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According to the American Bar Association, the purpose of bail is simply to ensure that defendants who have been released will appear for trial and all pretrial hearings for which they must be present.  In Tennessee, all persons charged with a criminal offense are entitled to a reasonable bail, except those charged with capital offenses where the proof is evident or the presumption great. 
 
The Court has wide discretion in determining the amount of bail.  However, Tennessee Code Section 40-11-115 outlines the factors that the Court must take into consideration.  Those factors are as follows:

 
(1) The defendant's length of residence in the community;

 (2) The defendant's employment status and history, and financial condition;

 (3) The defendant's family ties and relationships;

 (4) The defendant's reputation, character and mental condition;

 (5) The defendant's prior criminal record, including prior releases on recognizance or bail;

 (6) The identity of responsible members of the community who will vouch for defendant's reliability;

 (7) The nature of the offense and the apparent probability of conviction and the likely sentence, insofar as these factors are relevant to the risk of nonappearance; and

 (8) Any other factors indicating the defendant's ties to the community or bearing on the risk of willful failure to appear.
 
If a friend or family member is in jail with an unreasonably high bail amount, an experienced criminal defense attorney may be able to get the bail reduced if the above factors indicate that the person is not a flight risk and will indeed appear for all future Court dates.  McFarland Law Office, located in Clarksville, Montgomery County, would be happy to review these factors with you and, if appropriate, present a strong argument to the Court to reduce bail to a reasonable amount, allowing your loved one to return home.  Consultations are always free.

If You Have Questions Please Feel Free To Contact Our Office.

Ryan K McFarland  •  attorneymcfarland@gmail.com    1 (​931) 516-9009
 
Are you thinking of “electronic eavesdropping,” such as reading emails or recording conversations?  If so, there are a few things you should know.

The federal Electronic Communications Privacy Act (ECPA) Act of 1986 made unauthorized access to and interception of the private communications of others illegal, and today this can include listening to, recording, or reading communications from traditional telephone wiretaps whether on “landline” or cordless phones, email, voicemail, pagers, chat logs, and video, even if the other person is your spouse.  If you can imagine any other way of “electronic” eavesdropping or recording, just assume it’s also on the list. For instance, “guessing” your spouse’s email password and reading messages there could be ruled an invasion of privacy.

Just this month, an Ex-Brooklyn Prosecutor was convicted of illegal surveillance and was disbarred. Tara Lenich admitted to cutting judges signatures from documents and pasting them on applications for wiretaps in order to eavesdrop on her love interest. Lenich originally faced 20 counts of possession of a forged instrument and two counts of eavesdropping, and last spring, pleaded guilty to two charges of illegal wiretapping, a federal charge for which she could face up to 10 years in prison and a fine of up to $250,000.  She also gets to deal with a civil suit that was filed by the victim earlier this month. The victim impact statement claims Lenich had “poisoned [her] workplace against [her]”.  The victim claims she was forced to resign from the Brooklyn DA’s Office after working there for 11 years because of the “humiliating looks and behind-the-back comments” she received from coworkers due to Lenich’s actions. She seeks damages.

In Tennessee, electronic surveillance, spying, and snooping can certainly have legal consequences. Under the Tennessee Wiretapping and Electronic Surveillance Act, it is a Class D felony to intentionally intercept or access unauthorized communications, and this includes getting someone else to do it for you. If you violate this law, you could be fined $100 a day for each day of violation or $10,000, whichever is greater. The court could additionally grant punitive damages and attorney’s fees. In Tennessee, you CAN record a conversation with another person without that person’s knowledge or consent, because Tennessee is a “one party” state in this matter. Other states, however, are “two-party” or “all-party” states, meaning that all parties have to know that a conversation is being recorded. Be aware that calling from Tennessee and recording a conversation with someone who happens to live in a two-party state could get you into serious legal trouble.

  • Are you thinking about getting a divorce or are in the middle of contentious divorce proceedings? 
  • Do you think that if you could only present the judge with some hard evidence of your spouse’s bad behavior you might get a better settlement, or custody, or more child support? 

  • Talk with a lawyer before you consider electronic snooping; this might save you from doing something you might regret for a long time.

    If You Have Questions Please Feel Free To Contact Our Office.

    Ryan K McFarland  •  attorneymcfarland@gmail.com    1 (​931) 516-9009
     
    Every criminal case is different, but there are a few fundamental guidelines to remember at all stages of the process, from initial contact with law enforcement agents through working with your attorney.
     
    DO NOT be confrontational or disrespectful when you are speaking with police officers.  Often, your overall tone and attitude will be a determining factor on how the officer decides to proceed.  If asked, you should provide your name, address and phone number. 
     
