair to continue to trial without the video.
The Court of Criminal Appeals agreed, concluding that the trial court did not abuse its discretion in dismissing the charges.
In its Opinion released today, the Supreme Court upheld the dismissal, concluding that the State had a duty to preserve the video recording and failed in that duty when the video recording was lost. Because of the obligation to preserve evidence that could possibly clear Ms. Merriman of wrongdoing or assist in her defense, the Court then looked at the other three factors outlined in the 1999 case. It determined that the loss of the video recording resulted from simple negligence; the lost evidence had significance when considered in light of all the other evidence, and its loss prevented viewing the event as it had occurred; and the sufficiency of the other evidence was inconclusive. The Court determined that the loss of the evidence deprived Ms. Merriman of her right to a fair trial."
From the MNPD
Kurt Bartlett Nashville DUI Criminal Defense Lawyer
Mayor Karl Dean and Chief Steve Anderson today led the ceremonial groundbreaking of the Midtown Hills Police Precinct on 12th Avenue South, the city’s eighth and newest precinct that continues Nashville’s investment in public safety.
By creating the Midtown Hills Precinct, the city will bring police services even closer to the residents in that section of Davidson County and in other Nashville neighborhoods as coverage areas of the West, South and Hermitage precincts will decrease.
“Our police department has done a great job in reducing crime by placing an emphasis on building relationships with neighbors and businesses so that everyone plays an active role in keeping our city safe,” Mayor Dean said. “When the Midtown Hills Precinct opens, patrol officers will have less area to cover and that gives them more time to spend getting to know and building trust with the people they protect.”
Located at the corner of 12th Avenue South and Wade Avenue, near Wedgewood Avenue, the Midtown Hills Precinct will cover an estimated 46 square miles and include the communities of Edgehill, Green Hills, Forest Hills, Oak Hill, Crieve Hall and Nippers Corner, as well as Vanderbilt, Belmont and Lipscomb universities.
The precinct is projected to open in mid-2014. It will include a large community room to serve as a gathering place for neighborhood meetings and other events. It will be about 23,000-square-feet in size and built to LEED Silver certification standards.
The new full-service precinct will house patrol and flex officers, an investigative unit and a team of undercover detectives to handle neighborhood drug complaints.
“Like Nashville’s seven other precincts, Midtown Hills will essentially serve as a mini police department with its own commander to serve the neighborhoods around it,” Chief Anderson said. “It is through those partnerships with neighborhoods that we are together making a real difference in directly addressing crime and enhancing quality of life for Nashville’s families.”
The project is expected to cost $9.7 million, including funds Mayor Dean included in the Fiscal Year 2011 Capital Spending Plan for land acquisition and construction and in the FY 2014 Capital Spending Plan. Both plans were unanimously approved by the Metro Council. The design/build teams include Thomas, Miller & Partners and Messer Construction.
This is the second new precinct to open during Mayor Dean’s tenure. The first was the Madison Precinct, which opened on Jan. 1, 2012. The permanent headquarters for the Madison Precinct and the DNA Crime Laboratory will be completed in January, 2014.
Additionally, Mayor Dean opened a replacement West Precinct in December, 2011 at 5500 Charlotte Avenue. A new Central Precinct is under construction near Music City Center to replace the precinct currently located at Bridgestone Arena.
Judge Orders $1 Million Returned to Exotic Dancer
July 22, 2013
A federal judge has ruled that Nebraska cops must return over $1 million confiscated at a traffic stop from a woman who saved the money $1 at a time during her 15 year career as an exotic dancer.
The money belongs to Tara Mishra, 33, of Rancho Cucamonga, Calif., who began putting aside her earnings when she started dancing at age 18, according to an opinion U.S. District Judge Joseph Bataillon wrote last week. The money was meant to start her business and get out of the stripping business, the judge wrote.
State troopers confiscated the money in March 2012 when they pulled over Rajesh and Marina Dheri, of Montville, N.J., for speeding in Nebraska, according to court documents. The Dheris are friends of Mishra and had been given the cash so they could buy a nightclub in New Jersey. Mishra would own half of the business and the Dheris would own the other half.
Mishra had packaged the money in $10,000 bundles tied with hair bands and placed in plastic bags, and it was stashed in the trunk of the Dheri's rented car, which the Dheris were driving to Chicago. When they were pulled over for speeding, a state trooper asked the Dheris if he could search their vehicle, which they allowed, Bataillon explained.
The state trooper found the money and after suspecting it was drug money took the Dheris into custody, according to the judge's opinion. But police did not find any evidence of drug activity in the car and a K-9 analysis found only trace elements of illegal drugs on the cash, according to Bataillon.
