Philip Blackburn—the Defendant

Danny Green—the codefendant; he testifies for the State

Priscilla Allen—the victim; she testifies for the State

Kamela Ward—another victim; she also testifies for the State

Mr. Blackburn and Mr. Green were charged with robbing a fast food joint.  Blackburn went to trial, Green opted to testify for the state and cut a deal.  Ms. Ward and Ms. Allen were employees of the store that were robbed.  At trial, the two women testified first.  They basically stated that they were at the store the morning of, they had just opened the place up, and two gunmen came in and robbed the place.  So far, so good for the government.  Then the codefendant gets on the stand.  He’s testifying against his partner so he can get a better deal.  He first waives his 5^th Amendment right against self-incrimination.  He testifies to the robbery, how Mr. Blackburn approached him with the idea.  Then he testifies that he and Mr. Blackburn met with some other people a few days before the robbery to plan it.  We all got together and decided who was going to do what, he says.

And who were these other people, asks the prosecutor?

Ms. Ward and Ms. Allen, he replies.

Who?

Ms. Ward and Ms. Allen.  You know, like, the victims.

Whoops.

I tell you, you’ve got to love this line of work.  If you don’t laugh at it you’ll go crazy.  After realizing that their whole case was an inside job, that this was not even close to a robbery but actually was more like a simple theft of property, the government, wisely, decided not to ask Mr. Green any more questions.   And the trial judge, after some legal flip-flopping, decided that Mr. Green would not be subject to cross examination and that all of his testimony would be stricken from the record and was not to be considered by the jury.

Mr. Blackburn was convicted as charged and sentenced to 10 years.

Long story short, the appeals court reversed the conviction and sent the case back for a new trial.  I’m glad.  It gives me no pleasure to say this, but that was a terrible call that was made at trial.  To deny the defense from cross-examining a witness who just testified to some seriously exculpatory evidence is unfair and unconstitutional.  Once a witness begins testifying on direct examination, they are fair game for cross even if they stop the direct to invoke a privilege such as the 5^th.  No ifs, ands, or buts.  No exceptions.  

Cross-examination is the absolute bedrock of our justice system.  It is the only way to insure that the truth comes out.  Without it we might as well change the name of this country from “The United States” to “The Congo,” or “Iran.”   

So let’s assume the client has been convicted.  What happens next?  Here is a breakdown, from first offense to fourth offense.

First offense The mandatory jail time is 24 hours, but if their BAC (assuming they submitted) was above .20 it is 7 days.  Additionally, if it is a sub-.20 BAC, they must perform 24 hours of litter pickup.  This is done in three 8-hour shifts.  A first offense DUI is a Class A misdemeanor, and in Tennessee those are punishable up to 11 months and 29 days.  Therefore, the individual would serve the remainder of the sentence (11 months/27 days) on probation.  Next, they would lose their driver’s license for one year.  They could apply for a restricted license in which they could drive only to get from home to work or school and back, and only during the times indicated on the restricted license order.  The minimum fine is $350. 

Second Offense The minimum jail time is 45 days.  It is still a Class A misdemeanor with a maximum punishment of 11 months and 29 days, so the remainder of the sentence would be served on probation.  Now, however, the individual would lose their license for two years and face a minimum fine of $600.  They could not get a restricted license for the first year but they could for the second year.  During their mandatory jail time they could participate in work release.  Furthermore, the government may seize the person’s car if it is their second offense after January 1, 1997 and the two convictions occur within five years of each other.  The first conviction does not have to have been in Tennessee, but the second one does.

Third Offense The minimum jail time is 120 days.  It is still a Class A misdemeanor with a maximum punishment of 11 months and 29 days, so the remainder of the sentence would be served on probation.  Loss of driver’s license could be anywhere from 3-10 years and the minimum fine is $1100.  Work release and a restricted license are not available. 

Fourth Offense A fourth offense DUI is a felony.  It is punishable anywhere from 1-6 years.  The minimum jail time to be served is 150 days, with probation for the remainder of the sentence.  Loss of driver’s license is for at least five years, and the minimum fine is $3000.  Work release and a restricted license are not available.

There are numerous other costs to a DUI conviction.  All DUIs, even first offenses, stay on the person’s record forever.  They cannot be expunged.  There will be additional costs in the form of alcohol safety school, probation supervision fees, and higher insurance costs. 