    If an officer begins to ask questions beyond the basic personal information above, DO NOT answer the questions without your attorney present.  You have the right to inform the officer that you wish to remain silent until your attorney is present.  Even if you are completely innocent, this is not the time to tell the police your story.  Any detail you give the police may later be used against you.  The most simple statement on your part can later be used for purposes you never anticipated or intended.
     
    DO obtain an experienced criminal defense attorney as soon as possible.  Time is not on your side.  When you hire your attorney, he or she will immediately begin to prepare the best possible defense tailored to your particular case.  Any delay on obtaining an attorney is an advantage to police and prosecutors. 
     
    DO choose your attorney wisely.  Notwithstanding the previous point, you have no obligation to hire the first attorney you consult.  Ask him or her about their experience handling your particular matter.  If your best friend had a wonderful divorce attorney, that does not mean that same attorney would be the best fit for you and your situation.  If you do not connect with the attorney or feel comfortable with him or her, look elsewhere. 
     
    DO NOT withhold information from your attorney, no matter how embarrassing it may seem or how insignificant a detail may seem.  Your attorney needs to know everything pertaining to your case, in honest and thorough detail.  This is the only way to prepare your best possible defense.  If you withhold important information, chances are that it will eventually emerge anyway.  It is very important that you fully and truthfully answer any questions your attorney may have for you.  Your case depends on it.
     
    Along with that, DO give your attorney any and all documentation relating to your case.  It is not your job to decide if it is important.  That is why you have an attorney.  The smallest bit of information can make or break a case.  Please provide anything that you may have:  pictures, text messages, videos, court documents you have received.
     
    DO make sure that you keep your contact information updated with your attorney.  If you move, change phone numbers or email, please inform your attorney.  A good defense attorney will need to be in contact with you often.
     
    We understand that, in the event of a criminal case, it often becomes the center of your life.  You want to talk about it.  However, there are three very big DON’TS that you need to keep in mind.  DO NOT post the slightest detail about your case on any form of social media.  It is considered public domain.  Even if you have the highest privacy settings on your account, the information may be read by someone who may later be asked to testify.  DO NOT talk about your case to your friends or family.  It is very understandable that they may be concerned and want to know what is going on and that you may want to discuss it with them so that you feel supported.  You must remember, however, they may be called to testify against you later.  No matter how hard it may be, please do not discuss your case with anyone except for your attorney.  Finally, if you are in jail, DO NOT discuss your case over the phone or to anyone you meet.  None of your phone conversations are private and it is certainly not unheard of for an inmate to trade information for a reduced sentence.
     
    Following these general principles will give you the greatest opportunity for a successful defense and the best possible outcome of your criminal case.

    If You Have Questions Please Feel Free To Contact Our Office.
    Ryan K McFarland  •  attorneymcfarland@gmail.com    1 (​931) 516-9009
     
    The holiday season – from Thanksgiving to New Year’s Day – is the time when we see the highest number of DUI (driving under the influence) arrests. This is not only because we tend to party more and participate in more feasts and family gatherings. It’s also because law enforcement agencies deploy additional personnel to maximize enforcement efforts during the holidays. Police agencies in Tennessee also get special federal grants to conduct sobriety and driver’s license checkpoints during the holidays.

    There are several steps we can all take to avoid a DUI arrest during the holiday season:
    •  Don’t drink and drive. Do not drive under the influence at all.
    •  Eat before you drink. If you are going to drink alcohol, make sure you eat enough food, which will help delay the  absorption of alcohol.
    •  Plan a safe ride home. If you know you’re going to be partying, designate a sober driver. If your designated driver ends up drinking, catch a cab or an Uber. Take the time beforehand to program cab numbers into your phone or download the Uber app and familiarize yourself with how it works.  You don’t want to be dealing with those issues while intoxicated.  Do not drive under any circumstances.
    •  Don’t assume anything. Just because you are close to your home, it does not mean that you are likely to get away with driving under the influence. Also, don’t believe you’re in the clear just because you follow the “one drink an hour” rule.

    Be familiar with just how broad Tennessee’s DUI laws can be.  Take a moment to read our article

    If you or a loved one is charged with a DUI, it is very important that you seek skilled representation immediately. 

    If You Have Questions Please Feel Free To Contact Our Office.
    Ryan K McFarland  •  attorneymcfarland@gmail.com    1 (​931) 516-9009
     
    It is rarely, if ever, in your best interest to allow a search of your vehicle by consent.  However, we realize that this is a stressful situation and you may consent for many reasons:  fear of the consequences of refusal or belief that the officers cannot possibly find anything illegal in your vehicle, for instance.  So, if you willingly give consent for an officer to search your vehicle in Tennessee, and you are subsequently faced with criminal charges as a result of that search, are you simply out of options?  Tennessee case law tells us “not necessarily.”  If a person does give consent to search, an officer’s search can still be challenged if the search exceeded the scope of the consent.
     