Neither Mishra nor the Dheris could not be reached for comment.
"The government failed to show a substantial connection between drugs and the money," Bataillon wrote in his opinion. "The dog sniff is inconsequential…The court finds the Mishras' story is credible…Ms. Mishra did have control over the money and directed the Dheris to deliver the money to New Jersey for the purchase of the business."
Bataillon ordered that Mishra receive cash or a check in the value of $1,074,000 with interest.
DUI Ignition Interlocks Required July 1, 2013 -
July 17, 2013 (reprint)
Gov. Bill Haslam has signed into law legislation requiring all persons convicted of DUI with a blood alcohol concentration of .08 or greater to use ignition interlocks on their vehicles to prevent future offenses. Beginning July 1, when the new law goes into effect, first time offenders will be required to use an interlock device for a period of six months as a condition of a restricted license. According to the Chattanoogan, Tennessee becomes the 18th state to pass such legislation.
Battle Over 'Guns in Trunks' Law May Continue
July 17, 2013
Lt. Gov. Ron Ramsey said he will “probably” support an anticipated push to change the state’s “guns in parking lots” law next year to clarify that permit holders cannot be fired solely for having their guns in a locked car in their employers’ parking lots. In May, Attorney General Bob Cooper issued a formal legal opinion that said the new law— while forbidding any criminal prosecution of permit holders complying with its provisions — will have no impact on Tennessee law that otherwise generally allows a company to fire an employee “at will,” for any reason or no reason. The Memphis Commercial Appeal reports that Ramsey stated Cooper “muddied the waters” on the issue and he has received complaints from employee’s who were upset that their company’s prohibition on guns in parking lots remains unchanged.
DUI by Consent!
July 15, 2013
Tennessee DUI Law provides that an owner or passenger of a vehicle may be held criminally liable for the actions of another person who commits the offenses of DUI, vehicular homicide, or related Tennessee crimes. This means that an owner or passenger may be found guilty of a Tennessee DUI offense when the driver is found guilty of Tennessee Driving Under the Influence. This crime is most commonly referred to as “DUI By Consent.”
A passenger or owner of a vehicle may be found guilty of DUI under Tennessee law even if the passenger or owner never drives. As a result, two or more people in the same car may be arrested and charged with Driving Under the Influence, even if only one person drove or operated the vehicle. In certain circumstances, a person can be charged and convicted of DUI by Consent even if he or she is not present in the vehicle at the time of the driver’s arrest.
If convicted of DUI by Consent, the passenger or owner is subject to the penalties of a DUI conviction. If the driver is a multiple offender, or if the passenger or owner has prior DUI convictions, unique issues may arise as to which penalties apply. If you are charged with DUI by Consent in Nashville, call me today and let's talk about how to get it dismissed.
July 12, 2013
An opinion piece in the Commercial Appeal suggests it may be time to get television cameras out of the courtrooms, or at least encourage judges to exclude electronic media from high-profile trials. Kathleen Parker of the Washington Post Writers Group says that excessive media coverage and commentary “may be good theatre but bad for justice.” Citing coverage of the George Zimmerman murder trial, Parker says it is the court’s responsibility to protect the defendant’s rights to as fair a trial as possible, which means ensuring a “neutral and detached environment.”
July 1, 2013
A recent change in bail bonding law, which took effect July 1, may mean that defendants have to pay a bail company twice for the same case, the Nashville City Paper reports. Prior to the change, state law required that bail agents stay on bonds they issue until clients are exonerated or sentenced. Now bonding agents are free from liability as soon as the client pleads guilty. John Zimmermann, an assistant district attorney in Davidson County, reacted saying, “Unsuspecting defendants will have their bonds summarily revoked before they are sentenced” which will allow “bonding companies the opportunity to charge even more money to defendants and their families for their freedom.” The Tennessee Association of Professional Bail Agents, however, applauded the change saying it was in line with the risk bondsmen face after a conviction or guilty plea.
July 1, 2013
Department of General Services Commissioner Steve Cates and Department of Safety and Homeland Security Commissioner Bill Gibbons are appealing U.S. District Court Judge Aleta Trauger's ruling last month that they were liable for damages to Occupy protesters both in their capacities as state officials and individually The commissioners helped institute “new rules” for Occupy Nashville protestors on War Memorial Plaza in 2011. According to the Nashville City Paper, Trauger criticized Cates and Gibbons for failing to consult with the attorney general before creating rules that led to the arrest of Occupy protesters.