For purposes of determining as second offense, the preceding conviction must have occurred within 10 years of the current violation.  For determining third offenses and up, each conviction must have occurred within 10 years of the next one, but no convictions more than 20 years old will be considered.

As I said at the beginning, these are simply the penalties.  This is what happens after a conviction.  It’s what happens before a conviction that’s going to determine the outcome.  That entails analyzing the traffic stop, analyzing the breath and field sobriety test, and determining whether the government can meet the elusive “under the influence” standard. These will all be subjects for future posts.

Max: Winston found you.

Ordell: How the fuck did he find me?

Max: That’s what Winston does.  He finds people who don’t want to be found.

Jackie Brown, 1997

Bail bonds are really a form of insurance.  They are there to insure a defendant’s appearance in court.  Once someone is arrested and booked, they will be given a bond.  In order to be released they must pay the bond. 

If someone’s arrested, how do they go about paying the bond and getting let out of custody?  There are two ways.  They can pay what’s called a cash bond.  A cash bond is actually paying the full amount of the bond in cash—no checks or credit cards.  The other way is to get a bail bonding company to pay.  Most bonding companies will require about 10% of the bond to be paid to them.  They will then cover the bond.  So if someone’s bond is set at $5,000, a bonding company is going to require $500.  If the defendant bonds out, then doesn’t come to court, the bonding company will try and find the person.  (If you’ve ever watched that show “Dog the Bounty Hunter” you know how this works.)  The bonding company will try real hard to find their person because if they don’t, they’ll be on the hook for the whole amount. 

One other thing about cash bonds: the person gets the bond back once the case is disposed of, even if they are convicted.  However, if they owe court costs the court will take that out of the bond first and then give them back the difference.  Also, if the defendant goes on probation they don’t get it back until the end of the probation term.

Bonds usually are set by judicial commissioners.  The amount is going to depend largely on the crime with which the person is charged.  If the person is deemed a flight risk and/or has an extensive arrest history the amount will be higher.  Judges can lower a bond if it is too high for the person to pay.  This is going to require a hearing with proof.  The client is going to want to have family members there at court, as well as proof of employment, to have a chance of persuading a judge to lower the bond. 

Let’s start with the federal laws.  The federal laws dealing with purchasing and possessing firearms and ammunition can be found in Title 18, Section 922 of the United States Code.  First, in subsection (x), the law prohibits juveniles (those under 18) from possessing a handgun and handgun ammunition, and prohibits others from furnishing the same to juveniles.  Following that are numerous exceptions, the most common being for hunting, target practice, or taking a gun safety class.  Tennessee’s state laws are much the same.  Under Tenn. Code Annotated 39-17-1319 it is a crime for a juvenile to possess a handgun, and it is a crime for others to provide handguns to juveniles. 

Other guns   Juveniles may own or possess rifles or shotguns, but they cannot buy them.  This is addressed in subsection (b) of Section 922.  What about minors, those between the ages of 18 and 21?  They can buy rifles and shotguns, but they cannot buy pistols, and they cannot buy ammunition for rifles, shotguns, or pistols.  So if you’re under 21 you cannot buy ammunition of any kind.  You may possess it, however; so it could be given as a gift.  Also, once someone becomes 18 they may possess a handgun in their home.  So if a parent has a 19-year old that’s moved out and living on their own, they may buy them a pistol to keep at the house, notwithstanding other laws.  Notice I say possess in their home.  They could not carry it outside the home because they could not apply for a Tennessee Handgun Carry Permit until they turn 21.  See TCA 39-17-1351. 

Figuring out gun laws can be tricky.  When it comes to laws regulating gun use by a person’s age, you have to ask how old are they, what type of gun is it, and what are they wanting to do with it. 

With police roadblocks, you have to balance the legitimate government interest in safety and crime prevention with citizens’ Fourth Amendment rights to be free from unreasonable searches and seizures.  Most importantly, the roadblock must be neutrally operated.  If the police stop every car, or every second or third car, the roadblock is more likely to pass constitutional muster.  Contrast that to where they simply randomly stop cars, or just stop those in which they have a hunch of criminal activity.  Also, the procedure used must be applied to every car they stop, and any deviation from that must be supported by specific, articulable facts.  In other words, they have to treat everyone the same until they see evidence warranting otherwise.  If the police cannot state their reasons in court, the roadblock could be found unconstitutional and the arrest thrown out.  Also, the less discretion given to the officers actually conducting the checkpoint, the more likely it will be to survive a challenge in court.  The government would have to show that the checkpoint was operated along predetermined administrative guidelines and supervisory authority, that the decisions on how to run it were set up beforehand, and that the officers in the field were operating on explicit, neutral, and limiting instructions. 