      Tennessee case law holds that the standard for measuring the scope of consent is that of “objective” reasonableness.  In other words, what would the typical reasonable person have understood by the exchange between the officer and the suspect?  Obviously this is a very fact-driven analysis depending on what was actually said by both you and the officer.  Let’s look at a Tennessee case to see how this plays out.
     
      In State v. Troxell, the defendant was pulled over for speeding.  The officer asked if the defendant “had any weapons in the vehicle” and if he could “take a look.”  The defendant responded, “Yeah, go ahead.”  The officer proceeded to conduct a twenty minute search of the interior and exterior of the vehicle, going so far as to inspect the undercarriage and remove the gas tank.  (After removing the gas tank, the officer found cocaine stored in it.)  Because of the dialogue of the parties before the search, the Tennessee Supreme Court held that the search exceeded the scope of consent because “it was objectively reasonable to conclude that the consent to search included only the interior of the vehicle and any containers that may have contained weapons,” not the undercarriage and gas tank of the vehicle.  Look back at the officer’s words.  He asked if there were “weapons” and if they were “in the vehicle.”  Therefore, when the defendant gave consent, he was consenting to a search for weapons or any containers that may hold a weapon inside of the vehicle.
     
      In short, even if you have given consent for your vehicle to be searched in Tennessee and subsequently charged with a criminal offense, the dialogue between you and the officer before the consent was given must be examined to see if the search was objectively reasonable.  What, exactly, did you agree to?  Consenting to a search of your vehicle does not automatically give law enforcement the right to search everywhere for every possible bit of evidence that could be held against you, as we saw in Troxell above.  Thus, even if you consented, it may still be possible to hold the search illegal and unconstitutional.  Since this is such a specific, fact-driven situation, you should consult with a criminal defense attorney who is experienced in Fourth Amendment restrictions against unreasonable search and seizure.  McFarland Law Office, located in Clarksville, Montgomery County, will discuss with you the particular nature of your consent and whether the subsequent actions of the officer exceeded that consent.  Consultations are always free and we can be reached at (931) 516-9009.
     
    According to the American Bar Association, the purpose of bail is simply to ensure that defendants who have been released will appear for trial and all pretrial hearings for which they must be present.  In Tennessee, all persons charged with a criminal offense are entitled to a reasonable bail, except those charged with capital offenses where the proof is evident or the presumption great. 
     
      The Court has wide discretion in determining the amount of bail.  However, Tennessee Code Section 40-11-115 outlines the factors that the Court must take into consideration.  Those factors are as follows:
     
    (1) The defendant's length of residence in the community;

     (2) The defendant's employment status and history, and financial condition;

     (3) The defendant's family ties and relationships;

     (4) The defendant's reputation, character and mental condition;

     (5) The defendant's prior criminal record, including prior releases on recognizance or bail;

     (6) The identity of responsible members of the community who will vouch for defendant's reliability;

     (7) The nature of the offense and the apparent probability of conviction and the likely sentence, insofar as these factors are relevant to the risk of nonappearance; and

     (8) Any other factors indicating the defendant's ties to the community or bearing on the risk of willful failure to appear.
     
      If a friend or family member is in jail with an unreasonably high bail amount, an experienced criminal defense attorney may be able to get the bail reduced if the above factors indicate that the person is not a flight risk and will indeed appear for all future Court dates.  McFarland Law Office, located in Clarksville, Montgomery County, would be happy to review these factors with you and, if appropriate, present a strong argument to the Court to reduce bail to a reasonable amount, allowing your loved one to return home.  Consultations are always free and we can be reached at (931) 516-9009.
     
    The short answer is, “not always.”  We need to look at the relevant statutes and one important case from the Tennessee Court of Criminal Appeals. 
      Tennessee Code Sections 55-8-142 and 55-8-143 govern the use of turn signals while driving.  The law states that turn signals must be used at intersections, when turning onto a road, or when changing lanes in the event any other traffic may be affected by this movement.  Under the law, then, if no other vehicles could possibly be affected by your turn (for example, there is no traffic directly around your vehicle), then a turn signal is not required.  If that is the case, failure to use a turn signal is not a justifiable reason for you to be pulled over by a law enforcement officer.
     
    In the case of State v. Gonzales (Tennessee Court of Criminal Appeals, 2000), Gonzales was stopped by police for failure to use a turn signal and subsequently convicted for simple possession of cocaine.  Gonzales testified that there was no traffic directly around his vehicle when he was turning.  The officer admitted that he himself was not affected by the turn.  The Appeals court found that the stop was not valid and the conviction was reversed.
    Obviously, the best practice is to always use a turn signal to avoid the possibility of a traffic stop.  However, under Tennessee law and case history, you are not required to do so if no other traffic may be affected by your movement.
     
      As with any traffic stop, the preliminary issue is whether your Fourth Amendment protections against unreasonable search and seizure have been violated.  If so, any evidence found as a result of that violation must be disregarded.  Because the issue is very fact specific, you should consult a criminal defense attorney to protect your best interests.  If you or a loved one are facing criminal charges due to a traffic stop, McFarland Law Office would be happy to examine every aspect of your particular circumstances to determine if the stop was in violation of your Constitutional rights.  Located in Clarksville, Montgomery County, we are available for a free consultation to review your legal issue and explain your possible defenses.  We can be reached at (931) 516-9009.
     
     When we think of a DUI, we generally think of having too much to drink and then being pulled over while driving.  While that is certainly the cause of the majority of charges, there are other ways that you could be charged with a DUI.  It is certainly best to be aware of these scenarios beforehand.
     
      First, you don’t have to be drinking to be charged with a DUI in Tennessee.  Essentially any substance that impairs your central nervous system could make you guilty of a DUI.  You can be guilty of a DUI while under the influence of a number of substances besides alcohol, including illegal drugs, certain over-the-counter drugs, and prescription drugs that have been legally prescribed to you.
     
      Next, you don’t have to be in an “automobile” to be charged with a DUI in Tennessee.  Tennessee Code Section 55-10-410, the leading DUI statute, refers to “any automobile or other motor driven vehicle”.  So, the issue becomes, what is a “motor driven vehicle”? This could become important in several scenarios.  Let’s say that it is a hot summer day and have a few drinks while mowing your lawn with a riding lawnmower (probably not the best idea, by the way).  Then, feeling charitable, you decide to ride your mower in the road just a few houses down to cut your neighbor’s lawn.  You could be charged with DUI. 
     
      Indulge us for just a moment.  How far can this statute reach?  Unfortunately, no attorney can tell you for sure.  Does your child have one of those motorized vehicles, maybe a Barbie Jeep that goes three miles an hour?  Although there is no case law that addresses this particular scenario, it is theoretically possible that taking the Barbie Jeep for a spin on your dead-end street after a few drinks may land you a DUI charge because under the law it could be considered a “motor driven vehicle.”  If you may be impaired in any way the safest course it to stay away from anything that has a motor.  It might end up as a funny story to tell your grandchildren one day but would definitely not be worth the legal trouble to be pulled over and arrested for a DUI in your kid’s Barbie Jeep. 
     
      Further, you don’t even have to be driving to be charged with a DUI in Tennessee.  You may think you are doing the responsible thing and sleeping in your car for awhile before driving home.  The question is whether you are in “physical control” of the automobile or other motor driven vehicle.  The Tennessee Supreme Court set the precedent on this issue when the Court upheld in 1993 the DUI conviction of an individual who fell asleep in his automobile with the keys.  Again, if you may be impaired, and it has a motor, just stay away from it.
     
      This brings us to the combination of Tennessee’s DUI statute mentioned above and Tennessee Code Section 55-10-201 which defines “parties to a crime”.  You can be charged with DUI as a passenger if you have allowed an impaired person to drive your car.  Specifically for this article, it defines who is a party to the crime of DUI: “[e]very person who commits, attempts to commit, conspires to commit, or aids or abets in the commission of any [DUI] . . . is guilty of [DUI].” This scenario will often come into play when, for instance, you have been drinking with a friend and said well-meaning friend says, “Give me the keys to your car.  You’ve had more to drink than I have.”  Then your friend who nicely offered to drive you home is charged with DUI him/herself.  That is something to think about before getting into your car with an impaired friend behind the wheel. 
     
      Finally, we come to Tennessee State Code Section 55-10-202, which makes it a Class C misdemeanor when “the owner, or any other person, employing or otherwise directing the driver of any vehicle to require or knowingly to permit the operation of the vehicle upon a highway in any manner contrary to law.”  This should certainly be cause for concern if you allow someone to borrow your vehicle if you think they might be intoxicated.

    Which of these ways to be charged with DUI surprised you the most?  Let us know in the comments below.  Your feedback helps us to tailor our future blogs to better serve our readers.

     
      In summary, knowledge of Tennessee DUI law may prevent you from unintended, unpleasant consequences.  Obviously, drunk driving is not the only way to be charged with a DUI.  If you or a loved one are facing a DUI charge for any reason, you should seek a knowledgeable and experienced criminal defense attorneyMcFarland Law Office, located in Montgomery County Tennessee, would be happy to assist you and work with you for a dismissal or reduction in charges.  Consultations are always free and we will examine your unique circumstance and explain your options.  We can be reached at (931) 516-9009.
    The Fourth Amendment of the United States Constitution protects us against unreasonable searches and seizures. However, law enforcement officials often make mistakes, whether from lack of knowledge or training or in an over eager attempt to curtail criminal activity. Unfortunately, it is highly unlikely that you will have access to a criminal defense attorney while a search is being conducted of your home. Therefore, it is beneficial to know the principles of a home search so that you can later discuss any possible violations of your Fourth Amendment rights with your criminal defense attorney.