Some examples: an unconstitutional checkpoint would be where some officers on the local DUI task force decide, amongst themselves, to set up a roadblock on a Friday night.  They decide it that night, and the order from the superior officer is to “look for drunk drivers.”  On the other hand, if the police department decides that, because the next weekend is a holiday weekend and it’s more likely that drunk drivers will be out on the road, they’re going to set up checkpoints at the following specific locations, officers will be ordered to stop every vehicle in both directions, notice will be given on large signs one mile before the roadblock, and each stop will last no longer than 15 seconds absent reasonable suspicion of criminal activity, this setup will be found to be in accordance with the constitution.

What about avoiding a roadblock?  Can a motorist do it?  It is not a crime to avoid a roadblock, but if in doing so the citizen gives the officer reasonable suspicion that a criminal offense is being committed they become fair game.  However, Tennessee Highway Patrol standards contain provisions prohibiting officers from stopping drivers who make safe, legal u-turns or turn-offs to avoid the roadblock.  If an officer witnessed such activity, that alone would not be reasonable suspicion for the stop and it would be suppressible.

 An interesting case has come out of the Tennessee Court of Criminal Appeals recently.  It is State v. Brown.  That is the majority opinion; for the dissent click here.  This is a case where the defendant was stopped for speeding and allowed the officer to search his vehicle.  During the search, the officer came across a taped, sealed package.  The officer felt the box, stated he became suspicious, then peeled back the tape.  In the box was a brick of cocaine.  The officer said that he could “feel the brick” before he opened it.  The defendant moved to suppress the cocaine and was denied by the trial court.  He then pled guilty, but reserved the validity of the search as a question of law.

This case deals with what’s called the “plain feel” doctrine.  The plain feel doctrine is an extension of the plain view doctrine, which allows for objects to be seized if 1) the object is in plain view, 2) the officer has not violated the Fourth Amendment in arriving at the place from which the object could be plainly viewed, 3) the incriminating character of the object must be immediately apparent, and 4) the officer must have a lawful right of access to the object to be seized.[1]  Meanwhile, the plain feel doctrine provides that officers may seize contraband detected solely through the officer’s sense of touch if the officer had the right to touch the object in question and upon tactile observation, the object’s identity as contraband is immediately apparent.[2]

During the search of a car an officer can look inside of a paper bag.  They can look under the seats or under other objects.  If the search is pursuant to the owner’s consent, and with no limitations, the standard for measuring the scope of the consent is that of objective reasonableness—what would a reasonable person have understood by the exchange between the officer and the subject.[3]  But what about an object that is locked, sealed, or otherwise closed off?  I think that would go beyond the consent.  The police can feel around it, but its identity as contraband must be immediately apparent.  If it is apparent, they can search it further.  If not, they must move on.  In this case, I have a hard time believing the officer could tell immediately tell there was a brick of cocaine in the box.  The appeals court found that in the trial court suppression hearing, the officer testified that he was trained in drug interdiction.  Apparently, to them this was good enough.  

That’s it? 

Does simply saying you’re trained in drug interdiction give you the ability to immediately identify narcotics in a box?  Does it give you x-ray vision?  Sure, the officer can say that he had a suspicion of drug activity.  He can say that the defendant appeared nervous, was moving around in the car after being pulled over, had several cell phones in the car, and gave inconsistent answers.  But you can’t arrest somebody for that.  You need more.  And that does not let the police tear open a securely taped box.  With this case the courts have dangerously expanded the extent to which the government can go through citizens’ personal things.  The defendant may appeal to the Tennessee Supreme Court.  If they do it’ll be interesting to see what happens.