    Under most circumstances, police cannot search your home without a warrant unless you give consent. Read our previous post of January 27, 2016, on consent and avoiding a little known pitfall. It is rarely in your best interest to consent to a search without a warrant. If you do give consent and it is later found that the police mislead you regarding who or what is being investigated, any evidence found may be excluded. The police officer does not have the obligation to tell you that your consent could lead to a criminal prosecution.

    If the police do have a warrant, the Fourth Amendment requires that it must describe the place that will be searched and what evidence they will seize. Essentially, the warrant must be specific enough that any officer would be able to determine the exact area described and the exact evidence that they are looking to seize. For example, if the warrant allows a search of the home, the officer is probably out of bounds if he or she also searches your detached storage shed. Further, the inspection must be confined to spaces that could possibly contain the relevant evidence. If an officer is searching for a gun, he or she cannot search kitchen drawers that are obviously too small to contain the gun he or she is searching for.

    Please note that any evidence that is in “plain view” of the officer conducting the search, even if it is not specifically listed in the warrant, is subject to seizure and most likely admissible in court.

    Rule 41 of Tennessee’s Rules of Criminal Procedure governs warrants and searches and seizures. It states, in part:

    1)Who May Execute.The search warrant may only be executed by the law enforcement officer, or one of them, to whom it is directed. Other persons may aid such officer at the officer’s request, but the officer must be present and participate in the execution.

    (2)Authority for Forcible Entry.If, after notice of his or her authority and purpose, a law enforcement officer is not granted admittance, or in the absence of anyone with authority to grant admittance, the peace officer with a search warrant may break open any door or window of a building or vehicle, or any part thereof, described to be searched in the warrant to the extent that it is reasonably necessary to execute the warrant and does not unnecessarily damage the property.

    (3)Timely Execution.The warrant must be executed within five days after its date.

    (4)Leaving Copy of Warrant and Receipt.The officer executing the warrant shall:
    (A) give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property; or
    (B) shall leave the copy and receipt at a place from which the property was taken.

    Having your home searched is most likely a very upsetting event. It is always advisable to speak with a criminal defense attorney, especially if evidence was seized or if you feel that your Fourth Amendment rights were violated. Ryan K. McFarland of McFarland Law Office, located in Clarksville, Montgomery County, has thorough knowledge of and experience with the limitations placed on police by the Constitution and by state and federal law. We are very happy to discuss your situation with you. Consultations are free of charge. Feel free to contact us at (931) 516-9009.
    It certainly doesn’t require a law degree to know that police cannot search your home without a warrant (in most circumstances) unless you give them consent to do so. That topic is covered pretty thoroughly in popular television. However, there is a notable wrinkle in this that was created by the Supreme Court in 2014.

    In Fernandez v. California, the Court held that if co-occupants of the home disagree as to whether to consent to a search without a warrant, removal of the disagreeing party from the premises for any lawful purpose (thus leaving only the agreeing party present) is enough to permit the search.

    How can this affect you? Imagine that you shared an apartment with a roommate. The police come to your apartment without a warrant and want to search the premises due to reasonable suspicion of drugs or contraband of any kind. You, knowing your Fourth Amendment rights because you regularly read this blog, refuse to consent to the search. Your roommate, (who doesn’t read this blog) says, “Yes, officers, come on in. I have nothing to hide.” Previous case law would require the police to leave and return with a warrant since one of the legal inhabitants of the apartment denied consent. As per Fernandez v. California, the police now have another option: remove you from the premises for any “objectively reasonable purpose,” leaving only your roommate who continues to give consent. Thus, since you are no longer physically present to object, the police may search your apartment even though you just told them that you refuse.

    In short, please inform all co-habitants of your home that it is rarely, if ever, a good idea to consent to a warrantless search of your home.

    If your home has been searched and/or your property has been seized, consult with a criminal defense attorney knowledgeable of your Fourth Amendment protections against unreasonable search and seizure. Located in Clarksville, Montgomery County, McFarland Law Office can analyze whether any evidence gathered against you can be challenged or thrown out due to violations of your Fourth Amendment rights. Our firm is committed to upholding the rights granted in the Constitution and would be happy to help you. Consultations are always free and we can be reached at (931) 516-9009.
    We are often asked if it is better to consent or to refuse to take a chemical test when you are pulled over on suspicion of DUI in Tennessee. Unfortunately, there is no easy answer to this question, as it involves a complex interplay between a DUI charge and a violation of Tennessee’s Implied Consent Law.

    Tennessee’s Implied Consent Law is found in Tennessee Code Section 55-10-406. It applies to every county, including a DUI in Clarksville, Montgomery County. This law states, in part:

    Any person who drives a motor vehicle in this state is deemed to have given consent to a test or tests for the purpose of determining the alcoholic content of that person's blood, a test or tests for the purpose of determining the drug content of the person's blood, or both tests. However, no such test or tests may be administered pursuant to this section unless conducted at the direction of a law enforcement officer having reasonable grounds to believe the person was driving while under the influence of alcohol, a drug, any other intoxicant or any combination of alcohol, drugs, or other intoxicants…

    Therefore, the Implied Consent Law is triggered if you are pulled over for suspicion of DUI. It is important to note that this is a separate charge from a DUI. Thus, if you refuse to take a breath or blood test in Montgomery County then you are looking at a possible charge for violation of the implied consent law in addition to a charge of DUI. Violation of implied consent is civil in nature, and is not a criminal charge. However, violation of the implied consent law may cause you to have your drivers’ license revoked for one year, and can be more severe for subsequent violations.

    Refusing a chemical test does not mean that you will automatically be found innocent of a DUI due to lack of evidence because you could also be charged with DUI in the officer’s opinion based upon the field sobriety tests that may have been conducted at the scene. In light of the way a DUI and implied consent charge work together, it is hard to say that refusal of a blood or breath test is always the best policy because sometimes it is and sometimes it is not.

    It is important to know beforehand that if you do submit to a blood test, you are entitled to request a subsequent independent test of your own, but your attorney will have to do this for you during the court process. In Tennessee, you do not have the right to speak with a DUI criminal defense attorney in Montgomery County before deciding whether or not to submit to a breath or blood test, so knowledge of your rights and the consequences of your choices before the incident occurs is very important.

    There is one other important consideration that you should discuss with your DUI criminal defense attorney if you are charged with violation of implied consent. Tennessee Code requires the following:

    Any law enforcement officer who requests that the driver of a motor vehicle submit to either or both tests authorized pursuant to this section, for the purpose of determining the alcohol or drug content, or both, of the driver's blood, shall, prior to conducting either test or tests, advise the driver that refusal to submit to the test or tests will result in the suspension by the court of the driver's operator's license; if the driver is driving on a license that is cancelled, suspended or revoked because of a prior conviction as defined in § 55-10-405, the refusal to submit to the test or tests will, in addition, result in a fine and mandatory jail or workhouse sentence; and if the driver is convicted of a violation of § 55-10-401, that the refusal to submit to the test or tests, depending on the person's prior criminal history, may result in the requirement that the person be required to operate only a motor vehicle equipped with a functioning ignition interlock device. The court having jurisdiction of the offense for which the driver was placed under arrest shall not have the authority to suspend the license of a driver or require the driver to operate only a motor vehicle equipped with a functioning ignition interlock device pursuant to § 55-10-417 who refused to submit to either or both tests, if the driver was not advised of the consequences of the refusal.

    You must be advised by an officer of the consequences of your refusal, and you will usually be asked to sign a form verifying the officer so instructed you. If you are not so advised, your DUI criminal defense attorney can likely prevent the revocation of your license. Lastly, it is up to the officer which form of chemical testing to offer you. Please consult with a knowledgeable, experienced DUI criminal defense attorney if you find yourself facing these charges.
    ​ Every criminal case is different, but there are a few fundamental guidelines to remember at all stages of the process, from initial contact with law enforcement agents through working with your attorney.

    DO NOT be confrontational or disrespectful when you are speaking with police officers. Often, your overall tone and attitude will be a determining factor on how the officer decides to proceed. If asked, you should provide your name, address and phone number.

    If an officer begins to ask questions beyond the basic personal information above, DO NOT answer the questions without your attorney present. You have the right to inform the officer that you wish to remain silent until your attorney is present. Even if you are completely innocent, this is not the time to tell the police your story. Any detail you give the police may later be used against you. The most simple statement on your part can later be used for purposes you never anticipated or intended.

    DO obtain an experienced criminal defense attorney as soon as possible. Time is not on your side. When you hire your attorney, he or she will immediately begin to prepare the best possible defense tailored to your particular case. Any delay on obtaining an attorney is an advantage to police and prosecutors.

    DO choose your attorney wisely. Notwithstanding the previous point, you have no obligation to hire the first attorney you consult. Ask him or her about their experience handling your particular matter. If your best friend had a wonderful divorce attorney, that does not mean that same attorney would be the best fit for you and your situation. If you do not connect with the attorney or feel comfortable with him or her, look elsewhere.

    DO NOT withhold information from your attorney, no matter how embarrassing it may seem or how insignificant a detail may seem. Your attorney needs to know everything pertaining to your case, in honest and thorough detail. This is the only way to prepare your best possible defense. If you withhold important information, chances are that it will eventually emerge anyway. It is very important that you fully and truthfully answer any questions your attorney may have for you. Your case depends on it.

    Along with that, DO give your attorney any and all documentation relating to your case. It is not your job to decide if it is important. That is why you have an attorney. The smallest bit of information can make or break a case. Please provide anything that you may have: pictures, text messages, videos, court documents you have received.