But most arrests happen before indictment, and with that the individual can have a preliminary hearing.  The importance of preliminary hearings for the defense can be boiled down to this: it’s a free shot at the government’s witness.  The government must bring their witness(es) to court and have them testify.  To prevail, they must establish probable cause.  A prelim is not to find guilt; it is to establish probable cause that the crime did occur and that the case can move on to the grand jury.  So the witness must come to court, testify, and be subject to cross-examination.  As a defendant, you want that witness to be cross-examined.  You want them to recount as many details of the event as possible.  How good is their memory?  What did they really see?  Additionally, the testimony must be recorded or transcribed by a court reporter.  If it’s not then it’s no good.  The court doesn’t provide a reporter for preliminary hearings like they do for trials, so it is up to the attorney to do this.  Having the testimony preserved can help a client down the road if the case goes to trial, because if that same witness says something different in front of a jury, guess what?  I’ll whip out the recording, or the transcribed copy, and I’ll ask the witness, “Do you remember testifying last year in a preliminary hearing in this case?”  That’s called impeachment.  In all of my jury trials where the government’s witness had testified at a preliminary hearing, I had copies of that previous testimony and was able to use it to my client’s advantage at trial.  Believe me, having that prelim testimony can be invaluable.  

There are some tactical decisions a lawyer must make with preliminary hearings.  If my client is in jail, I will have the hearing because we’ve got nothing to lose.  If the client is not in jail, though, you have to consider what might happen if you win the hearing.  You see, sometimes the defense wins the hearing.  Often, the object is not to win but simply to gather information.  But if the defense wins, the charge is dismissed and everyone goes home.  How can the defense win?  Maybe the witness doesn’t show up to court.  Maybe they can’t identify anyone, or maybe the elements of the statute simply aren’t met.  Even with a dismissal, however, the government can still indict the client and the whole thing starts all over.  This is where you have to take into consideration whether the client is in jail or not.  If they are in jail (haven’t made bond), I go ahead and have the hearing.  If I lose, the client stays in jail on their bond and the case moves to the grand jury.  If I win, the case is dismissed and the client is released.  Now, if they are indicted three months down the road they will be arrested again.  However, they’re in no worse position than they were before.  Compare that to if the client has posted bond and is free.  If I lose the hearing, again the case goes to the grand jury and the client remains free on their bond.  But if I win…yes, the case is dismissed but if the client is subsequently indicted they will be arrested again and have to post another bond.  This is something I talk about with my clients who have made bond.  We must weigh the value of having that preliminary hearing testimony with the risk of being re-arrested and having to pay another bond. 

Restoration of civil rights is a matter of state law, meaning one must go through the laws of the state of their conviction to get their rights restored.  Generally, restoration of civil rights requires a state to restore the right to vote, the right to hold public office, and the right to sit on a jury.  Does that mean if a convicted felon gets their rights restored they can now own a gun?  Not so fast.  Go back to USC Sec. 921(a)(20): “...unless such…restoration of civil rights expressly provides that the person may not…possess…firearms.”  This is known as the “unless” clause.  A felon may own a firearm free and clear of the federal law, unless some limitation is put on them by the state in which they were convicted.  And this can be any kind of limitation.  To illustrate this, let’s look at Tennessee’s law regarding felons and guns. 

Tenn. Code Ann. 39-17-1307(b)(1) states “A person commits an offense who possesses a handgun and (A) Has been convicted of a felony involving the use or attempted use of force, violence, or a deadly weapon; or (B) Has been convicted of a felony drug offense.”  Here, the state law is limiting gun ownership of people convicted of certain felonies.  They cannot possess handguns.  Because state law limits these particular felons, the federal “unless” law is activated, and under federal law they cannot own any firearms, including rifles or shotguns.  So if someone has been convicted in Tennessee of a felony listed in –1307(b)(1), they cannot own a gun.  But if it’s any other type of felony, provided they weren’t lucky enough to get a pardon or were not eligible to have it expunged they may, after restoration of civil rights, own a gun.

What happens if the dog alerts to the car?  What can the officer then do?  They can search the inside of the car.  They can search a passenger's belongings in the car.  They also could probably search a person sitting in the car, especially if they were sitting near where the dog alerted.  Legally, they could not search the driver (or a passenger) if they were standing outside the car at the time of the sniff; practically, however, the individual could end up getting searched if, based on what was found in the car, they were then arrested.  But they would have to be arrested first.  However, if nothing were found in the car there could be no search of the person.  Likewise, if the officer searched them immediately after the dog alerted, it would be illegal and suppressible.

What is the penalty for a conviction of this crime?  It is punishable up to 11 months and 29 days in jail.  Most, if not all violators would be given a suspended sentence, meaning they would serve that time on probation.  Qualified applicants would have the opportunity to have the charge expunged from their record.  What if the person had a valid Tennessee handgun carry permit?  What would happen to that and their weapon?  Upon conviction, the permit would have to be surrendered to the court, where it would then be transferred to the Department of Safety.  See TCA 39-17-1352(f).  Note that this is so for any Class A misdemeanor conviction, whether a gun was possessed or not.  During the sentence, the Department keeps the permit and the defendant does not enjoy any privileges from it.  Once the sentence is complete, the individual may get the permit reinstated by paying a fee.  In order to do this, all fines, court costs and restitution must be paid, and all conditions of probation must be fulfilled.  What happens to the gun itself?  It will likely be seized, but the owner may be able to get it back after completing the sentence.  Most, if not all courts make it a condition that the person cannot possess any firearms while on probation. 

Of course, if there are any defenses such as the legality of the traffic stop or whether the person was under the influence, they would have to be explored.  What I have outlined above is a worst-case scenario for a handgun permit holder.

While TCA 39-17-1308 provides for some limited defenses to the offense of unlawful carrying or possession of a weapon, our State Attorney General, in an opinion from 1998, declared that the legislature clearly intended that law to apply as a defense only to prosecutions under TCA 39-17-1307--unlawful carrying or possession of a weapon.  See Tenn. Op. Atty. Gen. No. 98-151.  Therefore, the defenses listed in 39-17-1308 (possession or carrying at defendant's place of residence, business, or premises) may not be asserted as a defense to prosecution for possession of a handgun while under the influence.

What I'm writing about today is the question: Can you be arrested and convicted for DUI if you weren't actually driving the car?  What if you had pulled over to sleep it off?  This is what DUI defense expert Lawrence Taylor refers to as Parking Under the Influence.  The answer is yes you can be.  The Tennessee law says you merely have to be in physical control of the vehicle.  In these situations, the government does not have to prove that you ever drove the car while under the influence.  They have to simply prove that you at some point became impaired and then placed yourself in a position to immediately put the vehicle in motion.  They also would have to prove that the car actually worked, and to that end the Tennessee Supreme Court adopted a standard that the car must be "reasonably capable of being rendered operable."  State v. Butler, 108 S.W.3d 845, 852 (Tenn. 2003).  Even with a flat tire, then, you could be arrested because the car could be placed in motion immediately so as to present a danger to the public.

Isn't some of this unfair?  This is an example of how DUI is written to be a strict liability crime.  By that I mean that no culpable mental state is required.  For instance, First Degree Murder is an premeditated and intentional killing of another.  Most crimes have some kind of required mental state: intentional, reckless, negligent, or others.  But DUI is one of the strict liability crimes (there's a few out there).  All the government needs is for you to do the act.  In fact, you could have the best of intentions and still get arrested for DUI.  Maybe you feel like you've had too much to drink, and you've called a cab to take you home.  You get in your car to wait with your keys in your pocket.  That's a DUI arrest waiting to happen.  What's bad about this kind of law is that citizens are punished for what might happen, not what actually did happen.  You might drive, they figure, so you must be punished. 

Will my child be arrested?  Possibly.  Juveniles can either be taken into custody or given a citation.  Minor offenses will get them a citation, which is not unlike when you get a speeding ticket.  The court date will be there on the form or perhaps they'll have to contact the court later for the date.  If the child is taken into custody, they will either be released to a parent or guardian within a reasonable amount of time by the arresting officer, or they will be taken to the juvenile detention center and held there.  You can read juvenile detention center as "jail for kids."   What does it take to land in there?  There must be probable cause to believe that the child has committed "a crime against a person resulting in the serious injury or death of the victim or involving the likelihood of serious injury or death to such victim," or that the child has committed unlawful possession of a handgun or carrying of a weapon.  That's from our statute, the Tennessee Code Annotated, section 37-1-114(c).  Children may also be locked up if they are on probation, have a pending charge, or are an escapee from another facility.  If and when a child is detained, the parents will be notified as soon as possible.  After being placed in detention, a child must be given a detention hearing within 72 hours.  The purpose of this hearing is to determine whether further detention is required.  If at all possible, parents should have a lawyer at this hearing.  This is where I would argue for immediate release without a bond.  The court may do this or, depending on the circumstances of the alleged offense, as well as the juvenile's record, the court may set a bond.