    DO make sure that you keep your contact information updated with your attorney. If you move, change phone numbers or email, please inform your attorney. A good defense attorney will need to be in contact with you often.

    We understand that, in the event of a criminal case, it often becomes the center of your life. You want to talk about it. However, there are three very big DON’TS that you need to keep in mind. DO NOT post the slightest detail about your case on any form of social media. It is considered public domain. Even if you have the highest privacy settings on your account, the information may be read by someone who may later be asked to testify. DO NOT talk about your case to your friends or family. It is very understandable that they may be concerned and want to know what is going on and that you may want to discuss it with them so that you feel supported. You must remember, however, they may be called to testify against you later. No matter how hard it may be, please do not discuss your case with anyone except for your attorney. Finally, if you are in jail, DO NOT discuss your case over the phone or to anyone you meet. None of your phone conversations are private and it is certainly not unheard of for an inmate to trade information for a reduced sentence.

    Following these general principles will give you the greatest opportunity for a successful defense and the best possible outcome of your criminal case.
    The Fourth Amendment to the United States Constitution protects us against “unreasonable searches and seizures.” An officer may only search your vehicle where there is probable cause to suspect criminal activity, or if you give consent to a search.

    How, then, can it be possible for you to be pulled over for a minor traffic infraction, such as a broken taillight, and suddenly discover that a trained canine is circling your vehicle and sniffing for drugs without your consent? Unfortunately, many police departments in Tennessee, and throughout the United States, routinely use drug dogs in this questionable matter by employing some subversive tactics and with a little help from a few Supreme Court decisions.

    In Rodriguez v. United States (2015), the Supreme Court ruled that that police cannot hold you in a traffic stop any longer than is necessary to perform the routine tasks of checking your registration, writing a citation, or issuing a warning. In other words, unless you agree or there is probable cause of criminal activity, the police cannot make you wait for a canine unit to arrive. The Court held that if an officer unnecessarily prolongs the stop, your Fourth Amendment protection against unreasonable seizure has been violated. However, as previously stated, many police departments have instituted subversive procedures to get around the Court’s decision. For example, a certain geographical location may be targeted for supposed drug activity. Officers may be instructed to pull over vehicles for any minor infraction that might have been otherwise ignored. The twist to this scenario is that a canine drug unit is stationed and waiting very close by. Thus, the drug dog could arrive on the scene quickly. Since the original officer did not need to prolong the stop to wait for the drug dog, the Court’s decision tells us that this is not on unreasonable seizure and thus does not violate the Fourth Amendment.

    Alright, you might say, the police have figured out how to use drug sniffing dogs without being guilty of “unreasonable seizure,” but the Fourth Amendment also protects me against “unreasonable search” and surely a drug dog sniffing around my car simply because I forgot to use my turn signal is obviously an “unreasonable search,” right? Common sense dictates that you would be correct. The Supreme Court, however, has ruled otherwise.

    In the 2005 case of Illinois v. Caballes, the Court held that a drug dog sniff during a routine traffic stop is not a search under the Fourth Amendment. Thus, your Constitutional protection against “unreasonable searches” does not apply. The logic is difficult to follow but to simplify the Court’s opinion, official conduct that does not violate your “reasonable expectation of privacy” is not a search under the Fourth Amendment. The possession of contraband, the Court wrote, is not a situation in which you can reasonably expect privacy. The Court relied upon a 1983 decision, United States v. Place, which reasoned that a dog sniff would not require you to open your luggage (or in this case, your vehicle) and thus would not expose non-contraband items. Thus, if you do not have contraband, your expectation of privacy was not violated, and if you do have contraband you had no reasonable expectation of privacy in the first place.

    So where does that leave us? It leaves us with very little protection during the actual traffic stop. If wish to refuse a search or you don’t want to consent to have your car sniffed by a drug dog, say so clearly, and then ask for permission to leave. If your traffic violation has already been fully addressed, then it is likely you are being unlawfully detained. Please take note of the time you were pulled over, the duration of the stop, and the precise sequence and timing of events. This is not the time to challenge the authority of the law enforcement officer. If the officer refuses to allow you to leave and a drug dog gives a positive indication, it will be your defense attorney’s job to challenge the lawfulness of your arrest or to suppress any evidence seized as a result of such violations. Here is a link to some of the possession/ drug cases that I have handled in Montgomery County General Sessions Court, some of which are cases in which the officer did not respect the Defendant’s Fourth Amendment rights, and as a result I was able to have their cases dismissed.

    What are your thoughts on this topic? Specifically, do you agree or disagree with the Supreme Court decisions above or the police tactics discussed? Do you think a drug dog sniffing your car without probable cause or your consent should constitute a “search” under the Fourth Amendment?