Depending on the seriousness of the case, the defense lawyer may be able to get a quick resolution through negotiation with the prosecutor and/or court probation officer without going through an adjudication.  Adjudication is a hearing to determine the facts.  As the attorney, I would at this point want to get together school records, medical background, and any favorable information such as extracurricular activities, community work, etc.  The possible outcomes of the case could vary.  The government could defer proceedings for a period of time, with the agreement to drop the charge if there are no more violations.  Or it could place the child on probation.  There is no one set way to do it. I have represented children in numerous areas courts, and how the case proceeds depends on the facts, the court, the judge, the probation officer,and the prosecutor.  But I can say that in my experience, if the case is not a serious violent crime, it can often be resolved informally without a lengthy hearing or resets.

If the case cannot be resolved through negotiation, the next step would be either an adjudication hearing or a transfer to criminal court.  I'll discuss transfers first.  Sending a case to criminal court means the government wants to try the child as an adult.  If the child is transferred, and if they are convicted, they would be sentenced as if they were an adult.  Under Tennessee Code Annotated 37-1-134, children may be tried as adults.  Whether a child would be tried as an adult really depends on many things: their age, the crime, prior record, medical history, and what comes out at the transfer hearing.  This is a hearing before a juvenile court referee to determine the facts and whether the case should be sent to criminal court.  I will say this.  Here in Memphis 16- and 17-year olds, especially in cases of violent crime, will be bound over just about every time.  15-year olds and under have a better chance of staying in juvenile court. 

If the case is not settled by agreement and is not bound over, it will be adjudicated.  This is a hearing in front of the referee to determine the facts.  Both sides may put on proof.  The first issue is whether the allegations against the child are true.  The next issue is whether the child is in need of treatment.  The court must be convinced that 1) the charge has been proven beyond a reasonable doubt, and 2) the child is in need of treatment and rehabilitation before finding them delinquent.  Note that the word "guilty" is never used with kids.  It's delinquent.  Findings of delinquency cease to exist once the child turns 18.  If the court does not find the child delinquent, it will dismiss the case.  If it does find delinquency the next step is the disposition hearing, which is where the court decides what to do.  Possible dispositions depend on the seriousness of the offense.  Again, as the attorney I would want to gather as much favorable information as possible, along with family members to testify at court, to get the best possible outcome.  It could be probation with special conditions such as restitution, community service, and counseling, or the child could be put into the custody of a facility like Shelby Training Center.

There are a lot of factors at play with a criminal juvenile case, and it's hard to say at the beginning what exactly will happen.  Keep in mind that juveniles have the same rights as adults.  When it comes to speaking to the police, neither you nor your child have to.  Do not let your child give a statement without you being there.  If you're ever uncomfortable with the questioning, you can stop.  Tell them you want a lawyer for your child.  Also, if your 16- or 17-year olds are out driving, they do not have to let the police search their car just because they ask.  These are rights we all have, and remembering them could help your child down the road should they need a lawyer.

It has to do with a police officer who was charged with Assault, then pled guilty and went on diversion.  When he went back to being a police officer, he put down on the certification application that he had pled guilty to the charge.  Even though he was never convicted, and he got the guilty plea expunged, the POST Commission decertified him, meaning he would no longer be a police officer.  The Commission looked to Tennessee Code Annotated 38-8-106, a law that says "any person employed as a full-time police officer...shall...not have been convicted of or pleaded guilty to any violation of any federal or state laws relating to force or violence."  The Commission figured since the guy had pled guilty, that automatically disqualified him.  Apparently, the Commission also relied on a couple of administrative rules that say expunged offenses are disqualifying to work in law enforcement unless they (the Commission) grant a waiver from that requirement. 

The Court of Appeals took one look at this and said no way.  They said that what controls here are not some administrative rules, but the actual judicial diversion law.  That law, TCA 40-35-313, says that the effect of diversion is to put the person back to where they were before they were arrested.  Anything that happened after that--arrest, indictment, plea, trial--is wiped away and does not exist.  Furthermore, the law allows the person to deny the existence of any legal activity about the case.  That means you can go on diversion, and after expungement you can say you were never arrested, indicted, tried, or convicted.  You can put that on a job application, you can swear to it in a court of law.  The Appeals Court said the Commission was wrong to ever consider the officer's guilty plea.  Once he completed diversion and had it expunged, they said, it's like it never happened.  They threw the Commission's decision out and reinstated the guy as a policeman.

The important thing to remember here is that if you have successfully completed diversion and have gotten the expungement, you do not ever have to say you've pled guilty to something.  You don't even have to say you were arrested.  It's wiped away.  If you do inadvertently say you were arrested or found guilty, and you are denied a job because of it, you may have something to fight back with.  Here, the guy was applying for a government job and there are certain rules and laws they have to go by.  In the private sector, though, it's a little different.  You don't get the same protection or due process.

Pre-trial diversion is the quicker, easier way to go, but the requirements are tougher and a client can do it only after they've been indicted.  An indictment is a formal notice of the charge issued by the grand jury.  Here in Memphis, it takes several months after arrest to get indicted in State court.  See, before being indicted a person handles their case in General Sessions.  One of two things will happen when the case is in Sessions: it will either be disposed of (guilty plea, dismissal, etc.) or it will move up to Criminal Court.  On the way to Criminal Court, the case must pass through the grand jury.  If the grand jury finds there is enough evidence, they will indict the person.  So only after a client's been indicted can I look into pre-trial diversion.  Pre-trial diversion is great if you can get it.  What it is is a suspension of the prosecution against the defendant.  It's also known as attorney general diversion because it is the attorney general (prosecutor) who will suspend the case.  They basically will agree not to do anything on it for up to two years, and if at the end of that time the defendant's done everything they need to do and has stayed out of trouble, the case will be dismissed.  Whether the client gets it is completely up to the prosecutor.  What's great is that the client doesn't have to enter a guilty plea.  This is especially beneficial to immigrant clients who are trying to get citizenship or residency, because a guilty plea of any kind, even if it's later removed, would be bad for them.  I don't know immigration law, but I do know that to ICE a criminal conviction is like the death penalty.  The drawback to pre-trial diversion is that you have to wait to be indicted.  Like I said, here in Memphis that's going to take several months.  You may want to dispose of your case when it first gets into General Sessions, but to do that you have to enter a guilty plea.  Also, the case can be suspended only for up to two years, which means the case for which you've been charged must have a maximum two-year sentence.  Many diversion-eligible charges fall outside of this.  For instance, a person eligible for diversion indicted on a class C felony in Tennessee is looking at 3-6 years.  They would not qualify for pre-trial diversion. 

The other type of diversion is called judicial diversion.  This is where a client enters a guilty plea and begins their probation, but the judge does not enter a judgment of guilt.  It's a deferral.  Clients can enter judicial diversion at any time, whether in General Sessions or Criminal Court, and the deferment can last up to six years.  At the end of their probation, the client can request to have the record of their conviction expunged.  All public records of the conviction are destroyed, although the court keeps a non-public record for the sole purpose of preventing the individual from qualifying again. 

How does one qualify for diversion in Tennessee?  The biggest thing is that a client cannot have a prior felony or Class A misdemeanor conviction, and cannot have gone on diversion before.  As part of the application process, the client must go through a Tennessee Bureau of Investigation background check.  This check will tell if they qualify.  Also, the charge for which they are applying for diversion cannot be a Class A or B felony, a sex offense, a DUI, or Driving with a Suspended, Canceled, or Revoked License.  That means if you are convicted of one of those offenses, it will stay on your record forever. 

An important thing to remember about diversion is that you qualify for it only once.  So if you're facing a criminal charge and you qualify, might as well use it while you've got it.  Notice that any conviction below a class A misdemeanor does not disqualify one from future diversion.  So if a client is facing, say, a reckless driving (Class B) or disorderly conduct (Class C) charge, they could be convicted and keep their eligibility.  However, I would not want the words "reckless driving" or "disorderly conduct" next to my client's name for the rest of their life.  At that point I would try to get a dismissal of the charge, followed by an expungment.

Here’s an article from today’s Memphis Commercial Appeal: http://www.commercialappeal.com/news/2008/apr/30/defense-of-life-justifies-killings/

It has to do with the number of “justifiable homicides” so far this year in the Bluff City.  This is a topic that has come up frequently in news lately.  With all the crime in this town, people are getting fed up and are taking steps to protect themselves.  I don’t have the numbers, but I am sure the number of handgun carry permits is on the rise in this state.  I’ve heard, for instance, that it takes twice as long to get one now as when I got mine last August.