    Consider this common scenario: you and your spouse or family member or significant other are involved in a heated argument. You are both very angry and you can see no end in sight. Perhaps your children are scared because you are both yelling. Your spouse or family member picks up a book and throws it across the room out of anger. You just want the argument to stop. You know that police respond to domestic issues daily and you consider calling for an officer to come act as a mediator and help you resolve the dispute peacefully. What do you do?

    In this time of distress, many people will instinctively call the police simply for help in settling the argument. However, this can have unintended, drastic consequences. Suddenly, a heated argument and request for police assistance in solving a dispute can quickly turn into an arrest for domestic assault even if no physical contact ever occurred. How can this happen? The answer lies in the definition of “assault” in the Tennessee Code Section 39-13-101, which states:

    (a)A person commits assault who:
    (1)Intentionally, knowingly or recklessly causes bodily injury to another;
    (2)Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or
    (3)Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.

    If you look closely at the second definition above, you will notice that no physical contact is necessary to charge someone with domestic assault. Depending on the circumstances, shouting, using harsh language, or slamming doors could reasonably cause a person to fear imminent bodily injury. Thus, once the police arrive on the scene, it becomes a judgment call for the officer. The police more than likely will not sit you both down, discuss the issue and help you to resolve the problem. The most likely scenario is that the officer will arrest the person who seems to be the most aggressive and charge him or her with domestic assault, even though there was no physical contact and even though you had no intention of having your spouse or family member arrested. The police will not mediate your disagreement. They will more often than not make an arrest to prevent further escalation and under the Tennessee Code definition of “assault” above, charge one of the parties with domestic assault.

    Many people are simply unaware that a domestic assault in Tennessee does not require physical contact. Similarly, many people are unaware that requesting police assistance in resolving a dispute may have such unintended consequences. To read more about the severe consequences of a domestic assault charge, please read our domestic assault information page.

    What do you think? Were you surprised by this information? Do you think that police officers should act more as a mediator, or do you think that an arrest and charge of domestic assault is more appropriate? Let us know in the comments below.

    (Important note: this post is not intended to discourage you from calling for police assistance when you feel that you or your children are in danger. In that situation, do not hesitate to dial 911. This is merely intended to inform you that asking a police officer to merely solve a dispute may likely have unintended consequences.)

    I have represented numerous clients in the Montgomery County area who have been charged with domestic assault without ever making physical contact with the alleged victim. Please see my case resultsfor examples of outcomes.
    I have handled numerous DUI cases in Montgomery County, surrounding counties, and on Fort Campbell military base in which the reason for the stop of the vehicle by the officer is unknown to the Defendant, now charged with DUI, or is what a defense attorney would call a pre-textual stop (meaning a stop on the pretext or for the stated reason that an offense or crime occurred which was the basis for the stop when no such offense or crime in fact occurred). The important point to remember is that when an officer stops your vehicle without reasonable suspicion or probable cause to do so, any evidence obtained as a result of the stop is excluded by the 4th Amendment of the United States Constitution.

    Tennessee Courts have held that “neither drifting within a lane nor merely touching a dividing lane is sufficient basis to stop a vehicle.’’ The Supreme Court of Tennessee has concluded that “if failure to follow a perfect vector down the highway was sufficient reason to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.”

    The former Tennessee Titan’s quarterback, Steve McNair, was charged with a DUI in Nashville, Tennesseeand had the case against him dismissed in July of 2004 because of the prosecution’s failure to meet the requirement of the 4th Amendment that law enforcement have reasonable suspicion to initiate a stop of a person suspected of a crime. The videotape of the Defendant driving his Lincoln Navigator showed: (1) his left tires touching the yellow line and riding on the line for approximately 4 seconds (2) showed his left tires touching the yellow line immediately before and where there is a center “turn lane” marked with diagonal yellow lines indicating it is no longer a turn lane for approximately 6 seconds and lastly (3) his left tires touching the yellow line for approximately 3 seconds.

    Although the Defendant submitted to a test indicating a breath alcohol content (BAC) of 0.18% at the time of his arrest, the case was dismissed because the evidence against him was excluded after the Court concluded that the Defendant’s driving over a two block period did not provide "specific and articulable facts", i.e. reasonable suspicion, that the Defendant was driving under the influence. As a result of the illegal stop, all evidence against the Defendant was excluded.

    The 4th Amendment protects us from intrusion into the privacy of our lives by unwarranted governmental searches, and mandates that if searches are deemed unwarranted, as in the case against Steve McNair,then the evidence obtained shall be excluded.

    So how does everyone feel about this?

    I'll start with my opinion, which is that without strict adherence to the principles of the 4th Amendment and the exclusion of illegally seized evidence, we would open the door to a police state where personal freedoms and fundamental rights were disregarded and abused. I believe in and fight for a system in which basic fundamental freedoms guaranteed us in our Constitution are honored and given full effect.