With more and more people out there carrying firearms, you need to know the laws about self-defense.  They go over this with you in the class you have to take for the permit, but that really is not comprehensive enough.  If you’re going to walk around with the power to take human life, you need to really know and understand the laws.  Failure to do so can make things very, very unpleasant.  So today we’re going to go over the Tennessee self-defense laws, particularly as they relate to deadly force.  We’re focusing on criminal, not civil liability.  We’re focusing on whether you would be arrested, not sued.  I’ll deal with the civil lawsuits another day.  The Tennessee statute is in the Tennessee Code Annotated Title 39, Chapter 11, Section 611.  I’ll just refer to that as TCA 39-11-611.  It says:

Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury, if:

(A) The person has a reasonable belief that there is an imminent danger of death or serious bodily injury;

(B) The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and

(C) The belief of danger is founded upon reasonable grounds.

Folks, I understand how difficult things can get in the heat of the moment, but this is not rocket science and you should be able to remember these principles if you are faced with a threatening situation.  You need a reasonable belief that there is an imminent danger of death or serious bodily injury.  Remember that, and you’ll never get arrested and prosecuted for murder.  Take some time to read this and other laws, and then think about them.  Apply them to real-world hypothetical situations.  Most obviously, this law means you cannot shoot somebody in defense of property, because property cannot suffer death or serious bodily injury.  So if you catch someone trying to steal your car, like the guy here in Memphis did a few weeks ago, don’t chase after them and kill them.  Defense of property does not justify deadly force.

Now.  In the next section, the law gives us a presumption of a reasonable belief of death or serious bodily injury in certain situations.  This is good.  We like it when the law gives us presumptions.  We’re given this presumption when someone unlawfully and forcibly enters our residence, dwelling, or vehicle.  This last one is interesting.  Vehicle.  The legislature just added it last year.  It’s because of carjackings. 

This presumption of the necessary reasonable belief is a codification of the castle doctrine.  This is an old concept of law that gives a person the right to use deadly force against intruders in their home (castle).  Note that in Tennessee, like I said, we are given the presumption of a reasonable belief of death or serious bodily injury.  It’s actually built into the law.  So if we are asleep at night, hear a bump, go into the living room and in the dark see an intruder, even if we can’t see their face or their hands, we would be justified in firing on them right then and there.  I’m not recommending that, mind you.  Maybe you should and maybe you shouldn’t.  Those are decisions we all have to make there in the moment.  But you would be justified if you did fire.  Contrast that to being out on the street, in public.  If you use deadly force there, there’s going to have to be some kind of articulation from somewhere (a witness, the physical evidence, etc.) that you held the necessary reasonable belief. 

What about a duty to retreat?  Tennessee, thankfully, has no duty to retreat.  It’s actually written into the subsection I quoted above, and it’s in another one as well.  The law says that a person “has no duty to retreat before threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other’s use or attempted use of unlawful force.”  Two things here.  1) Reasonable belief, and 2) it has to be the same degree of force being used against you.  Some states, unfortunately, do have a duty to retreat.  Some states actually have a duty to retreat in your own home.  This is unsettling.

I support the right to own and carry arms.  I believe that an armed society is a safer society.  However, carrying a gun gives you power, and with that power comes responsibility.  It is up to you and you alone to know the laws regarding your right to use deadly force.  I hope this posting has been helpful and informative.  There will be more, because I enjoy educating others about firearm laws, and I learn a few things myself. 

Tennessee laws:

http://www.michie.com/tennessee/lpext.dll?f=templates&fn=main-h.htm&cp=tncode

The way it would work is that, upon arrest, the driver loses their license.  They then would get an interim license.  Then, the Department of Safety would review the arrest to determine if the individual's license should be revoked.  Revocation would occur where the driver or person in physical possession of the vehicle had a blood alcohol concentration level of .08% or more for drivers age 21 or older, .02% or more for drivers under age 21, and .04% or more for motorists driving a commercial vehicle or if drugs are present in the driver's blood.  If the Department that the arrestee's license should be revoked, notice would be sent to the holder who would then have 10 days to request a hearing.  If a hearing is requested, the Department would have to set a hearing date within 15 days of receipt of request.  If the driver loses at the hearing, they have the right to request judicial review of the decision.  Furthermore, a request for a hearing stays the revocation.

Tennessee is behind the times on this kind of a law: we're one of only 10 states that don't have some kind of administrative license revocation.  With DUI laws getting tougher and tougher, this will likely pass.  But I have a couple of questions over it.  One, how much of a "hearing" are you entitled to?  Do you get to have a lawyer?  Put on proof?  Also, a driver could blow a .08 or higher on the test and still be far from guilty of DUI.  An improperly administered test, and the government takes away a citizen's driving privilege.